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National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017

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2016-2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 (Circulated by the authority of the

Minister for Social Services, the Honourable Christian Porter MP)



 



Contents

OUTLINE .. ii

FINANCIAL IMPACT STATEMENT . v i

NOTES ON ITEMS .. 1

SCHEDULE 1 - NDIS QUALITY AND SAFEGUARDS COMMISSION .. 2

Overview .. 2

Commencement 2

Part 1 Amendments . 2

National Disability Insurance Scheme Act 2013 . 2

Division 1 - Information held by the Agency . 8

Division 2 - Information held by the Commission . 9

Division 3 - Information generally . 1 3

Part 3A - NDIS providers . 13

Division 1 - Application of Part 1 4

Division 2 - Registered NDIS providers . 15

Division 3 - Quality assurance . 2 7

Division 4 - NDIS Code of Conduct 2 8

Division 5 - Complaints management and resolution . 2 9

Division 6 - Incident management - registered NDIS providers . 30

Division 7 - Protection of disclosers . 33

Division 8 - Compliance and enforcement 35

Division 9 - NDIS Provider Register 47

Chapter 6A - NDIS Quality and Safeguards Commission .. 50

Part 1- Commission establishment and functions . 50

Part 2 - NDIS Quality and Safeguards Commissioner 50

Part 3 - Staff etc. of the Commission .. 61

Part 2 - Transitional rules . 66

SCHEDULE 2 - NATIONAL DISABILITY INSURANCE SCHEME REVIEW ... 68

Part 1 - Amendments . 71

Part 2 - Application provisions . 81

REGULATION IMPACT STATEMENT . 1

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS .. 1

 

 

NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017

 

 

OUTLINE

 

The National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (the Bill) establishes an independent national Commission, to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services under the National Disability Insurance Scheme (NDIS).  

 

In response to an independent review of the National Disability Insurance Scheme Act 2013 (the Act) conducted in 2015 under section 208 of the Act, the Bill also makes administrative amendments to ensure the efficient and effective operation of the Act.

 

In February 2017, the Disability Reform Council released the NDIS Quality and Safeguarding Framework (the Framework) which addresses many of the issues raised in the Senate Inquiry into violence, abuse and neglect against people with a disability in institutional and residential settings (the Senate Inquiry).  The Framework was developed in consultation with people with disability, carers, providers and peak bodies over a three-year period.  

 

The Framework includes measures targeted at individuals, the workforce and providers to strengthen their capacity (in the developmental domain), to prevent harm and ensure quality services (in the preventative domain), and to resolve problems, enable improvements and provide oversight (in the corrective domain).  It outlines the ongoing commitment of all jurisdictions to quality and safeguards for people with disability.

 

The Bill is an important step towards implementing the Framework and giving effect to the Commonwealth Government’s regulatory responsibilities under the Framework. 

 

A series of recent inquiries and reports have documented the weaknesses of the current safeguarding arrangements for disability services, many of which result from a disconnection between quality assurance and oversight regulatory functions.  These inquiries include the Senate Inquiry, Victorian government inquiries, and the Royal Commission into Institutional Responses into Child Sexual Abuse.  The inquiries found failures to uncover, report and respond to abuse, and inadequate national screening of workers.  They called for nationally consistent provider accreditation and the use of behaviour support strategies that do not involve restrictive practices to reduce challenging behaviours.

 

The Bill addresses many of the issues raised in these inquiries for the NDIS.  For people with disability, their families and carers, the Bill contains national obligations and standards which apply to all NDIS providers and workers, including through an NDIS Code of Conduct and arrangements for reporting and complaints with appropriate protections and sanctions. 

 

The NDIS represents a dramatic shift from services delivered under largely block-funded contractual relationships between providers and primarily State and Territory governments, to one where people with disability are the purchasers and consumers of services from a diverse market under the NDIS.  The Commission will be a fit-for-purpose, evidence-based, risk-responsive regulator of the new and emerging NDIS provider market.

 

The new arrangements replace a complex and fragmented system of quality and safeguards in each State and Territory, delivering a nationally consistent approach.   For providers, the new national approach will enable a single registration and regulatory system regardless of how many jurisdictions the provider operates in, reducing duplication and providing national consistency.

 

The Bill will further the objects and principles of the Act and uphold the rights of people with disability, as part of Australia’s commitment to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) to prevent exploitation, violence and abuse of people with disability.  Specifically, the Bill achieves this through:

·          advancing the protection of the rights of people with disability in Australia, consistent with Australia’s commitment to the UNCRPD;

·          balancing the need to provide appropriate protections, with the need to enable people with disability to take reasonable risks so they can reach their goals;

 

·          focussing on building the capacity of people with disability, their families and carers to make informed decisions about NDIS providers and pursue complaints;

 

·          supporting a strong and viable market for disability supports and services that offers people with disability genuine choice and control; and

 

·          adapting to the emerging market-based system in which; people with disability are building their capability to be informed consumers; the workforce is growing rapidly and new providers are regularly entering the market with innovative supports and services to enable people with disability to live ‘an ordinary life’.

The NDIS represents a significant reform to the way in which supports and services are delivered to people with disability.  In the new market-based system, participants choose their providers and services, rather than providers being contracted for bulk services at an aggregate level by government agencies.  This means service provider compliance requirements, currently managed through funding agreements and government contracts, will no longer exist.  This poses a significant risk in terms of provider quality and participant safety, particularly in an immature and rapidly expanding market.  A more deregulated market-based environment will also result in the entry of a large number of new providers who may have limited or no experience in the sector, potentially using new and unproven business models, or who may have uncertain financial viability.

 

A robust national system for regulation is required to mitigate these risks and achieve a balance between the realisation of the NDIS vision to support people with disability to make informed choices, while also promoting high quality supports and services with appropriate safeguards in the new market environment.  As the Commission will be established within the Act, the existing objects and principles concerning the rights of people with disability will underpin and inform the regulatory activities of the Commission. 

 

At full scheme NDIS, the Commission will be responsible for overseeing quality supports and services for people with disability who are receiving NDIS supports and services such as Information, Linkages and Capacity (ILC) Building to connect people with disability, their families and carers, with community and mainstream supports and create greater inclusivity and accessibility. The primary focus of the Commission will be regulating NDIS providers to ensure that NDIS participants receive the standard of service they deserve. There are, however, a range of other providers who are providing similar services to people with disability. The Bill will cover ILC Building funded under the NDIS and the NDIS rules may prescribe providers of other programs for people with disability to be covered by the Commission’s quality and safeguards arrangements.  

 

Disability services delivered through other systems, such as health, education and justice, will continue be covered by the quality and safeguarding arrangements for those systems.  Universal complaints and redress mechanisms, including police, fair trading bodies, professional and industry bodies, consumer protection laws and other regulatory and complaints systems will continue to be available to both NDIS participants and people with disability outside the NDIS. 

 

The proposed changes will mean that people with disability, their families and carers are better off because they will have a single body to raise concerns about the quality of supports or services being delivered and access to nationally consistent and transparent information about NDIS providers.  

 

Schedule 1 - NDIS Quality and Safeguards Commission

 

Schedule 1 amends the Act to establish the NDIS Quality and Safeguards Commission, as an independent statutory body with the following integrated regulatory functions:

 

·          registration and regulation of NDIS providers, including Practice Standards and a Code of Conduct;

 

·          compliance monitoring, investigation and enforcement action;

 

·          responding to complaints and reportable incidents including abuse, and neglect of a person with disability;

 

·          national policy setting for the screening of workers;

 

·          national oversight and policy setting in relation to behaviour support and monitoring the use of restrictive practices, within the NDIS with the aim of reducing and eliminating such practices; and

 

·          facilitating information sharing arrangements between the Commission, the National Disability Insurance Agency (the Agency), State and Territory and other Commonwealth regulatory bodies.

 

Schedule 2 - National Disability Insurance Scheme Act 2013 Review

 

Schedule 2 makes a number of amendments to the Act to improve the operation of the Act following an independent review conducted for the purposes of section 208 of the Act.  The amendments align with the Council of Australian Governments (COAG) response to the independent review in December 2016.

 

Background

 

With the agreement of the Disability Reform Council in July 2015, the Minister for Social Services commissioned Ernst & Young to conduct an independent review of the Act.  It is a requirement under section 208 of the Act that such a review be undertaken two years after the commencement of the NDIS. 

 

The purpose of the review was to assess the operation of the Act, as well as to consider whether or not any amendments can be made to further the objects and principles of the Act.

 

The independent review of the Act found that there were opportunities to provide greater clarity to the legislative framework for the NDIS and provided recommendations to COAG for consideration. Recommendations endorsed by COAG included strengthening the objects and principles of the Act, providing a more appropriate description of the purposes of funding for the ILC Building framework developed by the Agency and addressing other technical inadequacies of the legislation.



 

FINANCIAL IMPACT STATEMENT

 

MEASURE

FINANCIAL IMPACT OVER THE FORWARD ESTIMATES

NDIS - Quality and Safeguards Commission - Establishment

$209 million

NDIS Act Review

NIL

 

Establishment of the Commission has a cost of $209 million over the forward estimates.

 

The amendments in Schedule 2 to this Bill will not have a financial impact, as they do not represent a change to the administration of the NDIS.

 

REGULATION IMPACT STATEMENT

 

The regulation impact statement for NDIS Quality and Safeguarding Framework appears at the end of this Explanatory Memorandum.

 

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 (QUALITY AND SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017

 

 

NOTES ON ITEMS

 

In these notes on items, the following abbreviations are used:

 

NDIS

National Disability Insurance Scheme

 

the Act

the National Disability Insurance Scheme Act 2013

 

the Bill

the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017

 

the Framework

NDIS Quality and Safeguarding Framework 9 December 2016

 

the Commission

NDIS Quality and Safeguards Commission

 

the Commissioner

NDIS Quality and Safeguards Commissioner

 

the Agency

National Disability Insurance Scheme Agency

 

NDIS rules

Rules made under the Act

 

 

Clause 1 - Short title

 

1.     This is a formal provision specifying the short title.

 

Clause 2 - Commencement

 

2.     The table in this clause sets out when the provisions of the Bill commence.

 

Clause 3 - Schedules

 

3.          Clause 3 of the Bill provides that an Act that is specified in a Schedule is amended as set out in that Schedule, and any other item in a Schedule, operates according to its terms.

 

4.     The Bill comprises two Schedules which amend the Act.

 



 

SCHEDULE 1 - NDIS QUALITY AND SAFEGUARDS COMMISSION

Overview

 

5.          This Bill establishes the NDIS Quality and Safeguards Commission and the office of the NDIS Quality and Safeguards Commissioner in new Chapter 6A of the Act.

 

6.          The amendments introduce the integrated functions of the Commissioner:

 

  • relating to the NDIS market, particularly in relation to quality and safety;

 

  • registration and oversight of NDIS providers;

 

  • a system to support the management and resolution of complaints about NDIS providers; and

 

  • national policy leadership in relation to the screening of workers and the use of behaviour supports to reduce and eliminate restrictive practices.

Commencement

 

7.          The amendments in Schedule 1 to the Bill commence on 1 July 2018 to align with the commencement of full scheme in some jurisdictions.  This will also allow time to establish the Commission’s information, communication and technology systems to support its operations. The appointment of the Commissioner, engagement of Commission staff and NDIS rules underpinning key functions of the Commissioner will be made from Royal Assent in accordance with section 4 of the Acts Interpretation Act 1901. 

 

Part 1 Amendments

National Disability Insurance Scheme Act 2013

 

Item 1 - After paragraph 3(1)(g)

 

8.          This item inserts a new object into subsection 3(1) of the Act.

 

·       The Act sets out the objects and principles under which the NDIS operates, including giving people with disability choice and control over the care and support they receive, and giving effect in part to the United Nations Convention on the Rights of Persons with Disabilities.

 

·       The objects in section 3 of the Act will apply to the functions and activities of the Commissioner.

 

·       This item introduces a further object to ‘protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme’.

 

Item 2 - At the end of subsection 3(2)

 

9.          This item inserts a new paragraph into subsection 3(2) of the Act which explains that the objects will be achieved in part by establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the NDIS.

 

10.       The primary focus of the Commission will be overseeing the regulatory arrangements for NDIS providers; however there are a range of other providers who are providing similar services to people with disability or supporting people with disability in connection with NDIS supports and services. The NDIS rules may prescribe providers of other programs to be covered by the Commission’s quality and safeguards arrangements. 

 

Item 3 - Subsection 4(9)

 

11.       This item amends subsection 4(9) of the Act so that the subsection applies to the Commission as well as the Agency. 

 

12.       Subsection 4(9) of the Act provides that people with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.

 

Item 4 - Subsection 4(17)

 

13.       This item amends subsection 4(17) of the Act to apply the general principles guiding actions in section 4 of the Act to the Commissioner as well as the CEO of the Agency.

 

Item 5 - Section 8

 

Item 6 - Section 8

 

14.       These items amend the simplified outline at section 8 of the Act to include:

 

·       the regulation of persons and entities who provide supports and services to people with disability under the NDIS. It also regulates supports and services provided outside the NDIS in certain circumstances, where a programme or provider is prescribed by the NDIS rules;

 

·       the new registration arrangements for registered NDIS providers (new Part 3A of Chapter 4) depending on where a person with disability lives, as the Commission is established in participating jurisdictions; and

 

·       the establishment of the NDIS Quality and Safeguards Commission and the office of the NDIS Quality and Safeguards Commissioner (in new Chapter 6A of the Act) and to note the functions of the Commission, which include:

(a)   functions relating to the quality and safety of NDIS services and supports provided to people with disability; and

(b)   registering and overseeing the operations of NDIS providers; and

(c)   managing and resolving complaints about NDIS providers; and

(d)   providing leadership in relation to the use of behaviour supports and in the reduction and elimination of the use of restrictive practices by NDIS providers.

 

Item 7 - Section 9

 

Item 8 - Section 9 (definition of officer)

 

Item 9 - Section 9

 

Item 10 - Section 9 (definition of protected information)

 

Item 11 - Section 9

 

Item 12- Section 9 (definition of registered plan management provider)

 

Item 13 - Section 9

 

Item 14 - Section 9 (definition of reviewable decision)

 

15.       These items define certain terms that are used in the Act.  In this Explanatory Memorandum, the defined terms will be addressed in the context in which they appear.

 

Item 15 - After section 10

 

16.       This item inserts a definition of participating jurisdiction for the purposes of the Act Participating jurisdiction is the term used to commence the NDIS Quality and Safeguards Commission arrangements in each jurisdiction.  New section 10A defines a participating jurisdiction to be a State or Territory that the Minister has previously, by legislative instrument, specified a host jurisdiction and which the Minister has, also by legislative instrument, specified to be a participating jurisdiction.  The host jurisdiction must agree to being specified as a participating jurisdiction. 

 

17.       A note to the section explains that section 42 of the Legislation Act 2003 does not apply to the instrument (see subsection 44(1) of that Act) as it facilitates the establishment or operation of an intergovernmental scheme involving the Commonwealth and one or more States. 

 

18.       A concept of a host jurisdiction is defined in section 10 of the Act and was used to establish the NDIS in States and Territories.

 

19.       The Minister and a host jurisdiction will enter into an agreement for the purposes of commencing the transition of providers from existing State and Territory quality and safeguards arrangements to the Commission.  The agreements will identify the roles and responsibilities of a State or Territory and the Commission during transition.  An agreement will inform the NDIS rules to be made under Part 2 of Schedule 1 of the Bill to facilitate matters including:

·       the transition of a State or Territory becoming a participating jurisdiction;

·       the transition of a person or entity from a registered provider of supports to a registered NDIS provider;

·       the transition from the application of provisions of laws of the States and the Territories to the application of provisions of the Act.

 

20.       Schedule 1 of the Bill will not commence until 1 July 2018 which means that it will not have jurisdiction over any incidents or complaints occurring prior to a State or Territory becoming a participating jurisdiction.

 

Item 16 - At the end of Part 4 of Chapter 1

 

21.       This item inserts a definition of key personnel of a person or entity.  New section 11A applies the term key personnel to people who have executive, management and operational authority or responsibilities and includes people who have significant influence over planning directing or controlling the activities of a person or entity.  New subsection 11A(2) applies the definition to directors of a body corporate and in any other case, a member of the person’s or entity’s governing body.

 

Item 17 - Subsection 33(6)

 

22.       This item amends subsection 33(6) of the Act to cover supports provided by a registered NDIS provider in a participating jurisdiction.  Subsection 33(6) of the Act explains that to the extent that funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by a registered provider of supports.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                               

Item 18 - Section 49 (note 2)

 

23.       This item is a technical amendment to omit the words ‘paragraph 99(d)’ at section 49 (note 2) and substitutes the words ‘subsection 99(1)’ to align the note with the new numbering of the Act. 

 

Item 19 - Paragraph 54(2)(d)

 

24.       This item omits the word ‘officer’ and substitutes the words ‘Agency officer’ to make it clear that this section only relates to an officer of the Agency. 

 

Item 20 - Section 55 (heading)

 

25.       This item amends the heading of section 55 of the Act to make it clear that the section refers to the power of the CEO of the Agency (and not the Commissioner).

 

Item 21 - After section 55

 

26.       This item inserts new section 55A which empowers the Commissioner to require a person (other than a prospective participant or a person receiving supports or services from an NDIS provider) to give information or produce a document to the Commissioner if the Commissioner has reasonable grounds to believe that the information or document may be relevant to one of the matters specified in subsection 55A(2).  

 

27.       The matters for which the Commissioner may obtain information are directed towards ensuring NDIS provider compliance with the Act and NDIS rules.  They are limited to:

 

·       whether a person applying for registration under new subsection 73E(1) satisfies the requirements mentioned in that subsection;

 

·       whether a registered NDIS provider is meeting the conditions of registration mentioned in new subsection 73F(1);

 

·       whether an NDIS provider, or a person employed or otherwise engaged by an NDIS provider, is complying with the requirements of the NDIS Code of Conduct;

 

·       whether an NDIS provider is contravening new subsection 73B(2) (requirement to be a registered NDIS provider);

 

·       if an NDIS provider, or a person employed or otherwise engaged by an NDIS provider, is subject to a banning order—whether the person is providing supports or services in contravention of the order;

 

·       the functions of the Commissioner.

 

28.       The power to obtain information may be used by the Commissioner in order to make initial enquiries about whether an NDIS provider may have contravened, is contravening, or is likely to contravene the Act.  This will enable informed decisions to be made about whether to commence monitoring powers under Part 2 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) or an investigation under Part 3 of that Act.  Importantly, it does not extend to requiring information from prospective participants or persons receiving supports or services from an NDIS provider.

 

29.       This power may also be used to support the Commissioner’s inquiry function under the complaints and reportable incident arrangements in Division 5 and Division 6 outlined below.

 

30.       In addition to ensuring the integrity of the NDIS, the protection of people with disability from poor quality or unsafe supports or services, and ensuring NDIS provider compliance with the Act, the purpose of this new section is to enable the Commissioner to collect and obtain information required in order to perform his or her functions.

 

Item 22 - Subsection 56(1)

 

Item 23 - Paragraph 56(2)(c)

 

Item 24 - Paragraph 56(2)(d)

 

Item 25 - Subsections 56(4) and (5)

 

31.       These items are technical amendments to section 56 of the Act to apply the requirements under section 56 in relation to written notices to the Commissioner in exercising powers under new section 55A.

 

32.       Section 56 provides that a notice given under section 55 of the Act or new section 55A must be in writing, and must specify certain information, which reflects the requirements in section 54.

 

33.       In addition, subsection 56(4) provides that a notice may require the person to give the information requested by appearing before a specified officer to answer questions.  If the notice includes a requirement to appear before an officer and to answer questions, then it must also state the time and place where the person must appear, and the time must be at least 14 days after the notice is given.

 

Item 26 - Subsection 57(1)

 

34.       This item is a technical amendment to extend the operation of section 57 to a requirement to give information, or produce a document to the Commissioner under new section 55A.

 

35.       Section 57 provides for a criminal offence for the failure of a person (other than a participant, prospective participant or person receiving supports or services from an NDIS provider) to comply with a requirement under section 55 and new section 55A, unless they have a reasonable excuse.  The penalty is a maximum of 30 penalty units.  A penalty unit is prescribed for the purposes of the Crimes Act 1914 .  That Act also provides that, if a body corporate is convicted of an offence, a fine of up to five times the penalty stated can be imposed.

 

36.       The burden of proving whether a person has a reasonable excuse is on the defendant, by virtue of subsection 13.3(3) of the Criminal Code.  This provision in the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification provided by the law creating an offence bears an evidential burden in relation to that matter.

 

Item 27 - Subsections 58(1) and (2)

 

37.       This item amends subsections 58(1) and (2) of the Act to extend the operation of section 58 to the Commissioner and distinguish between a Commission officer and an Agency officer.

 

38.       Section 58 clarifies that the obligation to give information, produce a document or give evidence for the purposes of the Act is not affected by State or Territory laws (subsection 58(1)).  However, under subsection 58(2), a person is not required to give the required information or documents to the Agency or the Commission if the person would be prevented from doing so under a law of a State or Territory and that law has been prescribed by the NDIS rules.

 

Item 28 - Before section 60

Division 1 - Information held by the Agency

 

Item 29 - Paragraph 60(2)(a)

 

Item 30 - Section 62 (heading)

 

Item 31 - Paragraph 62(c)

 

Item 32 - Section 63 (heading)

 

Item 33 - Paragraph 63(a)

 

Item 34 - Paragraph 63(c)

 

Item 35 - Section 64 (heading)

 

Item 36 - Paragraphs 64(1)(b) and (2)(b)

 

Item 37 - Subsection 64(3)

 

Item 38 - Section 65

 

Item 39 - Subsection 66(1)

 

Item 40 - Paragraph 66(1)(a)

 

Item 41 - Subsection 66(2)

 

Item 42 - Subsection 66(3)

 

Item 43 - Section 67

 

Item 44 - Section 68

 

39.       These items are technical amendments which introduce new ‘Division 1 - Information held by the Agency’ in Part 2 of Chapter 4 of the Act.  Consequential amendments are made to sections 60 through to section 68 to clarify those sections only apply to the Agency. 

 

40.          Item 39 and 40 make technical amendments to align the information protections to those established in new ‘Division 2 - Information held by the Commission’.  The amendments strengthen the protections applying to the disclosure of information by the CEO of the Agency and apply a less subjective test to subsection 66(1)(a).  Instead of the CEO ‘certifying’ that it is necessary in the public interest to disclose information in accordance with section 66, the CEO must be ‘satisfied on reasonable grounds’ that it is in the public interest to do so in a particular case or class of cases.

 

Item 45 - At the end of Part 2 of Chapter 4

 

41.       This item introduces:

 

·       new Division 2 of Part 2 of Chapter 4 of the Act in relation to protection and disclosure of information held by the Commission; and

 

·       new Division 3 of Part 2 of Chapter 4 of the Act in relation information generally.

Division 2 - Information held by the Commission

 

New section 67A - Protection of information held by the Commission etc.

 

42.       New section 67A sets out the measures that must be taken for the protection of personal information that the Commission may obtain in the course of performing its functions.  A large amount of personal information will likely be acquired by the Commission through the performance of its functions, and the protection of that information and a person’s right to privacy is considered paramount.  The new information sections are intended to protect the personal, and potentially sensitive, information of people who are affected by the establishment of the Commission and its functions.

 

43.       The meaning of protected Commission information is included in the new definitions contained in section 9, and is information about a person that is or was held in the records of the Commission, or information to the effect that the Commission holds no information about a person.  The definition of protected Commission information does not prevent the disclosure of information about the general workings of the Commission. 

 

44.       A person may only make a record, disclose or otherwise use protected information in the following circumstances:

 

·       for the purposes of the Act;

 

·       for the purpose for which the information was disclosed to the person under new section 67E;

 

·       with the express or implied authorisation of the person to whom the information relates; or

 

·       if the person believes on reasonable grounds that doing so is necessary to prevent or lessen a serious threat to an individual’s life, health or safety (new subsection 67A(1)(e)).

 

45.       New subsection 67A(1)(e) would, for example, enable persons to report incidents involving a threat to an individual’s life, health or safety to relevant State or Territory authorities. 

 

46.       Without limiting new subsection 67A(1), the obtaining, recording, disclosure or use of information is taken ‘to be for the purposes of the Act’ if the Commissioner reasonably believes that it is reasonably necessary for one or more of the following:

 

·       research matters relevant to the NDIS;

 

·       policy development.

 

47.       People need to have confidence that the information they provide to the Commission will be protected otherwise there is a risk that they will not come forward to provide information the Commission requires to carry out its functions.  This is particularly important as recent inquiries into disability services have demonstrated regulatory failures in the current mechanisms in place to record and report incidents and to protect and prevent harm to people with disability. 

 

New section 67B - Offence - unauthorised use or disclosure of protected Commission information

 

48.       New section 67B creates an offence of unauthorised use or disclosure of protected information.  The rationale for this offence is that the injury caused by unauthorised use of protected information to an individual can be severe.  A person commits an offence if they make a record of information, disclose information to any other person, or otherwise make use of information (and are not otherwise authorised to so under the Act).  The penalty is a maximum of two years’ imprisonment or 120 penalty units (or up to five times this amount for a body corporate). 

 

49.       This offence does not include a harm element. That is, it is inherently recognised that any unauthorised recording, disclosure or use of protected Commission information is harmful. It is inherently harmful because:

 

·       the Commission will work with people with disability, who are widely viewed as some of the most vulnerable in the Australian community and will be holding information about them;

 

·       the Commission will also be working with providers who work with people with disability;

 

·       there is a need for the Commission to establish and maintain public trust and confidence and act in the public interest;

 

·       there is a need to assure the community (which includes people with disability, providers and people who work for providers) that the Commission will adequately protect information it has been given in the course of carrying out its functions.

 

New section 67C - Offence - soliciting disclosure of protected Commission information

 

50.       New section 67C creates an offence of soliciting the disclosure of protected Commission information.  Soliciting information in the context of this offence includes, but is not limited to, asking or requesting information, to entice or urge a person to provide information or to try to obtain information through bribery or threat. 

 

51.       A person commits an offence if they solicit the disclosure of information from an officer or another person (whether or not any protected Commission information is actually disclosed), the disclosure would contravene the Act, and the information is protected Commission information.  The penalty is two years’ imprisonment or 120 penalty units (or up to five times this amount for a body corporate).  This offence does not include a harm element for the same reasons outlined in relation to new section 67B.

 

New section 67D - Offence - offering to supply protected Commission information

 

52.       New section 67D creates an offence of supplying protected Commission information.  Subsection 67D(1) provides that a person commits an offence if they offer to supply (whether to a particular person or otherwise) information about another person and they know it is protected Commission information.  The penalty is two years’ imprisonment or 120 penalty units (or up to five times this amount for a body corporate).  This offence does not include a harm element for the same reasons outlined in relation to new section 67B.

 

53.       New subsection 67D(2) provides that a person also commits an offence if they hold themselves out as being able to supply (whether to a particular person or otherwise) information about another person, and they know it is protected Commission information.

 

54.       New subsection 67D(3) clarifies that subsections 67D(1) and 67D(2) do not apply to an officer acting in the performance or exercise of duties, functions or powers under the Act.

 

New section 67E - Disclosure of information by Commissioner

 

55.          New section 67E gives the Commissioner the power to disclose information (including information that is protected Commission information) in strictly limited circumstances.  This includes the power to disclose information if the Commissioner is satisfied on reasonable grounds that it is in the public interest to do so - for example, if it is necessary for the protection of persons with disability or the investigation of a criminal offence. 

 

56.       The Commissioner may also disclose information, including protected Commission information, to the head of a Department of State or Territory authority of the Commonwealth (including the Agency), or of a State or Territory for the purposes of that Department or authority.  Information may also be disclosed to persons where this has been expressly or impliedly authorised by the person to whom the information relates.  

 

57.       New subsection 67E(2) provides that, in disclosing information for the purposes of subsection 67E(1), the Commissioner must act in accordance with the NDIS rules made for the purposes of new section 67F.  

 

58.       The Commissioner needs to strictly control disclosures of information provided to it, especially information relating to people with disability.  The Australian Law Reform Committee Report 112 Secrecy Laws and Open Government in Australia 2009, noted that unauthorised disclosure of personal information is harmful to the relationship between the government, affected individuals and the public in general.  This relationship is integral to an effective regulatory system and the integrity of any regulatory regime, especially one aimed at protecting people with disability from harm. 

 

59.       It is necessary to provide for the parameters of this discretion in the NDIS rules as the Commissioner will be operating within the context of complex mainstream systems and services.  The purposes for disclosure, the bodies to whom disclosure can be made and the type of information which may be disclosed is likely to change over time as States and Territories withdraw from the regulation of disability services under the NDIS and establish new arrangements for the protection of vulnerable people under mainstream service systems.

 

60.       The broad disclosure powers of the Commission reflect the fact that the Commission must work effectively with other bodies in promoting and protecting the rights of people with disability, as well as protecting and preventing people with disability from experiencing harm as a result of poor quality or unsafe supports or services.

 

61.       Matters that come to the Commissions attention through complaints and reportable incidents may have wide ranging implications that are broader than the NDIS.  In this context there will at times be a need to disclose information to relevant State, Territory and Commonwealth bodies for further investigation, action or information.  Enabling information to be exchanged with relevant bodies is essential to ensuring efficient and appropriate regulatory and other responses, especially where vulnerable people may be at risk of harm. 

 

62.       New subsection 67E(3) clarifies that the Commissioner may give protected information to a participant’s nominee if it relates to the participant and the information is or was held in the records of the Commissioner.

 

New section 67F - NDIS rules for exercise of Commissioner’s disclosure powers

 

63.       New section 67F provides that NDIS rules may make provision for and in relation to the exercise of the Commissioner’s powers to disclose information for the purposes of subsections 67E(1)(a) or subsection 67E(1)(b)(i), (iii) or (iv).  The rules will need to be made prior to the Commissioner exercising powers under new section 67E.

Division 3 - Information generally

 

New section 67G - Protection of certain documents etc. from production to court etc.

 

64.          New section 67G provides that a person must not, except for the purposes of the Act, be required to produce any document in their possession or disclose any matter or thing they had or knew because of their performance, exercise of their duties, functions or powers under the Act to a court, tribunal, authority or person who has the power to require the production of documents or the answering of questions.

 

65.       This is an important protection and discretion which enables people to provide information to the Commission without fear of it being used against them in proceedings which do not relate to the purposes of the Act.  The new section does not prevent a subpoena being issued to any person who provided the information to the Commission.

 

New section 67H - Part does not affect the operation of the Freedom of Information Act 1982

 

66.       New section 67H clarifies that nothing in this Part relating to the disclosure of information affects the operation of the Freedom of Information Act 1982 .

 

Item 46 - After Part 3 of Chapter 4 (heading)

 

Item 47 - After paragraph 70(1)(c)

 

67.       These items clarify that once the Commission is established in a participating jurisdiction, Part 3 of the Act in relation to the Agency functions of registering providers of supports will only continue to apply to providers in a State or Territory which has not transitioned to the Commission registration arrangements, as a participating jurisdiction.

 

Item 48 - After Part 3 of Chapter 3

 

Part 3A - NDIS providers

 

68.       This item introduces new ‘Part 3A - NDIS providers’ which consists of 9 Divisions.

Division 1 - Application of Part

 

New section 73A - Application of Part

 

69.       Division 1 establishes the scope and application of new Part 3A and provides for access to the registration system for NDIS providers.

 

70.       NDIS providers are defined in the new section 9 definitions to mean a person (other than the Agency) who receives:

 

·       funding under the arrangements set out in Chapter 2 of the Act; or

 

·       NDIS amounts (other than as a participant); or

 

·       a person or entity that:

 

o     provides supports or services to people with disability other than under the NDIS; and

 

  • is prescribed by the NDIS rules to be an NDIS provider.

 

71.       NDIS amounts is defined in section 9 of the Act to mean an amount paid under the NDIS in respect of reasonable and necessary supports funded under a participant’s plan. The amounts are payable under a plan developed for the purposes of section 33 of the Act under Chapter 3.

 

72.       A registered NDIS provider is defined to mean a person or entity that is registered under new section 73E.

 

73.       New section 73A provides that this Part applies in relation to:

 

·       persons or entities applying for registration to provide supports or services to people with disability in participating jurisdictions; and

 

·       registered NDIS providers providing supports or services to people with disability in participating jurisdictions; and

 

·       NDIS providers providing supports or services to people with disability in participating jurisdictions. 

 

74.        NDIS providers in a participating jurisdiction will be covered by the new arrangements established by Schedule 1 of the Bill including for registration established under new Part 3A of the Act.

 

Background - registration arrangements under Part 3 of Chapter 4 of the Act

 

75.       Under the current arrangements, a person or entity may apply to be a registered provider of supports to manage the funding for supports under plans and/or provide supports (sections 9 and 69(1) of the Act).  The registration process is based on the Agency being satisfied that a provider has undergone relevant quality and assurance checks through existing State and Territory safeguarding systems.

 

76.       Participants are able to exercise choice and control about the selection of their providers.  To the extent that funding under a participant’s plan is managed by the Agency, supports are to be provided only by a registered provider of supports (subsection 33(6) of the Act).

 

77.       Under subsection 35(2) of the Act, the NDIS rules may provide for the manner in which supports are to be funded or provided.  This provision and the NDIS rules may stipulate supports for which providers must be registered in order to provide a support for example, the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules .  

 

78.       Part 6 of the National Disability Insurance Scheme (Plan Management) Rules 2013 provides for some supports to be specifically identified in a statement of participant supports (under section 33 of the Act) by reference to the type of support and whether the supports will be provided by a particular provider or delivery mode.

 

79.       The current arrangements for registration by the Agency contained in Part 3 of Chapter 4 of the Act and the NDIS rules for registered providers of supports will continue to operate and appear in the Act over the transition period until they become a participating jurisdiction.

 

Registration arrangements under new Part 3A

 

80.       Under the new arrangements, it is envisaged that an NDIS Registrar will manage the quality assurance and registration of NDIS providers under a nationally rigorous framework including Practice Standards and a Code of Conduct.

Division 2 - Registered NDIS providers

 

81.       Regulatory requirements for NDIS providers will be tailored to ensure regulation is proportionate to the level of risk associated with the services provided.  This means that providers offering supports or services that pose high risks (such as behaviour support, including restrictive practices) will face stricter requirements than those offering lower risk services (such as social activities).

 

82.       Division 2 establishes the application process and matters which the Commissioner must have regard to when determining an application.  Once registered an NDIS provider will be subject to standard conditions of registration, including obligations in relation to the management of complaints and incidents, adherence to the NDIS Practice Standards, Code of Conduct and notification of reportable incidents.  The Commissioner will also be empowered to impose additional conditions on a class of supports, for example providers delivering behaviour supports may be subject to reporting and other conditions relating to the use of restrictive practices.

 

83.       The Commissioner will have the ability to grant financial assistance to providers applying to be registered where the cost of registration associated with an audit would be a barrier to entry, or in regional or very remote locations. 

 

New section 73B - Requirement to be a registered NDIS provider

 

84.       New section 73B provides for NDIS rules to be made to specify classes of supports provided under participant’s plans which can only be provided by registered NDIS providers.  This is an important safeguard to ensure that for certain high risk supports, such as developing or implementing behaviour support plans which may include the use of a restrictive practice, a provider must meet the quality and standards required to deliver those supports. 

 

85.       Where registration is mandated for a class of supports, the registration arrangements provide for a rigorous framework for assessing the quality and safety of supports, prior to a provider entering the NDIS market.

 

86.       New subsection 73B(2) imposes a civil penalty on providers who provide a support under a participant’s plan for which they are required to be registered and they are not registered. 

 

87.       The penalty is a maximum of 250 penalty units.  A penalty unit is prescribed for the purposes of the Crimes Act 1914 .  That Act also provides that, if a body corporate is convicted of an offence, a fine of up to five times the penalty stated can be imposed.

 

88.       The penalty reflects an assessment about the high level of risk that a person with disability may be exposed to if an unregistered provider provides high risk supports but has not gone through the quality assurance process in order to be registered for that category of supports.

 

89.       Registration requirements will include a risk-based proportionate assessment of an application to deliver categories of supports and services against the NDIS Practice Standards.  The NDIS rules will be able to prescribe classes of supports for which registration is required based on emerging risks in a rapidly developing market in which new and innovative supports and services are being offered to people with disability under the NDIS. 

 

90.       This is consistent with the Commissioner’s obligation in new subsection 181D(4) to support and maintain a diverse and sustainable NDIS market.  In response to any changes in NDIS rules requiring provider’s to be registered, the Commissioner will have an important educative role and will conduct compliance and enforcement activities in a risk responsive and proportionate matter.

 

91.       The note to new section 73B clarifies that subsection 33(5) of the Act provides that if the funding for supports under a plan is managed by the Agency, supports are to be provided only by a registered NDIS provider.

 

New section 73C - Application to be a registered NDIS provider

 

92.       New subsection 73C(1) provides that a person (which is defined by the Acts Interpretation Act 1901 to include a company, corporation or body corporate), unincorporated association or a partnership may apply to the Commissioner to be a registered NDIS provider in relation to one or more of the following:

 

·       the provision of supports or services under the arrangements under Chapter 2;

 

·       managing the funding for supports under participant’s plans, or

 

·       providing supports under participant’s plans.

 

93.       New subsection 73C(2) provides that a person may also apply to the Commissioner to be a registered NDIS provider in relation to the provision of services or supports to people with disability other than under the NDIS if they are prescribed for the purposes NDIS rules made under subparagraph (b)(ii) of the definition of NDIS provider.

 

94.       New subsection 73C(3) sets out some basic requirements for the application to be a registered NDIS provider.  The application must be in writing, in the form approved by the Commissioner and include any information and accompanying documents the Commissioner requires.  The note at this subsection clarifies, with reference to new section 197B, that the Commissioner is not required to make a decision on the application if this subsection is not complied with.

 

95.       New subsection 73C(4) provides for the Commissioner to require an applicant for registration to give the Commissioner further information or documents in relation to the application, as the Commissioner reasonably requires.  The request for more information or documents must be in the form of a written notice.  The note at this subsection clarifies, with reference to section 197B, that where the Commissioner does not receive the requested information or documents, the Commissioner is not required to make a decision on an application.

 

96.       New subsection 73C(5) allows the Commissioner to specify, in the written notice outlining the request under subsection 73C(4), a time period by which the applicant is to give him or her the further information or documents requested under subsection (3).  This time period must not be less than 14 days from the time the request was made.

 

New section 73D - False or misleading information or documents in application

 

97.       New section 73D provides that if a person knowingly provides false or misleading information or documents in, or in connection with, an application for registration, that person contravenes the section and a civil penalty applies.

 

98.       The penalty for this section is 60 penalty units.  A penalty unit is prescribed for the purposes of the Crimes Act 1914 .  That Act also provides that, if a body corporate is convicted of an offence, a fine of up to five times the penalty stated can be imposed.

 

New section 73E - Registration as a registered NDIS provider

 

99.       New subsection 73E(1) sets out the matters which the Commissioner must take into account in deciding whether to register a person as a registered NDIS provider:

 

·       the person (the applicant) must make an application in the form provided for in new section 73C;

 

·       the applicant will provide supports or services to people with disability in a participating jurisdiction;

 

·       the applicant has been assessed by an approved quality auditor as meeting the applicable standards and other requirements prescribed by the NDIS Practice Standards;

 

·       the Commissioner is satisfied that the applicant and any key personnel, are suitable to provide supports or services to people with disability, having regard to any matters prescribed by the NDIS rules; and

 

·       the applicant satisfies any other requirements prescribed by the NDIS rules.

 

100.    New subsection 73E(2) provides that a person may be registered in respect of one or more of:

 

·        the management of funding under a participant’s plan;

 

·       the provision of supports under participant’s plans;

 

·       providing specified classes of supports or services under the arrangement set out in Chapter 2; or

 

·       providing specified classes of supports or services to people with disability other than under the NDIS.

 

101.    New subsection 73E(3) provides that if a banning order is in force in relation to an applicant, the Commissioner cannot register the applicant in a way that would be inconsistent with the banning order.  A banning order may prohibit or restrict specified activities of an NDIS provider or key personnel of an NDIS provider, for example, from providing a support, or a specified class of supports.  The Commissioner may be able to register an applicant for a different support or class of supports so long as it is not a support covered by a banning order. 

 

102.    New subsection 73E(4) provides that the Commissioner must provide written notice of a decision in relation to registration, including reasons for that decision. A decision to refuse to register a person as a registered NDIS provider is a reviewable decision for the purposes of section 99 of the Act.  Where a decision is made to register the person, a certificate of registration containing the information set out in new subsection 73E(5) must be provided to the person. 

 

103.    New subsection 73E(5) sets out the following matters which must be specified in a certificate of registration:

 

·       which of the following the person is a registered NDIS provider in relation to:

 

  • managing the funding for supports under plans;

 

  • the provision of supports under plans;

 

  • the provision of supports or services under the arrangements set out in Chapter 3;

 

  • the provision of services of supports to people with disability other than under the NDIS; 

 

·       the class of supports or services the person is registered to provide;

 

·       if the person is registered in respect of a class of persons, the class of persons in respect of which the provider is registered;

 

·       any conditions on the registration imposed by the Commissioner under new section 73G;

 

·       the period for which the registration is in force; and

 

·       any other matter determined, in writing, by the Commissioner for the purpose of this paragraph.

 

104.    The note to new subsection 73E(5) makes it clear that the registration of a person may be varied, suspended or revoked by the Commissioner and the period for which the registration is in force may be extended or varied.

 

105.    New subsection 73E(6) clarifies that a determination of the Commissioner made under new subsection 73E(5) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 because it does not determine the law but rather, sets out administrative decisions.

 

New section 73F - Registration is subject to conditions

 

106.    New section 73F sets out the conditions that a registered NDIS provider is subject to upon registration and includes the conditions as set out in new subsection 73F(2) below, any conditions imposed by the Commissioner under new section 73G and any conditions determined by the NDIS rules under new section 73H.

 

107.    New subsection 73F(2) sets out the following conditions that a registered NDIS provider is subject to:

 

·       a condition that the person comply with all applicable requirements imposed by a law of the Commonwealth or a law of a State or Territory in which the person or entity operates as a registered NDIS provider;

 

·       a condition that the person comply with all applicable requirements of the NDIS Code of Conduct;

 

·       a condition that the person comply with all applicable standards and other requirements of the NDIS Practice Standards;

 

·       a condition that the person implement and maintain the applicable complaints management system and resolution in accordance with new section 73W;

 

·       a condition that the person comply with all applicable requirements relating to complaints prescribed by the NDIS rules for the purposes of new section 73X;

 

·       a condition that the person implement and maintain the applicable incident management system in accordance with new section 73Y;

 

·       a condition that the person comply with all applicable requirements relating to reportable incidents prescribed by the NDIS rules for the purposes of new section 73Z;

 

·       a condition that the person comply with all applicable requirements relating to record keeping prescribed by the NDIS rules for the purposes of new section 73Q; and

 

·       a condition that the person give to the Commissioner, on request, information specified in the request within the period specified in the request (which must not be less than 14 days).

 

New section 73G - Conditions specified in certificate of registration

 

108.    New subsection 73G(1) provides that the Commissioner may impose conditions on the registration of a person as a registered NDIS provider. 

 

109.    New subsection 73G(2) clarifies that a condition may be imposed either at the time of registration, or at a later time.  The note at this subsection clarifies that any condition imposed under new section 73G may also be varied or revoked (see new section 73L). 

 

110.    New subsection 73G(3) sets out, by way of example, some of the conditions that may be imposed on registered NDIS providers.  These include conditions relating to:

 

·       the type of quality audits the provider must undergo;

 

·       the timing of quality audits;

 

·       specific requirements relating to the supports or services for which the provider is registered, including supports or services which can or cannot be provided.

 

111.    A decision to impose conditions to which a person’s registration as a registered NDIS provider is a reviewable decision for the purposes of section 99 of the Act

 

New section 73H - Conditions determined by NDIS rules

 

112.    New section 73H provides that the NDIS rules may determine additional conditions that apply to registered NDIS providers, or to a specified class of registration.

 

New section 73J - Registered NDIS providers must comply with conditions of registration

 

113.    New section 73J makes it an offence for a person who is a registered NDIS provider not to comply with a condition to which the registration of that person is subject. 

 

114.    The penalty for this section is 250 penalty units.  A penalty unit is prescribed for the purposes of the Crimes Act 1914 .  That Act also provides that, if a body corporate is convicted of an offence, a fine of up to five times the penalty stated can be imposed.

 

New section 73K - Extension of period for which registration is in force

 

115.    New section 73K provides for the registration of a person as an NDIS provider to continue in force until a decision is made on a new application to be a registered provider.  This section applies where the registration to which the application relates will cease to be in force on a particular day and an application is made within 6 months before the day the registration ceases to be in force. 

 

116.    This section would only apply where a person is seeking to renew their registration for the same supports or class of supports for which they are registered.  It would not apply in relation to any new class of supports for which a person is seeking to be registered. 

 

117.    This section does not limit the Commissioner’s powers under new section 73G to determine the types of quality audits a provider must undergo and the timing of such audits.

 

New section 73L - Variation of registration

 

118.    New section 73L provides that the Commissioner may vary the registration of a registered NDIS provider, either on the Commissioner’s own initiative or on application for variation by a provider under new section 73M.  The Commissioner must provide a written notice of the variation to the provider.  Where the variation is on the Commissioner’s own initiative, the Commissioner may vary the registration at any time.

 

119.    New subsection 73L(2) provides that the Commissioner may vary the registration of a registered NDIS provider if the Commissioner considers that it is appropriate in all the circumstances to do so.

 

120.    New subsection 73L(3) sets out some possible variations to a registered NDIS provider’s registration including to:

 

·       impose, vary or revoke conditions to which the registration is subject under new section 73G;

 

·       reduce or extend the period for which the registration is in force;

 

·       extend, modify or reduce the supports or services the provider is registered to provide.

 

121.    New subsection 73L(4) provides that where the Commissioner has decided to vary the registration of a registered NDIS provider, the Commissioner must provide a new certificate of registration as varied to the provider.

 

122.    New subsection 73L(5) provides that where a registered NDIS provider has applied to have their registration varied under new section 73M, and the Commissioner refuses to vary the registration as requested, the Commissioner must provide written notice of the refusal, including reasons for the refusal.

 

123.    New subsection 73L(6) provides that a variation of a registered NDIS provider’s registration takes effect on the day specified in the notice of variation given to the provider.

 

New section 73M - Application for variation of registration

 

124.    New subsection 73M(1) provides for a registered NDIS provider to apply for a variation to the provider’s registration.  For example, an application may be made in relation to seeking to be registered to provide additional supports or to vary a condition of registration.

 

125.    New subsection 73M(2) sets out the requirements for an application for variation, which include the need to be in writing, in a form, if any, approved by the Commissioner and include any information and documentation required by the Commissioner.  The Commissioner is not required to make a decision on the application if this subsection is not complied with (see new section 197B).

 

126.    New subsection 73M(3) provides that the Commissioner may, by written notice, request additional information and documents as reasonably required by the Commissioner in relation to the registered NDIS provider’s application for variation of their registration.  The Commissioner is not required to make a decision on the application if this subsection is not complied with (see new section 197B).

 

127.    New subsection 73M(4) provides that a notice given to an applicant under new subsection 73M(3) may specify a period of time, not less than 14 days, in which any additional information and documents must be given to the Commissioner.

 

New section 73N - Suspension of registration

 

128.    New subsection 73N outlines the circumstances in which the Commissioner may, in writing, suspend the registration of an NDIS provider’s registration for a specified period of time.  These circumstances are as follows:

 

·       the Commissioner reasonably believes that the person has contravened, is contravening, or is proposing to contravene, the Act; or

 

·       the Commissioner reasonably believes that the application for registration by the person contained information that was false or misleading in a material particular; or

 

·       the person is an insolvent under administration; or

 

·       the Commissioner is satisfied that the person is no longer suitable to provide supports or services to people with disability, having regard to any matters prescribed by the NDIS rules; or

 

·       the Commissioner is no longer satisfied that the key personnel of the person (if any) are suitable to be involved in the provision of  supports or services to people with disability, having regard to any matters prescribed by the NDIS rules; or

 

·       a circumstance exists that is a circumstance prescribed by NDIS rules for the purposes of this paragraph.

 

129.    The NDIS rules may provide for circumstances in which a provider may be suspended in relation to a class of supports but not others or in respect of a particular location where for example, the Commissioner considers that a contravention is limited to a class of supports or a particular location from which supports are provided.

 

130.    New subsection 73N(2) clarifies that the specified period in subsection (1) must not be longer than 30 days.

 

131.    New subsection 73N(3) makes it clear that the Commissioner can suspend a registered provider more than once.  For example, where the matter giving rise to a suspension has not resolved within the period of time specified in the notice.

 

132.    New subsection 73N(4) sets out the matters that the Commissioner must have regard to in deciding whether to suspend the registration of a registered NDIS provider.  These matters are as follows:

 

·       the nature, significance and persistence of any contravention, or proposed contravention, of the Act;

 

·       action that can be taken to address any contravention, or proposed contravention, of the Act;

 

·       the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the NDIS;

 

·       the health, safety or wellbeing of people with disability receiving supports or services from the person;

 

·       any other matter the Commissioner considers relevant.

 

133.    New subsection 73N(5) requires the Commissioner to give written notice of a suspension including reasons for the suspension to a provider. 

 

134.    A decision to suspend the registration of a registered NDIS provider is a reviewable decision for the purposes of section 99 of the Act.

 

135.    New subsection 73N(6) provides that the Commissioner may, in writing, suspend a registered NDIS provider for a specified period at the request of a registered NDIS provider.

 

136.    New subsection 73N(7) provides that where a registered NDIS provider is suspended, the provider’s registration ceases to have effect until the suspension ceases to be in force.

 

New section 73P - Revocation of registration

 

137.    New subsection 73P(1) sets out the circumstances in which the Commissioner may, in writing, revoke the registration of a registered NDIS provider.  These circumstances are as follows:

 

·       the Commissioner reasonably believes that the person has contravened, is contravening, or is proposing to contravene, the Act; or

 

·       the application for registration by the person contained information that was false or misleading in a material particular; or

 

·       the person is an insolvent under administration; or

 

·       the Commissioner is satisfied that the person is no longer suitable to provide supports or services  to people with disability, having regard to any matters prescribed by the NDIS rules; or

 

·       the Commissioner is no longer satisfied that the key personnel of the person (if any) are suitable to be involved in  the provision of supports or services for which the person is registered to provide, having regard to any matters prescribed by the NDIS rules; or

 

·       a circumstance exists that is a circumstance prescribed by the NDIS rules.

 

138.    New subsection 73P(2) sets out the matters that the Commission must have regard to in deciding whether to revoke a registered NDIS provider’s registration.  These circumstances are as follows:

 

·       the nature, significance and persistence of any contravention, or proposed contravention, of the Act;

 

·       action that can be taken to address any contravention, or proposed contravention, of the Act;

 

·       the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the NDIS;

 

·       the health, safety or wellbeing of people with disability receiving supports or services from the person;

·       any other matter the Commissioner considers relevant.

 

139.    New subsection 73P(3) provides that the Commissioner may, in writing, revoke a registered NDIS provider’s registration if the provider requests that the Commissioner revoke its registration as a registered NDIS provider.

 

140.    New subsection 73P(4) sets out a process that must be followed by the Commissioner when he or she is considering revoking a registered NDIS provider’s registration under subsection (1).  The Commissioner must give the provider a written notice which notifies the provider that the Commissioner is considering revoking the provider’s registration as a registered NDIS provider and includes the Commissioner’s reasons for considering the revocation.  In addition, the notice must invite the provider to make written submissions to the Commissioner within 28 days of receiving the notice, setting out, for example, why the Commissioner should not revoke the provider’s registration.  The notice must also inform the provider that, where no submissions are received within 28 days, the revocation of the provider’s registration may take effect as early as 7 days after the end of the 28 day period.

 

141.    New subsection 73P(5) provides that, when the Commissioner is deciding whether to revoke a registered NDIS provider’s registration after notifying the provider that he or she is considering doing so, the Commissioner must have regard to any submissions that were provided to the Commissioner within the 28 day period.

 

142.    New subsection 73P(6) provides that the Commissioner must notify the provider in writing of his or her decision to revoke, or not to revoke, the provider’s registration.

 

143.    New subsection 73P(7) provides that the notice under new subsection 73P(6) must be given to a registered NDIS provider within 28 days after the end of the period for making submissions.  Where the Commissioner does not give the notice within 28 days, the Commissioner is taken to have decided not to revoke the provider’s registration.

 

144.    A decision to revoke, or not to revoke, the registration of a person as a registered NDIS provider is a reviewable decision for the purposes of section 99 of the Act.

 

New section 73Q - Record keeping by registered NDIS provider s

 

145.    New section 73Q requires registered NDIS providers to keep records of the kind, for the period and in the form prescribed by the NDIS rules.  This section is not intended to replace any other record keeping requirements that may apply.  The NDIS market is diverse and new providers may not be subject to any existing record keeping obligations.

 

146.    Compliance with this section is a condition of registration, breach of which may result in a civil penalty.  The maximum is 250 penalty units.  A penalty unit is prescribed for the purposes of the Crimes Act 1914 .  That Act also provides that, if a body corporate is convicted of an offence, a fine of up to five times the penalty stated can be imposed.

 

147.    Record keeping is important obligation in the context of the use of NDIS funding to provide supports and services to vulnerable people.  The records that need to be kept include those that are relevant to the management of incidents and complaints.  In the absence of relevant records, the Commissioner will not be able to properly assess whether NDIS providers have complied with their obligations under the Act, including that relevant evidence for consideration in the context of investigations.

 

New section 73R - Record keeping by former registered NDIS providers

 

148.    New section 73R requires a person who has ceased to be a registered NDIS provider to keep records that the person was required to retain under new section 73Q for a period of 3 years commencing on the day the person ceased to be a registered NDIS provider. 

 

149.    The penalty for contravening this section is a maximum of 60 penalty units.  A penalty unit is prescribed for the purposes of the Crimes Act 1914 .  That Act also provides that, if a body corporate is convicted of an offence, a fine of up to five times the penalty stated can be imposed.

 

New section 73S - Grants of financial assistance in relation to registration

 

150.    New subsection 73S(1) provides that the Commissioner may, on behalf of the Commonwealth, grant financial assistance to a person or entity in relation to, and for the purpose of, applications for registration, or variations to registration, as a registered NDIS provider under the Act.  A grant of financial assistance is intended to support providers become established where the cost of an audit is a barrier to being a registered NDIS provider or in regional, remote or very remote locations

 

151.    New subsection 73S(2) provides that the terms and conditions of the grant of financial assistance are to be set out in a written agreement between the Commonwealth and the person.

 

152.    New subsection 73S(3) provides that the Commissioner may enter into a written agreement required under new subsection 73S(2) on behalf of the Commonwealth.

Division 3 - Quality assurance

 

153.    The NDIS Practice Standards establish the quality expectations of the Commissioner for the provision of supports and services in the NDIS.  The application of the standards is based on the inherent risk of the supports or services and proportionate to the size and scale of a provider.  These standards will benchmark and establish ongoing compliance obligations relating to the quality of support delivery, the rights of people with disability, the management of organisational and operational risk, continuous improvement, legal obligations and workforce management.  They will reflect the existing National Standards for Disability and Mental Health Services, and bring them within the changing regulatory environment of the NDIS market.  The standards will be assessed as a component of the registration process via an audit process.  These audits will be conducted by third party, market-based quality auditors - similar to current arrangements in several jurisdictions.

 

New section 73T - NDIS Practice Standards

 

154.    New section 73T provides for NDIS rules to be made for or in relation to standards concerning the quality of supports or services to be provided by registered NDIS providers.  Compliance with the NDIS Practice Standards by registered NDIS providers is a condition of registration (see new subsection 73E(2)(a)).

 

155.    New subsection 73T(2) provides that the rules made under new subsection 73T(1) are to be known as the NDIS Practice Standards.

 

156.    New subsection 73T(3) outlines the matters the NDIS Practice Standards may provide for, including but not limited to the following:

 

·       standards to be complied with to become a registered NDIS provider;

 

·       standards to be complied with to remain a registered NDIS provider;

 

·       matters relating to assessing compliance with the standards;

 

·       matters relating to the requirement to screen workers employed or otherwise engaged by registered NDIS providers.

 

157.    In relation to the screening of workers, the NDIS Practice Standards will reference the national NDIS worker screening policy to be developed under new section 181E(f).

 

158.    Providers delivering higher risk supports will be required to obtain third party quality certification against the NDIS Practice Standards.  Providers delivering lower-risk supports will undergo a ‘lighter touch’ periodic verification process.  This approach is intended to minimise the regulatory impost on providers whose supports and services are considered to be low risk because of the nature of the support or because they are subject to existing regulatory frameworks, such as through professional bodies or associations.  Providers of these supports may still choose to undergo quality assurance certification if they believe it would be beneficial for their organisation.

 

New section 73U - Approved quality auditors

 

159.    New section 73U provides for the Commissioner to be able to approve a person or body to be an approved quality auditor for the purposes of the Act.  The role of an approved quality auditor will include conducting audits of providers against the NDIS Practice Standards.  In considering whether to approve a quality auditor, the Commissioner will rely on information provided by an independent accreditation body.

 

160.    New subsection 73U(2) provides that an approval given under this subsection (1) is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 because it does not determine the law but provides for the making of administrative decisions .

 

161.    New subsection 73U(3) provides that the Commissioner may publish a list of approved quality auditors on the Commission’s website.  This public list will assist  NDIS providers seeking registration to engage an approved quality auditor for the purpose of applying for registration and being assessed against the applicable standards and other requirements prescribed by the NDIS Practice Standards.

Division 4 - NDIS Code of Conduct

 

162.    An NDIS Code of Conduct contributes to safe and ethical service delivery by explicitly stating the standards and obligations that people with disability and all Australians can expect of providers and workers delivering NDIS supports and service.  It will have both a preventative effect, by clearly setting out expectations of providers and workers and a corrective effect through sanctions by providing a mechanism for enforcing compliance of providers and workers who engage in unacceptable conduct in the NDIS market.

 

New section 73V - NDIS Code of Conduct

 

163.    New section 73V provides for NDIS rules to be made to establish an NDIS Code of Conduct that applies to all NDIS providers, regardless of whether they are registered, and to persons employed or otherwise engaged by NDIS providers.

 

164.    The penalty for contravening the Code of Conduct is a maximum of 250 penalty units.  A penalty unit is prescribed for the purposes of the Crimes Act 1914 .  That Act also provides that, if a body corporate is convicted of an offence, a fine of up to five times the penalty stated can be imposed.

 

165.    In addition to civil penalties, the full range of enforcement action and sanctions described below in Division 8 is available to the Commissioner in determining the appropriate regulatory response to non-compliance with the Code of Conduct.

Division 5 - Complaints management and resolution

 

166.    Complaints create opportunities to address harm, conflict and misunderstandings and improve the quality of supports.  Expectations and obligations of all parties to a complaint can be clarified, and damaged relationships can often be repaired before a complaint escalates any further. Complaints and disputes need to be resolved fairly, effectively and promptly.  People with disability need to feel safe to make a complaint or provide negative feedback without fear of adverse consequences or loss of service.

 

167.    The Commission will address complaints in a way that upholds the human rights of those involved and improves the quality and safety of NDIS funded supports. For providers, a critical element of quality supports and service is the establishment and maintenance of a workplace culture that values and is inclusive of people with disability.  Such a culture can be promoted through an open and effective complaints management system.

 

New section 73W - Complaints management and resolution system - registered NDIS providers

 

168.    New section 73W imposes an obligation on registered NDIS providers, as a condition of registration, to implement and maintain a complaints management and resolution system that:

 

·       is appropriate for the size of the provider and for the classes of supports or services provided by the provider; and

 

·       complies with any requirements prescribed by the NDIS rules.

 

New section 73X - Arrangements relating to the management and resolution of complaints

 

169.    New subsection 73X(1) provides that the NDIS rules may prescribe arrangements relating to the management and resolution of complaints arising out of, or in connection with, the provision of supports or services by NDIS providers.

 

170.    Any person can make a complaint about NDIS funded supports or services including people with disability, participants, family members, individual workers or providers, advocates, a professional or member of the community.  The Commissioner will receive and help to resolve complaints about providers of NDIS funded supports, regardless of whether they are registered.

 

171.    Complaints about the Agency or its staff will generally be handled through existing complaints management arrangements within the Agency or by the Commonwealth Ombudsman.  The Commissioner will operate on the basis of a no wrong door approach and if necessary will support the appropriate referral of complaints to other bodies as appropriate.

 

172.    New subsection 73X(2) outlines out the matters the NDIS rules may deal with including:

·       how complaints may be made, managed and resolved, including methods to support the early resolution of complaints;

 

·       the roles, rights and responsibilities of people with disability, complainants, NDIS providers and other persons in relation to the management and resolution of complaints;

 

·       considerations relevant to making decisions under the NDIS rules in relation to complaints;

 

·       procedures for the review of decisions and processes;

 

·       actions that must or may be taken (including making requirements of NDIS providers) to address complaints;

 

·       authorising the provision of information relating to complaints to the Minister, the Agency or other specified bodies;

 

·       the matters in relation to which the Commissioner may authorise an inquiry, on his or her own initiative.

 

173.    The Commissioner may commence an inquiry in relation to any information that it receives.  An inquiry enables the Commissioner to seek further information about a matter that may be broader than the consideration of NDIS provider compliance with the Act.  The Commissioner may invite interested people to provide information or submissions or use the information gathering powers in new section 55A in relation to an inquiry.

 

174.    The inquiry process is intended to determine or define potential matters including any systemic issues which may be connected with supports or services provided under the NDIS.  Where the Commissioner determines or defines an issue but has no direct ability to further consider or resolve the matter, the Commissioner may provide a report and recommendations to assist in the resolution of issues and further the Commissioner’s functions in relation to promoting and protecting the rights, health, safety and wellbeing of people with disability.  An inquiry may also lead to the Commissioner engaging monitoring or investigation powers in relation to NDIS provider compliance with the Act.

Division 6 - Incident management - registered NDIS providers

 

175.    Incident management requires a response that seeks to address the wellbeing and immediate safety of the people involved, and the opportunity should be taken to review and improve operational practices as appropriate to reduce the risk of further harm.  Both the response and review should focus on the impact of the incident on the person with disability and system level improvements that should be addressed as part of any investigation and achieved as a result of any remedial action.

 

176.    Key features of incident management systems include clear obligations and legislative requirement for NDIS providers to record and respond to incidents and for there to be notification and oversight of incidents by an independent body with regulatory powers.

 

New section 73Y - Incident management system

 

177.    New section 73Y imposes obligations on registered NDIS providers to implement and maintain an incident management system that is appropriate having regard to the size of the provider and the classes or types of supports or services provided by the provider.  The system must comply with any other requirements prescribed in the NDIS rules.

 

New section73Z - Reportable incidents

 

178.    New subsection 73Z(1) provides for NDIS rules to prescribe arrangements relating to the notification and management of reportable incidents that occur, or are alleged to have occurred in connection with, the provision of supports or services by NDIS providers.  The phrase ‘in connection with’ is intended to be broad and include incidents or allegations of incidents that:

·       may have occurred during the course of supports being provided;

·       arise out of the provision, alteration or withdrawal of supports;

·       may not have occurred during the provision of supports but are connected because it arose out of the provision of supports.

 

179.    New subsection 73Z(2) outlines some of the matters the NDIS rules may deal with including:

 

·       the manner and period within which reportable incidents must be reported to the Commission;

 

·       action that must be taken in relation to reportable incidents;

 

·       authorising the provision of information relating to reportable incidents to the Minister, the Agency or other specified bodies;

 

·       the matters in which the Commissioner may authorise an inquiry in relation to a reportable incident, on his or her own initiative.

 

180.    The Commissioner may commence an inquiry in relation to information that it receives.  An inquiry enables the Commissioner to seek further information about a matter that may be broader than the consideration of NDIS provider compliance with the Act.  The Commissioner may invite interested people to provide information or submissions or use the information gathering powers in new section 55A in relation to an inquiry.

 

181.    The inquiry process is intended to determine or define potential matters including any systemic issues which may be connected with supports or services provided under the NDIS.  Where the Commissioner determines or defines an issue but has no direct ability to further consider or resolve the matter, the Commissioner may provide a report and recommendations to assist in the resolution of issues and further the Commissioner’s functions in relation to promoting and protecting the rights, health, safety and wellbeing of people with disability.  An inquiry may also lead to the Commissioner engaging monitoring or investigation powers in relation to NDIS provider compliance with the Act.

 

182.    New subsection 73Z(3) provides that action that must be taken in relation to or in response to a reportable incident may include requiring, at the cost of a registered NDIS provider, an independent investigation to be conducted into a reportable incident and providing a report of that investigation to the Commissioner.

 

183.    The Commissioner may require a provider to conduct an independent investigation in circumstances including where there is a demonstrable lack of capacity on the part of a registered provider to conduct an investigation, or if it considers that an internal investigation is not appropriate or is not being progressed.  Such an independent investigation would need to be by an appropriately qualified person and include findings and recommendations.

 

184.    New subsection 73Z(4) provides a description of some incidents which are ’reportable incidents’ including where they are alleged to have occurred in connection with the provision of supports.  These are:

 

·       the death of a person with disability;

 

·       serious injury of a person with disability;

 

·       abuse or neglect of a person with disability;

 

·       unlawful sexual or physical contact with, or assault of, a person with disability;

 

·       sexual misconduct committed against, or in the presence of, a person with, including grooming of the participant for sexual activity;

 

·       the use of a restrictive practice in relation to a person with disability, other than where the use is in accordance with an authorisation (however described) of a State or Territory in relation to the person. 

 

185.    Authorisation in this context encompasses the range of processes in relevant State or Territory legislation or policy and obtaining informed consent of a participant and/or their guardian; approval from a guardianship board or administrative tribunal; and seeking approval from an authorised State or Territory officer.

 

186.    New subsection 73Z(5) provides that, despite the definition provided in subsection (4) the NDIS rules may provide that certain specified acts, omissions or events are, or are not, reportable incidents.  This rule making power will allow changes to be made to categories of incidents that are reportable in response to emerging areas of risk.

Division 7 - Protection of disclosers

 

187.    New Division 7 of Part 3A establishes robust protections to ensure disclosers are supported and protected in making disclosures about NDIS providers.  These protections are intended to promote the integrity and accountability of NDIS providers in providing quality and safe supports or services to people with disability. 

 

188.    A discloser for the purpose of these protections is broadly defined to cover employees, contractors, committee members, partners and in any case a person with disability receiving a support or service from the NDIS provider or a nominee, family member, carer or significant other of that person.  A person will qualify for protection in relation to a disclosure whether the disclosure is made to the Commission, the Agency, the NDIS provider key personnel or partner provided it is a qualifying disclosure as set out in new section 73ZA. 

 

189.    Detriment in this Division comprises any disadvantage including, but not limited to, dismissal, injury, alteration of an employee’s position to their detriment and discrimination between an employee and other employees of the same NDIS provider.  Detriment also includes, but is not limited to, any alteration or withdrawal of supports or services to a person’s detriment, altering the ability for a nominee, carer, family member or significant other from contacting the participant or removing that person from receiving information that they would have otherwise been entitled to receive.

 

New section 73ZA - Disclosures qualifying for protection

 

190.    New section 73ZA, subsection (1) identifies who the protection applies to in relation to disclosure of information by a person (the discloser) in relation to an NDIS provider.  Any of the following people are a discloser in relation to an NDIS provider for the purposes of attracting the protections:

 

·       if the NDIS provider is a body corporate—an officer or employee of the body corporate, or a person who has a contract for the supply of goods or services to, or on behalf of, the body corporate;

 

·       if the NDIS provider is an unincorporated association—a member of the committee of management or an employee of the association, or a person who has a contract for the supply of goods or services to, or on behalf of, the association;

 

·       if the NDIS provider is a partnership—a partner in or an employee of the partnership, or a person who has a contract for the supply of goods or services to, or on behalf of, the partnership;

 

·       in any case—a person with disability who is receiving a support or service from the NDIS provider, or a nominee, family member, carer or significant other of that person.

 

191.    New subsection 73ZA (2) sets out the circumstances that must be met for the discloser to qualify for protection under this Division.  The disclosure must be made to the Commissioner, the Agency, or a member of the key personnel of an NDIS provider.  The discloser must:

·       prior to making the disclosure, inform the person to whom the disclosure is made of the discloser’s name;

·       have reasonable grounds to suspect that the information indicates that an NDIS provider has, or may have, contravened a provision of the Act, for example, obligations under the NDIS Code of Conduct; and

·       make the disclosure in good faith.

 

192.    New subsection 73ZA (3) provides that the word officer has the same meaning as it has in the Corporations Act 2001 .

 

New section 73ZB - Disclosure that qualifies for protection not actionable etc.

 

193.    New subsection 73ZB(1) provides that where a person makes a disclosure that qualifies for protection, that person is not subject to any civil or criminal liability for making the disclosure and no contractual or other remedy may be enforced or exercised against the person on the basis of the disclosure. 

The note under this section clarifies that notwithstanding this subsection, a person may be subject to any civil or criminal liability for conduct that is revealed by the disclosure. 

 

194.    New subsection 73ZB(2) provides, without limiting subsection (1), that the person has qualified privilege in respect of the of the disclosure and a contract to which the person is party may not be terminated on the basis that the disclosure constitutes a breach of the contract. 

 

195.    New subsections 73ZB(3) and 73ZB(4) provide an explanation of what qualified privilege means in the context of defamation proceedings in respect of a disclosure. 

 

196.    New subsection 73ZB(5) clarifies that this section does not limit or affect any right, privilege or immunity that a person has, apart from this section, as a defendant in proceedings, or in an action for defamation.

 

New section 73ZC - Victimisation prohibited

 

197.    New section 73ZC creates a civil penalty for victimisation.  A person contravenes this subsection if, they actually cause detriment to another person within the meaning of subsection (1) or they threaten to cause detriment to another person within the meaning of subsection (2). It is a civil penalty to actual cause detriment or threaten to cause detriment to another person.  The penalty is a maximum of 500 penalty units.  A penalty unit is prescribed for the purposes of the Crimes Act 1914

 

198.    New subsection 73ZC (3) clarifies for the purpose of subsection (2) that a threat may be express or implied, or conditional or unconditional. 

 

199.    New subsection 73ZC (4) provides that where civil penalty proceedings are brought under subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out. 

 

New section 73ZD - Right to compensation

 

200.    New section 73ZD makes a person liable to compensate a person who suffers damage as a result of a contravention of subsections 73ZC(1) or (2). 

Division 8 - Compliance and enforcement

 

201.    New Division 8 establishes a compliance and enforcement framework for monitoring compliance with the Act and taking action to enforce compliance.  The Bill triggers the Commonwealth’s standard suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions contained in the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act).  The Regulatory Powers Act is intended to simplify and streamline Commonwealth regulatory powers, provide regulatory agencies with the opportunity to use more uniform powers, and increase legal certainty for business and individuals who are subject to those powers.

 

202.    NDIS providers are also subject to general law obligations and universal complaints and redress mechanisms which continue to be available for people with disability, including police, fair trading bodies, professional and industry bodies, consumer protection laws and other regulatory systems.  Disability services delivered through other systems, such as health, education and justice, will be covered by the enforcement arrangements for those systems.

 

203.    The Commission has a range of enforcement and compliance powers to use in response to information it receives, including through complaints mechanisms and incident notifications.  The regulatory responses available to support the Commissioner’s function are illustrated by the following regulatory pyramid.

 

 

204.    The Commission will use a proportionate, flexible and consistent approach to enforcement and compliance, with the highest level of response representing the most serious and intrusive intervention such as civil penalties and ban orders through to lower level interventions including education and inspection powers to achieve compliance. 

 

New section 73ZE - Monitoring powers

 

205.    This section triggers part 2 of the Regulatory Powers Act, which creates a framework that gives inspectors appointed by the Commissioner monitoring powers.  Those monitoring powers are to be used to monitor compliance with new Part 3A of the Act regarding NDIS providers.  Monitoring powers include the powers of entry and inspection.

 

206.    The monitoring powers can also be used to determine whether information, given to the Commission in compliance with, or in purported compliance with the new Part 3A, is correct.

 

207.    Certain powers, duties and functions under the Regulatory Powers Act are to be performed by specific persons and bodies.  New subsection 73ZE(3) sets out who can exercise certain powers under Part 2 of the Regulatory Powers Act.  These are:

 

·       an inspector appointed by the Commissioner under the Act who is an authorised applicant and authorised person;

 

·       a magistrate is an issuing officer;

 

·       the Commissioner is the relevant chief executive;

 

·       relevant courts are the Federal Court, the Federal Circuit Court, and a court of a State or Territory that has jurisdiction in relation to matters under the Act.

 

208.    New subsection 73ZE(4) provides that inspectors may be assisted by other persons when exercising their powers or performing their functions or duties set out in part 2 of the Regulatory Powers Act.

 

New section 73ZF - Investigation powers

 

209.    This section triggers Part 3 of the Regulatory Powers Act, which creates a framework that gives investigators appointed by the Commissioner investigative powers.  These investigative powers can be used to gather material to determine whether certain provisions in Part 3A of the Act have been contravened.  The investigative powers can be exercised only in relation to civil penalty provisions, or any offence against the Crimes Act 1914 or the Criminal Code that relates to this Part.  Investigative powers include the powers of entry, search and seizure.

 

210.    Certain powers, duties and functions under the Regulatory Powers Act are to be performed by specific persons and bodies.  Subsection (2) sets out who can exercise certain powers under Part 3 of the Regulatory Powers Act. These are:

 

·       an investigator appointed by the Commissioner under the Act who is an authorised applicant and authorised person;

 

·       a magistrate is an issuing officer;

 

·       the Commissioner is the relevant chief executive;

 

·       relevant courts are the Federal Court, the Federal Circuit Court, and a court of a State or Territory that has jurisdiction in relation to matters arising under the Act.

 

211.    New subsection 73ZF(3) provides that investigators may be assisted by other persons when exercising their powers or performing functions or duties set out in Part 3 of the Regulatory Powers Act.

 

New section 73ZG - Use of equipment to examine or process things

 

212.    This section applies where an investigator is exercising their investigatory powers pursuant to Part 3 of the Regulatory Powers Act.  In particular, this section applies where an investigator has entered a premises under an investigation warrant obtained for the purposes of the Act.

 

213.    New subsection 73ZG(2) allows an investigator, or a person assisting, to bring any equipment into premises, where that equipment is reasonably necessary to allow the investigator to examine or process a thing to determine whether it should be seized.

 

214.    New subsection 73ZG(3) allows an investigator, or a person assisting, to move things to another place to examine or process the thing to determine whether it should be seized.  Things may only be moved to another place pursuant to this subsection if the occupier of the premises consents in writing, or if it would be sufficiently more practicable to move the thing and the investigator suspects on reasonable grounds that the thing contains or constitutes evidential material.

 

215.    When considering whether to move a thing for examination or processing, an investigator should have regard to the timeliness and cost of examining the thing at another place, and the availability of expert assistance at another place.  It is generally practical and appropriate to move equipment where it will be faster or less costly to search for evidentiary material at an alternative location.

 

216.    For example, where there may be a significant amount of data contained on specialist equipment, searching through all of the material or data while at the premises may not be practicable or efficient.  Further, it may require a person with specialist expertise.  This is particularly the case in relation to computers and other electronic equipment which may have large amounts of data that are protected by passwords or other forms of encryption.

 

217.    New subsection 73ZG(4) provides that if a thing is moved to another place for the purpose of examination or processing pursuant to subsection (3), the investigator must (if it is practicable to do so):

 

·       inform the occupier of the premises of the time and place at which the examination or processing of a thing will be carried out; and

 

·       allow the occupier of the premises or his or her representative to be present during the examination or processing.

 

218.    New subsection 73ZG(5) provides that an investigator does not need to comply with subsection (4) if the investigator believes on reasonable grounds that complying with subsection (4) would endanger the safety or a person; or prejudice an investigation or prosecution.

 

219.    New subsections 73ZG(6)-(9) set out the time limits on moving things to another place for examination or processing. Specifically:

 

·       A thing may not be moved to another place for longer than 14 days.

 

·       If an investigator believes on reasonable grounds that a thing cannot be examined or processed within that 14 day timeframe (or an extension of time that has previously been granted), an investigator may apply to a magistrate for an extension of time.

 

·       An extension of time cannot exceed 7 days, however an investigator may apply for as many extensions as are necessary.

 

·       The investigator must give notice of the application for an extension of time to the occupier of the premises.  The occupier is entitled to be heard in relation to the application for an extension of time before the extension is granted.

 

220.    New subsection 73ZG(10) allows an investigator, or a person assisting, to operate any equipment already at premises to examine or operate a thing found at a premises to determine whether the thing should be seized.  Before using such equipment, an investigator, or person assisting an investigator, must believe on reasonable grounds that the equipment is suitable for the examination or processing, and the examination or processing can be carried out without damage to the equipment or thing.

 

New section 73ZH- Use of electronic equipment at other place

 

221.    This section applies where an investigator is exercising investigatory powers pursuant to Part 3 of the Regulatory Powers Act.  In particular, this section applies where an investigator has entered premises under an investigation warrant obtained for the purposes of the Act and he or she has moved electronic equipment to another place pursuant to new subsection 73ZG(3).

 

222.    New subsection 73ZH(2) provides that if electronic equipment is moved from the premises to another place, an investigator or a person assisting may operate the equipment to access data.

 

223.    New subsection 73ZH(3) provides that if an investigator or a person assisting suspects on reasonable grounds that electronic equipment may hold data that constitutes evidential material, that person may copy any or all of the data accessed by operating the electronic equipment.  The data can be copied to a disk, tape or other associated device.

 

224.    New subsection 73ZH(4) provides that if data has been copied pursuant to subsection (3), and the Commissioner is satisfied that the data is not required (or is no longer required) for the purposes of the Act, or for other judicial or administrative proceedings, then the Commissioner must arrange for the removal of the data from any device in the control of the Commission, and the destruction of any other reproduction of the data in the control of the Commission (for example, printed copies of data).

225.    New subsection 73ZH(5) provides that if an investigator, or person assisting, finds that evidential material is accessible by accessing electronic equipment, he or she may:

·       seize the equipment and any disk, tape or other associated device, or

·       if the material can be put in documentary form - put the material in that form and seize the documents so produced. 

226.    New subsection 73ZH(6) provides that the seizure of electronic equipment pursuant to new subsection 73ZH(5)(a) should be a ‘last resort’, and that electronic equipment can only be seized if it is not practicable to copy the data as provided for in subsection (3), or to put the material in documentary form as provided for in subsection (5)(b).  Equipment can also be seized if possession of the equipment by the occupier of the premises could constitute an offence.

 

New section 73ZI - Person with knowledge of a computer or a computer system to assist access etc.

 

227.    This section applies where an investigator is exercising their investigatory powers pursuant to Part 3 of the Regulatory Powers Act.  In particular, this section applies where an investigator has entered a premises under an investigation warrant obtained for the purposes of the Act.

 

228.    The purpose of this section is to ensure the integrity of and access to evidentiary material stored on electronic equipment, particularly where access has been limited by complex security measures.  Developments in technology allow electronic equipment to store large amounts of data and to have complex security measures in place for information.  Electronic equipment can be programmed to delete or alter data when any attempt to override the security measure is employed.  This section provides for an order requiring a specified person to provide relevant information or to assist an investigator to access data without erasing or altering it.

 

229.    Subsection 73ZI(2) provides that an investigator may apply to a magistrate for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow an investigator or person assisting to:

 

·       access data held in, or accessible from, a computer or data storage device that is on the premises, has been moved pursuant to new subsection 73ZG(3), or has been seized;

 

·       copy data held in, or accessible from, a computer or data storage device to another data storage device;

 

·       convert into documentary form, or another form that is understandable and clear to an investigator or person assisting any data held on a computer or data storage device.

 

230.    New subsection 73ZI(3) sets out the criteria that a magistrate must consider in issuing an order.  The magistrate must be satisfied that there are reasonable grounds for suspecting that evidential material is held on, or is accessible from, the computer of data storage device.

 

231.    New subsection 73ZI(3) sets out the criteria that a magistrate must consider in issuing an order.  The magistrate must be satisfied that there are reasonable grounds for suspecting that evidential material is held on, or is accessible from, the computer or data storage device.

 

232.    The magistrate must also be satisfied that a specified person is one or more of the following:

 

·       reasonably suspected of having committed the offence or contravened the civil penalty provision stated in the relevant warrant;

 

·       the owner or lessee of the computer or device;

 

·       an employee of the owner or lessee of the computer or device;

 

·       a person engaged under a contract for services by the owner or lessee of the computer or device;

 

·       a person who uses or has used the computer or device; or

 

·       a person who is or was a system administrator for the system including the computer or device.

 

233.    A specified person must also have relevant knowledge of one or both of the following:

 

·       the computer or device or a computer network of which the computer or device forms or formed a part; or

 

·       measures applied to protect data held in, or accessible from, the computer or device.

 

234.    New subsection 73ZI(4) provides that if an order has been made in relation to a computer or data storage device that is subsequently seized, that order is no longer in effect on or after the seizure.  This means that an investigator cannot rely on an order for a specified person to provide information or to assist with accessing data from the seized item if the order was issued before the seizure.  A new application for another order under this section may be made after the seizure.

 

235.    New subsection 73ZI(5) provides that where the computer or data storage device is not on the premises, the order must specify the time and place that the specified person must provide the information or assistance, as well as any other conditions that the specified person must comply with in providing the information and assistance.

 

236.    New subsection 73ZI(6) creates an offence where a person fails to comply with an order under this section, with a penalty of imprisonment up to 2 years.

 

New section 73ZJ - Compensation for damage to electronic equipment

 

237.    This section requires the Commonwealth to pay the owner of electronic equipment, or the user of data or programs, reasonable compensation where electronic equipment has been operated pursuant to section 73ZG or 73ZH and:

 

·       damage is caused to the equipment, or

 

·       the data recorded on the equipment is damaged; or

 

·       programs associated with the use of equipment, or with the use of the data, are damaged or corrupted.

 

238.    This section only applies where the damage or corruption occurs because insufficient care was exercised in selecting the person who was to operate the equipment, or insufficient care was exercised by the person operating the equipment.

 

239.    If the Commonwealth and the owner or user cannot agree on ‘reasonable compensation’ then the owner or user may institute proceedings in the Federal Court, the Federal Circuit Court, or a court of a State or Territory that has jurisdiction in relation to the matter to determine the amount of compensation to be paid.

 

240.    In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents (if they were available at the time) provided any appropriate warning or guidance on the operation of the equipment.

 

New section 73ZK - Civil penalty provisions

 

241.    New section 73ZK provides that each civil penalty provision of the Bill is enforceable under Part 4 of the Regulatory Powers Act.  The section provides that the Commissioner is an ‘authorised applicant’ for the purposes of Part 4 of the Regulatory Powers Act and for applying to a relevant court to obtain an order for a person to pay a pecuniary penalty for the contravention of a civil penalty provision.  

 

242.    New section 73ZK also aligns provisions and definitions with corresponding provisions and definitions of the Regulatory Powers Act in relation to relevant courts for the purposes of new Part 3A of the Act.  

 

243.    New section 73ZK provides that despite the operation of subsection 205(2) of the Act, the Crown is liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of the Act.  This is to ensure nationally consistent quality and safeguards arrangements will apply to all NDIS providers, including where supports and services are delivered by State, Territory or Commonwealth Governments. 

 

New section 73ZL - Infringement notices

 

244.    New section 73ZL provides that a civil penalty in Part 3A is subject to an infringement notice under Part 5 of the Regulatory Powers Act.  Consistent with Commonwealth guidelines for infringement notice schemes and the Regulatory Powers Act, infringement notices may be used to deal with less serious and less factually complex contraventions, where initiating court proceedings would be disproportionately costly (see Chapter 6 of the Australian Government Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers). 

 

245.    For the purposes of Part 5 of the Regulatory Powers Act, the Commissioner is an infringement officer and the relevant chief executive for these provisions. 

 

Modifications of Part 5 of the Regulatory Powers Act

 

246.    New section 73ZL provides that despite the operation of subsection 205(2) of the Act, the Crown may be liable to be given an infringement notice under Part 5 of the Regulatory Powers Act, as that Part applies in relation to new Part 3A of the Act. 

 

New section 73ZM - Compliance notices

 

247.    New section 73ZM enables the Commissioner to issue compliance notices to an NDIS provider if the Commissioner is satisfied that the NDIS provider is not complying with the Act or is aware of information that suggests the NDIS provider may not be complying with the Act.  

 

248.    New subsection 73ZM(2) sets out the requirements that compliance notices must contain.  These include the name of provider; details of the non-compliance or possible non-compliance; action the provider must take or refrain from taking (including being required to provide evidence of this fact); and any period within which the provider must take, or refrain from taking the specified action. 

 

249.    Failure to comply with a compliance notice is a contravention which attracts a maximum civil penalty of 60 penalty units (subsection 73ZM(3)).  It may also result in a provider’s registration being suspended or revoked or in the case of an unregistered NDIS provider, may result in a banning order (although the issue of a compliance notice is not a prerequisite to those enforcement actions).  These matters must also be set out in the compliance notice (73ZM (2)(f) and (g)).

 

250.    The Commissioner may vary or revoke a compliance order given to a provider where the Commissioner considers that it is appropriate in all of the circumstances to do so (subsection 73ZM(4)).  In deciding whether to vary or revoke a compliance notice, subsection 73ZM(5) provides that the Commissioner must consider any submissions that are received from the provider before the end of the period specified in the compliance notice.  A decision to give a compliance notice to an NDIS provider is a reviewable decision for the purposes of section 99 of the Act.

 

New section 73ZN - Banning orders

 

NDIS providers

251.    New section 73ZN allows the Commissioner to make an order (a banning order) prohibiting or restricting specified activities by an NDIS provider.  

 

252.    In relation to a registered NDIS provider, a banning order must be preceded by a decision to revoke the registration of a provider (subsection 73ZN(1)(a)) under new section 73P.  Where a contravention of the Act is of such a nature as to warrant a banning order, the Commissioner may revoke the registration of a provider and apply a banning order to the provider in parallel. 

 

Persons employed or otherwise engaged by NDIS providers

253.    A banning order may also be made prohibiting or restricting a person who is employed or otherwise engaged by an NDIS provider from engaging in specified activities.  The definition of otherwise engaged makes it clear that this includes where a person is engaged on a voluntary basis.

 

254.     In considering whether the issue a banning order, new subsections 73ZN(1)(b)-(d) and (2)(a)-(c) require that the Commissioner reasonably believes one or more of the following has occurred:

 

·       a person has contravened, is contravening, or is likely to contravene, the Act; or

 

·       the person has been involved in, or is likely to become involved in, a contravention of the Act by another person; or

 

·       the person is not suitable to provide supports or services to people with disability; or

 

·       there is an immediate danger to the health, safety or wellbeing of a person if the person continues to be an NDIS provider; or

 

·       the person is convicted of an offence involving fraud or dishonesty; or

 

·       the person becomes an insolvent under administration.

 

255.    The note at subsection 73ZN(1) explains that where a person is subject to a banning order, that person cannot be registered as a registered NDIS provider in a way that is inconsistent with the banning order.  A banning order may apply generally to prevent a person from offering any NDIS supports or services or may be limited to a class of supports or services, or to particular people.  A person subject to a banning order with limited application may be able to continue to be registered or apply to be registered for another class of supports or services or continue to provide registered supports or services to other people.

 

256.    New subsection 73ZN(4) clarifies that a banning cannot prohibit or restrict activities that a registered NDIS provider is registered to provide under new section 73E.  This highlights the order of regulatory response to non-compliance with the Act, in that, the Commissioner must revoke the person’s registration before issuing a banning order.  However, as noted above, the Commissioner may issue a banning order at the same time as a revoking a person’s registration. 

 

257.    New subsection 73ZN(5) provides that a banning order takes effect from the day specified in the order.  Subsection 73ZN(6) provides that a banning order is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 because it does not determine the law but sets out administrative decisions .

 

258.    New subsection 73ZN(7) provides that a banning order may only be made, in accordance with natural justice principles, where the person has been given an opportunity to make submissions to the Commissioner on the matter.  Subsection (8) provides the limited circumstances in which subsection (7) does not apply. 

 

259.    New subsection 73ZN(9) provides that the Commissioner must give the banning order to the person against whom the order is made, including a statement of reasons for the order and where the order is made against a person who is employed or otherwise engaged by an NDIS provider - notify the NDIS provider of the order as soon as possible.

 

260.    A decision to make a banning order is a reviewable decision for the purposes of section 99 of the Act.

 

261.    Failure to comply with a banning order is a contravention which carries a maximum civil penalty of 1,000 penalty units (subsection 73ZN(10)). 

 

262.    Banning orders are the most serious regulatory response to prevent a person from providing any supports or services in the NDIS market.  It is intended to apply to a person employed or otherwise engaged by an NDIS provider in circumstances where there are no other regulatory options available to the Commissioner or other regulators, to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS.  The civil penalty in relation to this provision is therefore substantial to indicate the serious nature of non-compliance with a banning order. 

 

New section 73ZO - Variation or revocation of banning orders

 

263.    New section 73ZO allows the Commissioner to vary or revoke a banning order, in writing to the person to whom the order applies, where the Commissioner is satisfied that it is appropriate to do so.  Subsection 73ZO(2) provides that the Commissioner may vary or revoke a banning order on his or her own initiative or on application by the person against whom the order was made. 

 

264.    Subsection 73ZO(3) provides that an application to vary or revoke a banning order must be in writing, in the form (if any) approved in writing by the Commissioner; and include any information and documents required by the Commissioner.  If the Commissioner varies a banning order they must give the person a statement of reasons for the variation, where this is requested by the person to whom the banning order applies.  If the Commissioner proposes not to vary or revoke a banning order in accordance with an application lodged under subsection 73ZO(2)(b), the Commissioner must give the person an opportunity to make a submission to the Commissioner on the matter.

 

265.    New subsection 73ZO(6) provides that the Commissioner must include in the written notice a statement of reasons for the variation or revocation of the order and if the variation or revocation relates to a person who is employed or otherwise engaged by an NDIS provider - notify the NDIS provider as soon as possible.

 

266.    A decision to vary, or to refuse to vary or revoke, a banning order is a reviewable decision for the purposes of section 99 of the Act.

 

267.    New subsection 73ZO(7) provides that the variation or revocation of an order takes effect from the day specified in the order.  Subsection 73ZO(8) provides that a variation or revocation of an order is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 because it does not determine the law but set out administrative decisions .

 

New section 73ZP- Enforceable undertakings

 

268.    New section 73ZP applies Part 6 of the Regulatory Powers Act which creates a framework for accepting and enforcing undertakings relating to compliance with provisions of the Act.

 

269.    New section 73ZP provides that the Commissioner is an authorised person for the purposes of accepting an undertaking under Part 6 of the Regulatory Powers Act.  A relevant court for the purposes of exercising powers under Part 6 of the Regulatory Powers Act is the Federal Court, the Federal Circuit Court or a court of a State or Territory that has jurisdiction in relation to matters arising under the Act.

 

270.    New section 73ZP may be used to secure compliance with the Act in lieu of civil proceedings.  A person may offer an enforceable undertaking to demonstrate compliance with the Act and, make commitments which promote high quality and safe supports and services provided under the NDIS.

 

Modifications of Part 6 of the Regulatory Powers Act

271.    New subsection 73ZP(4) broadens the types of undertakings that can be accepted by the Commissioner to include the provision of compensation for loss or damage as a result of a contravention or alleged contravention of the Act.  For example, this may be offered by an NDIS provider in response to a complaint or incident which resulted in financial loss to a person in order to resolve a complaint or incident.

 

272.     Pursuant to section 114 of the Regulatory Powers Act, the Commissioner may accept any of the following undertakings:

 

·       a written undertaking given by a person that the person will, in order to comply with a provision enforceable under Part 3A, take specified action;

 

·       a written undertaking given by a person that the person will, in order to comply with a provision enforceable under Part 3A, refrain from taking specified action;

 

·       a written undertaking given by a person that the person will take specified action directed towards ensuring that the person does not contravene a provision enforceable under Part 3A, or is unlikely to contravene such a provision, in the future.

 

273.    In addition, subsection 73ZP provides for the Commissioner to be able to accept an undertaking given by a person in connection with any matter relating to a contravention or alleged contravention by the person of the Act.  A provider may for example, offer to undertake activities which contribute more broadly to the functions of the Commissioner, people with disability and the NDIS market.

 

New section 73ZQ - Injunctions

 

274.    New section 73ZQ triggers Part 7 of the Regulatory Powers Act which creates a framework for using injunctions to enforce provisions.

 

275.    New section 73ZQ provides that the Commissioner is an authorised person for the purposes of Part 7 of the Regulatory Powers Act and aligns with corresponding provisions and definitions of the Regulatory Powers Act in relation to relevant courts for the purposes of Part 3A of the NDIS Act.

 

Modifications of Part 7 of the Regulatory Powers Act

276.    New subsection 73ZQ clarifies that, despite the operation of section 121 of the Regulatory Powers Act, a relevant court may grant an injunction by consent of all of the parties to proceedings brought under Part 7 of the Regulatory Powers Act.  This aims to reduce the need for an application to be made to a court in each instance.

 

New section 73ZR - Appointment of inspectors and investigators

 

277.    New subsection 73ZR(1) allows the Commission to appoint a member of staff of the Commission, a person assisting the Commission, or a person performing services for the Commonwealth under a contract with the Commonwealth as an inspector, an investigator or both for the purposes of this Part of the Act. 

 

278.    New subsection 73ZR(2) sets out the criteria which the Commissioner must be satisfied about prior to appointing a person under subsection (1), including that the person has suitable training or experience to properly exercise the powers for which the person will be authorised to use; and the person is otherwise an appropriate person to be appointed as an inspector, investigator or both.  Subsection 73ZR(3) provides that a person appointed under this section, in exercising powers as such, must comply with any directions of the Commissioner. 

 

279.    New subsection 73ZR(4) provides that where a direction is given in writing under subsection (3) that direction is not a legislative instrument within the meaning of subsection 8(1) of the Legislation Act 2003 because it does not determine the law but sets out administrative decisions .

Division 9 - NDIS Provider Register

 

New section 73ZS - NDIS Provider Register

 

280.    New section 73ZS provides that the Commission must establish and maintain a register for the purposes of the Act (the NDIS Provider Register).  Subsection 73ZS(2) provides for the Register to be kept in any form that the Commissioner considers appropriate, to allow for the flexibility needed where such a register has not been created or used previously and to allow this register to adapt to the needs of the regulator over time. 

 

281.    New subsection 73ZS(3) provides an exhaustive list of what must be included for each person who is a registered provider on the Register held by the Commission under subsection (1), including any other matter prescribed by the NDIS Rules for the purposes of this paragraph. 

 

282.    New subsection 73ZS(4) provides an exhaustive list of what may be included in relation to an NDIS provider (other than a registered NDIS provider), including any other matter prescribed by the NDIS rules for the purposes of this paragraph. 

 

283.    New subsection 73ZS(5) provides an exhaustive list of what may be included on the Register in relation to a person who was an NDIS provider, including any other matter prescribed by the NDIS rules for the purposes of this paragraph. 

 

284.    New subsection 73ZS(6) provides that the Commissioner may include other information on the Register if the Commissioner is satisfied that information is relevant to the provision of supports or services to people with disability. 

 

285.    New subsection 73ZS(7) provides for the NDIS rules to make provision for and in relation to the correction of entries in the Register, the publication of the Register in whole or part, or of specified information entered on to the Register and any other matter relating to the administration or operation of the Register. 

 

286.    It is necessary to enable a high level of flexibility in relation to the NDIS Register to support the exercise of choice and control by people with disability in response to the emerging NDIS market and manage protected information. 

 

287.    Through subsection 73ZS(7) the NDIS rules may make provision for the publication of the Register in whole or part, or of specified information entered on to the Register to manage protected information appropriately. 

 

288.    The types of information that may be published on the NDIS Provider Register may include the following:

 

·       whether a provider of supports or services has been subject to any enforcement action or sanction by the commission, for example whether a provider is subject to a compliance notice, enforceable undertakings or a banning order;

 

·       a service provider’s performance;

 

·       a service provider’s compliance with legislative requirements;

 

·       any investigation that results in a compliance activity, for example, education;

 

·       a list of approved quality auditors;

 

·       a list of registered providers, for example, registered behaviour support practitioners.

 

Item 49 - Subparagraph 82(1)(b)(ii )

 

289.    This item amends subparagraph 82(1)(b)(ii) of the Act to insert ‘Agency‘ after ‘to an’ to make it clear that this subparagraph relates to an officer of the Agency and not the Commission. 

 

Item 50 - Section 99

 

290.    This item repeals section 99 of the Act and inserts a new section to include information relevant to reviewable decisions made by the Commissioner and a description of reviewable decisions and the relevant decision-maker for both the Commission and the Agency. 

 

Item 51 - Subsection 100(1)

 

Item 52 - Subsection 100(2)

 

Item 53 - Subsections 100(3) and (5)

 

Item 54 - Paragraph 100(5)(c)

 

Item 55 - Subsections 100(7) and (8)

 

Item 56 - Subsection 100 (9)

 

291.    These items make technical amendments to section 100 of the Act relating to the process for the review of reviewable decisions and extending the operation of section 100 to the Commissioner.

 

Item 57 - Subsection 102(1)

 

292.    This item amends subsection 102(1) of the Act by omitting the words ‘the CEO’ (wherever occurring) and substituting it with the words ‘the decision-maker’ to extend the subsection to include both the Commissioner and CEO as decision-makers under the Act. 

 

Item 58 - After paragraph 144(3)(b)

 

293.    This item inserts, after paragraph 144 (3)(b), a new subsection (ba) which clarifies that the Advisory Council must not provide advice that relates to ‘the registration of a person or entity as a registered NDIS provider, or the variation, suspension or revocation of that registration’.

 

Item 59 - Paragraph 144(3)(c)

 

294.    This item amends paragraph 144(3)(c) of the Act to extend the paragraph to the Commission by inserting the words ‘or the Commission’ after ‘the Agency’.

 

Item 60 - After Chapter 6

 

295.    This item inserts new Chapter 6A which establishes the NDIS Quality and Safeguarding Commission.

Chapter 6A - NDIS Quality and Safeguards Commission

Part 1- Commission establishment and functions

 

New section 181A - Establishment of the Commission

 

296.    New section 181A establishes the National Disability Insurance Scheme Quality and Safeguards Commission.  This new section establishes the Commission as a listed entity and the NDIS Quality and Safeguards Commissioner as the accountable authority for the purposes of the Public Governance, Performance and Accountability Act 2013 (the PGPA Act).

 

297.    Officials of the Commission will be the Commissioner, the staff of the Commission, persons assisting the Commission and consultants engaged by the Commissioner.

 

New section 181B - Commission’s functions

 

298.    New section 181B establishes that the function of the Commission is to assist the Commissioner in the performance of the Commissioner’s functions.

 

Part 2 - NDIS Quality and Safeguards Commissioner

 

New section 181C - Commissioner

 

299.    New section 181C provides that there is to be a NDIS Quality and Safeguards Commissioner.  The Productivity Commission in the Caring for Older Australians Report argued that the creation of a single regulatory body encompassing registration and complaints enables ‘responsive regulation’ wherein regulatory responses can move up and down the regulatory pyramid quickly and easily as required by different cases and changing circumstances (pages 401, 402 and 415).

 

New section 181D - Commissioner’s functions and powers

 

300.    Under new section 181D the Commissioner will be responsible for the leadership and management of the Commission and for implementing the Commission’s overall strategic direction. Consistent with the Framework:

 

·       an NDIS Registrar will be responsible for managing the Commissioner’s registration function under new section 181F which includes reportable incidents as a condition of registration;

 

·       a Complaints Commissioner will be responsible for managing the Commissioner’s complaints functions under new section 181G and will also receive reports of incidents;

 

·       a Senior Practitioner will be responsible for managing the Commissioner’s behaviour support function under new section 181H.

 

301.    While these office holders will independently manage each of these functions, the Commissioner will oversee the seamless regulatory regime for the NDIS underpinned by the investigation, enforcement and information powers contained in this Bill.  This is consistent with recommendations of recent inquiries including the Senate Inquiry which recommended:

 

‘consider[ing] the establishment of a national system for reporting and investigating and eliminating violence, abuse and neglect of people with a disability, which…[is] best implemented through the establishment of a national, independent, statutory protection watchdog that has broad functions and powers to protect, investigate and enforce findings related to situations of violence, abuse and neglect of people with disability’.

 

302.    Consistent with these recommendations, section 181D describes the functions and powers of the Commissioner which have been split between core functions and specific functions, all of which must be informed by, and exercised in accordance with the existing objects and principles of the Act. 

 

303.    In addition to the Commissioner’s core functions in new section 181E, the Commissioner has the following specific functions:

 

·       the registration and reportable incidents;

 

·       the complaints;

 

·       the behaviour support;

 

·       such other functions that are conferred on the Commissioner by the Act (once enacted) or any other law of the Commonwealth, such as the Public Service Act 1999 , or the PGPA Act;

 

·       anything incidental, or conducive to, the performance of any of the above functions.

 

304.    New subsection 181D(2) enables the Commissioner, by notifiable instrument, to make guidelines relating to the performance of any of the above functions.  Notifiable instruments are laws on matters of detail made by the Commissioner pursuant to this new subsection. Under the Legislation Act 2003 all notifiable instruments and their compilations must be registered on the Legislation Register.  Unlike legislative instruments, notifiable instruments are not subject to Parliamentary disallowance and do not automatically sunset 10 years after commencement.

 

305.    New subsection 181D(3) enables the Commissioner to consult and cooperate with a broad range of organisations and persons in relation to the Commissioner’s functions and the NDIS, including people with disability, organisation or people representing people with disability, governments and other bodies with an interest in the supports and services provided under the NDIS.  This subsection also explicitly enables the Commissioner to have regard to the interests and needs of persons receiving, or eligible to receive, supports or services under the NDIS in relation to the performance of the Commissioner’s functions. 

 

306.    New subsection 181D(4) provides that the Commissioner must use his or her best endeavours to:

 

·       provide opportunities for people with disability to participate in matters that relate to them and to take into consideration the wishes and views of people with disability;

 

·       conduct compliance and enforcement activities in a risk responsive and proportionate matter; and

 

·       support and maintain a diverse and sustainable NDIS market. 

 

307.    New subsection 181D(5) provides the Commissioner with a necessary or convenient power in connection with the performance of his or her functions.

 

New section 181E - Commissioner’s core functions

 

308.    New section 181E sets out the core functions of the Commissioner.  The Commissioner will have the following core functions:

 

·       to uphold the rights of, and promote the health, safety and wellbeing of, people with disability receiving supports or services, including those received under the NDIS;

 

·       to develop a nationally consistent approach to managing quality and safeguards for people with disability receiving supports or services, including those received under the NDIS;

 

·       to promote the provision of advice, information, education and training to NDIS providers and people with disability;

 

·       to secure compliance with the Act through effective compliance and enforcement arrangements, including through monitoring and investigation functions conferred on the Commissioner by Division 8 of Part 3A of Chapter 4;

 

·       to promote continuous improvement amongst NDIS providers and the delivery of progressively higher standards of supports and services to people with disability;

 

·       to develop and oversee the broad policy design for a nationally consistent framework relating to the screening of workers involved in the provision of supports and services to people with disability;

 

·       to provide advice or recommendations to the Agency or the Board in relation to the performance of the Agency’s functions;

 

·       engage in, promote and coordinate the sharing of information to achieve the objects of the Act;

 

·       provide NDIS market oversight including by monitoring changes in the NDIS market which may indicate emerging risk and by monitoring and mitigating the risks of unplanned service withdrawal. 

 

309.    In new section 181E, the Commissioner’s role includes:

 

·       contributing to Agency provider benchmarking and to provider quality ratings;

 

·       monitoring, reviewing and reporting on the effectiveness of the NDIS, including market trends and the quality of outcomes achieved;

 

·       active monitoring of those providers who would be ‘hard to replace’ if they ceased trading, including prudential oversight of financial viability; and

 

·       forming a national perspective on markets, using data and information generated by consumers and providers to identify trends in provider practice and wider market responses that may require action. 

 

310.    The NDIS market is the arrangements through which participants use NDIS funding to obtain goods or services from providers.  Mechanisms to provide information to people with disability about providers and to develop participants’ skills as consumers are part of the NDIS market.  NDIS market risks include anything that might reduce choice and control by people with disability to access goods or services that support them to live an ordinary life.  An effective NDIS market is dependent upon people with disability being empowered to make informed decisions about high quality and safe supports and providers being informed about and able to meet the needs of people with disability. 

 

311.    The Commission will work closely with the Agency where its market oversight function identifies systemic provider risks likely to impact the Agency’s market stewardship role.  The Agency’s market stewardship role aims to ensure enough providers are available to meet the support needs of people with disability in geographic regions and identifies options for market intervention, including ‘Provider of Last Resort’ arrangements.

 

312.    The Commissioner’s market oversight role will be complementary to the Agency’s stewardship function.  The Agency works ‘hands-on’ with participants and their families and carers to develop their skills as consumers, and actively intervenes where necessary to ensure supply (including interventions ranging from market signalling to bulk purchasing and direct procurement).  The Agency uses information from its engagement with participants, providers and stakeholders to inform this role. 

 

313.    The Commissioner, through market oversight, will take a broader perspective on the market to identify risks and trends in provider practice, particularly where the provider would be ‘hard to replace’ if they ceased trading or where unplanned service withdrawal is likely to cause harm to a participant or group of participants.  The Commissioner will monitor the market for systemic issues, complementing the Agency’s role in monitoring and addressing local and individual market issues.  Communication lines between the Commissioner and Agency will be vital and are supported by the Act. 

 

314.    New section 181E also provides for the Commissioner to be responsible for developing and overseeing broad policy design for a nationally consistent approach to the screening of workers providing NDIS supports or services which will be jointly agreed with States and Territories.  State and territories will remain responsible for the operational aspects of worker screening including worker screening units.  NDIS worker screening requirements will be implemented through the registration functions of the Commissioner which will link to the national policy for NDIS worker screening.  An NDIS provider who applies to be registered will need to engage workers screened in accordance with the national policy and provide evidence that it is meeting its registration requirements in regards to screening workers.  It is intended that the design and policy for the screening of workers in the NDIS should align as much as possible with the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, Working with Children Checks Report.

 

New section 181F - Commissioner’s registration and reportable incident functions

 

315.    New section 181F describes the Commissioner’s registration which includes reportable incidents as a condition of registration.  It is envisaged that an NDIS Registrar will be responsible for the following registration and reportable incident functions:

 

·       functions conferred on the Commissioner by Division 2 of Part 3A of Chapter 4 (about registered NDIS providers);

 

·       functions conferred on the Commissioner by section 73U (about approved quality auditors);

 

·       monitor registered NDIS providers compliance with their conditions of registration, including in relation to the screening of workers in accordance with the NDIS Practice Standards;

 

·       provide education, guidance and best practice information to NDIS providers in relation to compliance matters;

 

·       functions relating to the notification and management of reportable incidents conferred on the Commissioner by the NDIS rules made for the purposes of 73Z;

 

·       support registered NDIS providers to develop and implement effective incident management systems and to build provider capability to prevent and manage incidents;

 

·       collect, correlate, analyse and disseminate information relating to incidents, including reportable incidents, to identify trends or systemic issues.

 

New section 181G - Commissioner’s complaints functions

 

316.    New section 181G sets out the Commissioner’s complaints functions.  It is envisaged that a dedicated Complaints Commissioner will be responsible for receiving complaints and incident reports.  The Commissioner’s complaints functions are as described in new section 181G and Division 5 of this Bill and include;

 

·       functions relating to the investigation, management, conciliation and resolution of complaints conferred on the Commissioner by the NDIS rules made for the purposes of section 73X;

 

·       educate people about, and develop resources relating to, best practice handling of complaints arising out of, or in connection with, the provision of supports or services by NDIS providers; and matters arising from such complaints;

 

·       build the capability of people with disability to pursue complaints in relation to the provision of supports and services by NDIS providers which includes facilitating the complaints process for people with disability and supporting them to understand their rights;

 

·       build NDIS provider capability to develop a culture of learning and innovation to deliver high quality supports and services, prevent incidents and respond to complaints;

 

·       collect, correlate, analyse and disseminate information relating to complaints arising out of, or in connection with, the provision of supports or services by NDIS providers.

 

317.    The collection, correlation and analysis of data will be undertaken to identify systemic issues to be addressed.  This will enable the Commissioner to identify emerging issues in the NDIS market and coordinate information exchanges and regulatory responses with other relevant bodies.

 

New section 181H - Commissioner’s behaviour support function

 

318.    New section 181H sets out the behaviour support function of the Commissioner.  It is envisaged that a national Senior Practitioner with appropriate clinical expertise will be responsible for providing leadership in behaviour support, and in the reduction and elimination of the use of restrictive practices, by NDIS providers, including:

 

·       building capability in the development of behaviour support through:

 

  • developing and implementing a competency framework for registered NDIS providers whose registration includes the provision of behaviour support assessments and developing behaviour support plans; and

 

  • assessing the skills and experience of such providers against the competency framework; and

 

·       developing policy and guidance materials in relation to behaviour supports and the reduction and elimination of the use of restrictive practices by NDIS providers; and

 

·       providing education, training and advice on the use of behaviour supports and the reduction and elimination of the use of restrictive practices; and

 

·       overseeing the use of behaviour support and restrictive practices by;

 

  • monitoring registered NDIS provider compliance with the conditions of registration relating to behaviour support plans; and

 

  • collecting, analysing and disseminating data and other information relating to the use of behaviour supports and restrictive practices by NDIS providers; and

 

·       undertaking and publishing research to inform the development and evaluation of the use of behaviour supports and to develop strategies to encourage the reduction and elimination of restrictive practices by NDIS providers.

 

319.    The United Nations Committee on the Rights of People with Disabilities (UNCRPD) has expressed concern about the unregulated use of restrictive practices and recommended that State parties take immediate steps to end such practices. Consistent with the UNCRPD, Commonwealth, State and Territory Governments endorsed the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector in 2014 (the National Framework).  

 

320.    The National Framework outlines high-level guiding principles (such as human rights and a person-centred approach), and core strategies, including use of data to inform practice and workforce development. These principles and strategies underpin the approach taken in the NDIS Quality and Safeguarding Framework and the new arrangements will align with the commitment of all Australian governments to reduce and eliminate the use of restrictive practices in disability services and with Australia’s obligations under the UNCRPD.

 

321.    Restrictive practices are defined broadly to mean any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability. They include the use of seclusion, as well as chemical, mechanical and physical restraint, psycho-social and environmental restraints, and consequence driven practices (usually involving withdrawal or activities or items). 

 

322.    The functions of the Commissioner in relation to behaviour support will be implemented through the registration requirements for behaviour support practitioners and providers implementing or using authorised restrictive practices as a last resort.

 

323.    The NDIS Practice Standards and the competency framework for behaviour support practitioners who will be engaged in the development of behaviour support plans will reflect best practice. Positive Behaviour Support is recognised as best practice in addressing behaviours of concern. The National Framework defines Positive Behaviour Support as ‘the integration of the contemporary ideology of disability service provision with the clinical framework of applied behaviour analysis. Positive Behaviour Supports are supported by evidence encompassing strategies and methods that aim to increase the person's quality of life and reduce challenging behaviour.’

 

324.    Within the NDIS, a restrictive practice can only be used when it is part of a behaviour support plan developed by a registered behaviour support practitioner and authorised by the state or territory in which the participant resides. The Bill provides for the Commission to mandate that both the behaviour support practitioner developing the plan and the provider(s) implementing an authorised restrictive practice be registered with the Commission. Mandating these providers to be registered with the Commission will ensure that the competence of those involved in behaviour support are assessed against the Commission’s competency framework and the NDIS Practice Standards. A civil penalty offence will apply if these categories of supports are delivered by an unregistered provider as well as the Commissioner’s other compliance and enforcement powers. This does not preclude criminal or civil action that may be taken under State or Territory legislation.

 

325.    A behaviour support practitioner will work with the participant, their family and carers and their provider(s) to develop a behaviour support plan. A behaviour support plan may involve the use of one or more restrictive practices that may be utilised during the delivery of different supports, which may mean multiple providers use a restrictive practice in connection with a participant’s plan. Only registered providers will be able to use restrictive practices under behaviour support plans. Authorisation (however described) must be obtained from the relevant state or territory for the use of any restrictive practice.

 

326.    Authorisation encompasses the range of processes outlined in relevant state and territory legislation and/or policy, including:

 

·       obtaining informed consent from the participant and/or their guardian; or

 

·       obtaining approval from a guardianship or administration tribunal; or

 

·       seeking approval in line with a State or Territory authorisation process.

 

327.    The Commonwealth, States and Territories will work together with a view to working towards national consistency in authorisation arrangements over time.

 

328.    It is the intention that conditions of registration will be established under new section 73H including:

 

·       that providers will be required to comply with relevant state or territory authorisation or consent processes (however described) in relation to the use of restrictive practices;

 

·       the content or format of a behaviour support plan; 

 

·       the need to submit all behaviour support plans that contain a restrictive practice;

 

·       the need to record and report on the use of a restrictive practice; and

 

·       the frequency with which a behaviour support plan must be reviewed.

 

329.    All unauthorised or emergency uses of a restrictive practice by providers will be a reportable incident and must be notified to the Commission. This data will provide evidence to inform the Commission’s policy role to reduce and eliminate the use of restrictive practices within the NDIS.

 

330.    Any information indicating provider non-compliance with the regulatory requirements will invoke a regulatory response ranging from education, investigation, referral to police and sanctions such as suspension or revocation of registration and civil penalties where there are sufficient concerns about provider competency or adherence to applicable policies and legislation.  Information sharing arrangements will enable a co-ordinated regulatory response and protection and support for participants.

 

331.    The Commissioner will provide leadership in behaviour support through guidance, education and advice to the sector, the Agency, NDIS participants and their families and carers, with a view to building capability in behaviour support and reducing and eliminating the use of restrictive practices.

 

332.    To inform and implement this function the Commissioner will work closely with people with disability, organisations representing people with disability, state and territory bodies and persons involved in the authorisation arrangements for restrictive practices.

 

333.    Over time the Commissioner will build up significant information about what is happening across the nation in terms of the use of restrictive practices in the NDIS and they will have an important leadership role in implementing behaviour support approaches that reduce and eliminate restrictive practices. 



New section 181J- Charging of fees by Commissioner

 

334.    New section 181J provides that the Commissioner may charge fees for services provided by the Commission.  Should this power be engaged, fees charged under this provision will contribute to the operating budget of the Commission.

 

335.    The Minister may, by legislative instrument, determine the things that the Commissioner does in the performance of his or her functions for which he or she may charge fees and the amount, or a method of working out the amount, of those fees.

 

336.    Any fees charged must not amount to taxation.

 

New section 181K - Minister may give directions to the Commissioner

 

337.    Consistent with the establishment of an independent statutory body that is prescribed under the PGPA Act, new section 181K provides for the Minister to give general directions to the Commissioner about the performance of the Commissioner’s functions and powers.

 

338.    Directions from the Minister must be of a general nature only and cannot, for example, relate to a decision of the Commissioner in respect of a specific individual or NDIS provider and must not be inconsistent with the Act.  This qualification on the power of the Minister to give directions is to ensure the independence of the Commissioner. 

 

339.    The Commissioner is required to comply with directions from the Minister, except where a direction is inconsistent with the Act or relates to the performance of functions or exercise of powers under the PGPA Act or the Public Service Act 1999 .

 

340.    All directions are legislative instruments (in accordance with the Legislation Act 2003 ) which means that they are subject to Parliamentary and public scrutiny.  Directions are not however, subject to disallowance by the Parliament because of the operation of section 44 of the Legislation Act 2003 , which expressly provides that Ministerial directions to any person or body are not subject to disallowance. Section 54 of the Legislation Act 2003 also provides that such directions are not subject to sunsetting.

 

New section 181L - Appointment of the Commissioner

 

341.    New section 181L provides that the Commissioner will be appointed by the Minister by written instrument and that he or she will hold office on a full-time basis.

 

342.    The instrument of appointment will specify the period for which the Commissioner holds office which must not exceed three years.   This term is in keeping with Australian Government policy on the selection of statutory office holders working in, or in conjunction with, Australian Public Service agencies.

 

343.    The Commissioner may, however, be re-appointed for further terms. This is permitted under subsection 33AA of the Acts Interpretation Act 1901 that provides that in any Act, a reference to appointment includes re-appointment.

 

344.    The Commissioner’s appointment will not be invalid merely because of a defect or irregularity in connection with the appointment (for example, if there has been an error in the paperwork appointing the Commissioner).

 

New section 181M - Acting appointments

 

345.    New section 181M specifies that the Minister may appoint a person to act as the Commissioner during a vacancy in the office of Commissioner or when the Commissioner is absent from duty, overseas or unable to perform the duties of the office (for whatever reason).

 

346.    The acting appointment is to be by written instrument.

 

347.    Sections 20, 33AB and subsection 33A(1) of the Acts Interpretation Act 1901 (which refer to appointments and positions) apply to acting appointments.

 

New section 181N - Remuneration and allowances

 

348.    New subsection 181N(1) provides that the Commissioner’s remuneration is determined by the Remuneration Tribunal.   The Remuneration Tribunal is an independent statutory body that handles the remuneration of appointees to key Commonwealth offices.  If no such determination is in operation, the Commissioner’s remuneration is determined in accordance with subsection (4)(a) of this provision.

 

349.    New subsection 181N(2) provides that the Commissioner is also to be paid the allowances that are determined in accordance with subsection (4)(b) of this provision, in addition to any allowances set by the Remuneration Tribunal.

 

350.    New subsection 181N(3) clarifies that this section has effect subject to the Remuneration Tribunal Act 1973 (meaning that it should be read in the context of that Act and the means by which the Remuneration Tribunal sets remuneration). This is a standard provision included in similar sections in other legislation.

 

351.    New subsection 181N(4) provides that the Minister may, by legislative instrument:

 

·       determine the Commissioner’s remuneration for the purposes of subsection (1) where there is no determination by the Remuneration Tribunal in operation; and

 

·       determine any allowances to be paid to the Commissioner.

 

New section 181P - Leave of absence

 

352.    New section 181P provides that the Remuneration Tribunal determines the Commissioner’s recreation leave entitlements and that the Minister can grant the Commissioner other types of leave on the terms and conditions decided by the Minister.

 

New section 181Q - Outside employment

 

353.    New section 181Q prevents the Commissioner from engaging in paid employment outside the duties of his or her office without the Minister’s approval. Reasons for such a provision are to minimize the risk of a conflict of interest and to ensure that the Commissioner focuses on his or her job in leading the Commission, noting that the position is a full-time one.

 

New section 181R - Other terms and conditions

 

354.    New section 181R provides that to the extent that terms and conditions for the Commissioner are not covered by the Act, this section enables the Minister to determine any other terms and conditions in writing.

 

New section 181S - Resignation

 

355.    New section 181S provides for the Commissioner to resign his or her appointment and when the resignation takes effect.   The Commissioner may resign by giving written notice to the Minister.   The resignation takes effect on the day that the notice is received by the Minister or on a later date if the Commissioner has specified a later date in the notice of resignation.

 

New section 181T - Termination of appointment

 

356.    New section 181T provides for the Minister to terminate the Commissioner’s appointment.  The Minister may terminate the appointment of the Commissioner:

·       for misbehavior; or

·       if the Commissioner is unable to perform the duties of his or her office because of physical or mental incapacity; or

·       becomes bankrupt; or

·       applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or

·       compounds with his or her creditors; or

·       makes an assignment of his or her remuneration for the benefit of his or her creditors; or

·       is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or

·       engages, without the Minister’s approval, in paid work, outside the duties of his or her office.

 

357.    The Commissioner may also be terminated if he or she fails to comply with any requirements of the PGPA Act attaching to the duties of an accountable authority, such as the duty to disclose relevant interests.

 

Part 3 - Staff etc. of the Commission

 

New section 181U - Staff of the Commission

 

358.    New section 181U provides that the staff of the Commission are to be engaged under the Public Service Act 1999 . For the purposes of that Act, the Commissioner and the staff of the Commission together constitute a statutory agency and the Commissioner is the head of the statutory agency.

 

New section 181V - Consultants

 

359.    New section 181V provides that the Commissioner may engage consultants to assist in the performance of the Commissioner’s functions.   Consultants are to be engaged on the terms and conditions that the Commissioner determines in writing. The Commissioner may wish to engage consultants to, for example, work on matters which would require particular knowledge and expertise.

 

New section 181W - Persons assisting the Commission

 

360.    New section 181W provides that the Commissioner may also be assisted by certain officers and employees of any of the following bodies:

 

·       Agencies (within the meaning of the Public Service Act 1999 );

 

·       a State or Territory; 

 

·       authorities of a State or Territory; or

 

·       authorities of the Commonwealth.

 

361.    This allows, for example, State or Territory government employees to be seconded to work for the Commissioner in connection with the performance of the Commissioner’s functions.

 

Item 61 - Subsection 183(2)

 

362.    This item amends subsection 183 (2) of the Act to align the new terminology in relation to officers of the Commission and Agency by inserting the word ‘Agency’ after the words ‘the first day an’.

 

Item 62 - Paragraph 188(2)(d)

 

363.    This item amends subsection 188 (2)(d) of the Act to align the new terminology in relation to officers of the Commission and Agency by omitting the words ‘the officer’ and inserting the words ‘the Agency officer’. 

 

Item 63 - Subsection 188(4)

 

364.    This item amends subsection 188 (4) of the Act to align the new terminology in relation to officers of the Commission and Agency by inserting the word ‘Agency’ after the word ‘specified’.

 

Item 64 - Subsection 188(5)

 

365.    This item amends subsection 188 (5) of the Act to align the new terminology in relation to officers of the Commission and Agency by inserting the word ‘Agency’ after the words ‘before an’.

 

Item 65 - After section 197

 

366.    This item amends the Act by inserting relevant provisions for the method of notification by the Commissioner. 

 

367.    Item 64 inserts new section 197A which is an equivalent provision to section 196 of the Act for the Commissioner in relation to the method of notification by the Commissioner.

 

368.    Item 64 inserts new section 197B which is a mirror provision to section 197 of the Act for the Commissioner.  It provides that the Commissioner not required to make a decision where a request or application is not in the approved form or where documents and information have not been provided. 

 

369.    Section 7 of the Act requires the contents of any notice, approved form or information given to a person with disability to be explained to the maximum extent possible in the language, mode of communication and terms which that person is most likely to understand.

 

Item 66 - Section 201 (heading)

 

370.    This item amends the heading in section 201 of the Act by repealing the heading and substituting ‘Delegation by the Minister to the CEO’ to clarify that the section relates to the CEO and not the Commissioner.

 

Item 67 - At the end of section 201

 

371.    This item amends section 201 of the Act by adding a new subsection (4) which provides that the Minister may not delegate the provisions listed in new section 201A (NDIS Rules for the purposes of the this schedule) to the CEO. 

 

Item 68 - After section 201

 

372.    This item amends the Act by inserting a new section 201A.  New section 201A lists the NDIS rules in relation to which the Minister may delegate his or her rule-making powers under section 209 to the Commissioner.  The NDIS rules that may be delegated are limited to those that are relevant to the Commissioner’s functions.  New subsection 201A(2) provides that when exercising rule making powers under delegation, the Commissioner must comply with any directions given by the Minister. 

 

Item 69 - Subsection 202(1)

 

373.    This item amends subsection 202(1) of the Act to align the new terminology in relation to officers of the Commission and Agency by inserting the word ‘Agency’ after ‘delegate to an’. 

 

Item 70 - Subsection 202(2)

 

374.    This item amends subsection 202(2) of the Act to align the new terminology in relation to officers of the Commission and Agency by inserting the word ‘Agency’ after ‘only to an’. 

 

Item 71 - After section 202

 

375.    This item amends the Act by inserting a new section 202A which is equivalent to section 202 of the Act for the purposes of the Commissioner.  This provides that the Commissioner may delegate to a Commission officer any or all of his or her powers under the Act, regulations or NDIS rules.  New subsection 202A(2) provides that the Commissioner’s powers and functions under Part 2 of Chapter 4 (privacy) can only be delegated to a member of staff of the Commission. 

 

376.    New subsection 202A(3) provides that a person exercising powers or functions under a delegation must comply with any direction of the Commissioner. 

 

377.    This item also amends the Act by inserting a new section 202B which provides that the Commissioner may only delegate the powers and functions mentioned in subsection 202B(2) (powers under Division 8 of new Part 3A of Chapter 4, including powers and incidental powers and functions under the Regulatory Powers Act in relation to the provisions of the Act) to an SES employee, or an acting SES employee, in the Commission. 

 

378.    New subsection 202B(3) provides that where an SES employee is exercising powers or performing functions under a delegation under new subsection 202B(1) they must comply with any directions of the Commissioner.

 

Item 72 - Subsections 203(1) and (2)

 

379.    This item is a technical amendment to repeal subsections 203(1) and (2) of the Act and replace them with new subsections that extend the entities to which the Act applies to the new entities as defined for the purposes of Schedule.

 

Item 73 - At the end of section 203

 

380.    This item amends section 203 of the Act by adding subsection (6) to apply the section in relation to a contravention of a civil penalty provision and (7) which provides that for the purposes of the Act, a change in the composition of a partnership does not affect the continuity of the partnership.

 

Item 74 - Section 204 (heading)

 

381.    This item amends the heading of section 204 of the Act by repealing the heading and substituting it for ‘Time frames for decision making by CEO’ to clarify that the section refers to the Agency and not the Commission. 

 

Item 75 - At the end of section 205

 

382.       This item amends section 205 of the Act by adding subsection (3) to clarify that the Crown may be liable to pay a pecuniary penalty under new sections 73ZK (civil penalty orders) or 73ZL (infringement notices). 

 

Item 76 - At the end of Part 3 of Chapter 7

 

383.    This item amends Part 3 of Chapter 7 of the Act by adding new section 207A requiring State or Territory agreement to certain delegations under the Act.  New section 207A provides that a power or function under the Act cannot be delegated to a State or Territory or an officer, as described in this new section, unless there is written agreement to do so by the relevant Minister of the State or Territory.  This has been included to ensure that the Commonwealth does not impose obligations or duties on State officials without the consent of the State concerned in line with the High Court decision in Melbourne Corporation v Commonwealth (1947) 74 CLR 31.

 

Item 77 - After subsection 209(1)

 

384.    This item amends subsection 209(1) of the Act by inserting subsection (1A) to clarify that NDIS rules:

·       may be of a general application or may be limited as provided in the rules; and

·       may make different provisions in relation to different kinds of providers, participants, supports, services, circumstances or any other matter.

385.    This subsection is not intended to limit subsection 33(3A) of the Acts Interpretation Act 1901

Item 78 - Subsection 209(8) (at the end of the cell at table item 2 column headed ‘Description’ )

 

386.    This item amends subsection 209(8) (table item 2) by adding rules to be made in relation to the functions and powers of the Commission to Category B.  Category B rules require agreement with a host jurisdiction because they relate to an area, law or program of a host jurisdiction.  Those rules now include rules made under:  

 

·       New section 73H, to the extent that the rules deal with conditions on classes of registration relating to behaviour support; and

 

·       New subsection 73T(1), to the extent that the NDIS Practice Standards deal with the screening of workers involved in the provision of supports or services to people with disability under the NDIS.

 

Item 79 - Subsection 209(8) (cell at table item 4, column headed ‘Description’)

 

387.    This item amends subsection 209(8) (table item 4) by adding rules made in relation to the functions and powers of the Commission to Category D rules, which require consultation with each host jurisdiction. 

 

Item 80 - At the end of section 209

388.    This item amends section 209 of the Act by adding new subsection (9) which provides that the NDIS rules may not do the following:

·       create an offence or civil penalty;

·       provide for powers of arrest or detention or entry, search or seizure;

·       impose a tax;

·       set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in the Act;

·       directly amend the text of the Act.

 

389.       New subsection 209(10) clarifies that NDIS rules that are inconsistent with the regulations have no effect to the extent of the inconsistency; however NDIS rules are taken to be consistent with the regulations to the extent that the rules are capable of operating concurrently with the regulations. 

 

Part 2 - Transitional rules

 

Item 81 - Transitional rules

390.       Item 81 provides for the Minister, by legislative instrument, to make rules to facilitate the transition of jurisdictions to the new arrangements provided for on the enactment of this Bill.  The rules that can be made under this item are limited to rules that are transitional in nature (including any savings or applications provisions) relating to:

·       the amendments or repeals made by this Schedule; or

·       the enactment of the Bill.

 

391.       This new item reflects the complexity in relation to the transitional arrangements for States and Territories into the new quality and safeguards arrangements.  As with the transition to the NDIS, the transition to the new quality and safeguards arrangements under the Commission will take place over some time.  The detail of how each State and Territory will transition will be subject to bilateral discussions and agreements to be entered into between the Commonwealth and each State and Territory.

 

392.       Item  81(2) provides that without limiting the transitional rules that can be made, the rules may make provision in relation to the following matters:

 

·       a State or Territory becoming a participating jurisdiction;

 

·       the transition of a person or entity from the registration arrangements under the Part 3 of Chapter 4 of the Act to the registration arrangements overseen by the Commission; and

 

·        the transition from quality and safeguards arrangements under State or Territory laws to the quality and safeguards arrangements established by the Bill as in force after the commencement of this item.

 

393.    In practice, for example, the transitional rules may deem providers who are already registered under Part 3 of Chapter 4 (having satisfied the quality and safeguards arrangements in the host jurisdiction) to be an NDIS registered provider under the new arrangements and, once they are registered provide for a period of time in which they have to comply with any new registration requirements, such as undergoing an audit. 

 

394.    The transitional rules may also be able to make rules for new providers, providers who are part way through an application for registration, or providers whose registration is subject to review under State and Territory quality and safeguards arrangements.  Part of the consideration for these providers will be determining the dates on which they can start to apply to be registered under the new arrangements.  The transitional rules may also, for example, specify staggered time periods for providers to transition to the new arrangements in a jurisdiction, depending on the number of providers and the type of nature of the supports provided.

 

395.    New item 80(3) allows the rules to provide that provisions of Schedule 1 are to be taken to be modified as set out in the rules and that those provisions will then have effect as if they were so modified, in order to support transition.  

 

396.       Rules made under this item will not directly amend the text of the Act, but rather the rules may modify the operation of provisions during the transition of providers in each State and Territory, where it is necessary to facilitate transition.  The modification of the operation of the provisions of the Act to a particular jurisdiction will be for a specified period of time, during transition only, and are not intended to modify the operation of the Act more generally. 

 

397.    Once an agreement has been entered into with a host jurisdiction to become a participating jurisdiction, this will form the basis of the transitional rules and commence the arrangements set out in this Schedule in that jurisdiction.  

SCHEDULE 2 - NATIONAL DISABILITY INSURANCE SCHEME ACT 2013 REVIEW

 

Outline

 

With the agreement of the Disability Reform Council in July 2015, the Minister for Social Services commissioned Ernst & Young to conduct an independent review of the National Disability Insurance Scheme Act 2013 (Cth) (the Act) (the Review).

 

It is a requirement under section 208 of the Act that such a review be undertaken two years after the commencement of the NDIS.  The purpose of the review was to assess the operation of the Act, as well as to consider whether or not any amendments can be made to better enable the Government to further the objects and principles of the Act.

 

Ernst and Young provided the Minister with a copy of its report in December 2015 and the Minister subsequently provided a copy of the report to the Ministerial Council and it was tabled in Parliament.

 

The Review found that there are opportunities to provide greater clarity to the legislative framework and provided 33 recommendations for consideration.  Recommendations included strengthening the Objects and Principles of the Act, providing a more detailed definition of Information, Linkages, and Capacity Building (ILC) within the Act and addressing technical inadequacies of the legislation.

 

The Minister asked the Ministerial Council to make recommendations in response to the report and obtain Council of Australian Government’s (COAG) response to the report.  Of the 33 recommendations, recommendations 10, 21, 27 were noted; recommendations 19 and 31 were agreed in principle; and the remainder of the recommendations were agreed.

 

Recommendations noted but not implemented

 

·       Recommendation 10 concerned the amendment of section 29 of the Act to include a ‘cooling off period’, during which a participant’s decision to revoke their participant status.  While COAG agreed that there was merit to implementing a ‘cooling off period’, a legislative amendment was not regarded as necessary, given the operational nature of the amendment.  Rather, COAG encouraged the Agency to consider incorporating the recommendation into guidelines which more appropriately deal with the operational circumstances and processes of revoking a participant’s status.

 

·       Recommendation 21 concerned the implementation of the Australian Law Reform Commission (ALRC) recommendations relating to the NDIS.  COAG considered that the principles suggested by the ALRC are already broadly established or reflected in the NDIS framework and considered that any amendments should occur at the same time as other similar legislation, such as the Social Security (Administration) Act 1999 , to ensure consistency of amendments relating to the ALRC recommendations.

 

·       Recommendation 27 concerned a recommendation to amend the Act to require the Principal Member of the IAC to also be a member of the NDIS Board.  COAG agreed with the review findings but noted that the ability to appoint the Principal Member of the IAC to the NDIS Board is not restricted by the Act, nor does the Act discourage the practice.

 

Recommendations agreed in principle but not implemented

 

·       Recommendation 19 was that the Act provide greater clarity on the purpose of Agency registration arrangements during the period leading up to full Scheme.  COAG agreed to review the NDIS (Registered Providers of Supports) Rules 2013 in relation to the recommendation noting the development of the new quality and safeguards arrangements which will be implemented through Schedule 1 of the Bill.

 

·       Recommendation 31 was to conduct a further review of the operation of the Act in 2-3 years.  While COAG agreed with the recommendation, it recommended the Disability Reform Council give consideration to an appropriate timeframe for the review in the context of transition to full scheme.  It also noted that amendments to the Act are not limited to review processes and that amendments can be undertaken with agreement of the Ministerial Council and Commonwealth Parliament at any time, as required.

 

Recommendations implemented by Schedule 2

 

Schedule 2 of this Bill amends the Act in response to the Review.  Amendments have been made to the principles of the Act to give greater recognition to the unique role of carers;  include people of lesbian, gay, bisexual, transgender and intersex (LGBTI) status; and clarify that the principles in section 17A of the Act that relate to participation by people with disability must guide the functions and powers of Agency.

 

The amendments also remove moderating language which qualifies the rights of people with disability and adds new principles to reflect the centrality of people with disability in the design of the NDIS and the importance of a diverse and sustainable market for supports in facilitating choice and control.

 

Amendments to Chapter 2 of the Act are also made to expand on the general supports that are able to be provided to people with disability.  In addition, the disability requirements for access to the NDIS are amended to clarify how they apply to people with chronic health conditions whose needs are most appropriately supported through mainstream service systems such as health.

 

Further amendments are made to the provisions guiding some administrative aspects of the NDIS, including providing greater clarity in relation to a participant’s right to have their plan reassessed and the Agency’s powers to gather information to ascertain whether a person may be eligible for support as a participant in the NDIS.

 

The amendments also strengthen the nominee provisions in the Act and clarify how a person with lived experience of disability can become a member of the Board of the Agency.  Finally, the debt recovery provisions of the Act have been amended to clarify that providers are able to be paid where they have provided support to a participant and the participant died before the provider was paid.

 

Recommendations agreed but not implemented

The following agreed recommendations have not been implemented for the reasons outlined in the table below:

 

Agreed recommendation

Reason

9. Remove section 24(1)(e) (unless this requirement is amended to support Recommendation 8).

The reviewers suggested the removal of section 24(1)(e) and COAG agreed that this paragraph could be removed.  However, deleting this paragraph may have unintended consequences due to the interlinking with paragraph 24(1)(b) (permanence) and new paragraph 24(1)(f); and the conflict it would create with the concept that a disability can be permanent but fluctuating.

11. Amend the legislative framework to align the access request process with bilateral agreements and the phasing rules made under section 32A.

This recommendation does not require amendments to the primary NDIS legislation.  The approach to addressing this recommendation was that it be undertaken through amendments of the NDIS (Facilitating the Preparation of Participant Plans) Rules 2013 as bilateral agreements for transition to full scheme were finalised and this recommendation has been addressed.

13. Amend the Supports for Participants Rules to provide further guidance on how value for money could be determined.

This recommendation does not require amendments to the Act.  This recommendation will be addressed through amendments to the NDIS (Supports for Participants) Rules 2013, which will seek to clarify guidance on determining value for money.

 

14. Amend the Supports for Participants Rules to provide greater guidance on the matters that may be used for the purposes of deciding whether a support will be, or is likely to be, effective and beneficial for a participant.

This recommendation does not require amendments to the Act.  This recommendation will be addressed through amendments to the NDIS (Supports for Participants) Rules 2013, which will seek to clarify guidance on whether a support is likely to be beneficial for a participant.

 

15. Add a statement to clause 3.4 of the Supports for Participants Rules to require the CEO to consider ‘the extent of any other caring responsibilities’.

This recommendation does not require amendments to the Act.  This recommendation will be addressed through amendments to the NDIS (Supports for Participants) Rules 2013, which will require the CEO to consider the extent of any other caring responsibilities on those providing informal care.

 

25. Amend section 118 to reflect the functions of the Agency in relation to its Information Linkages and Capacity (ILC) building framework.

The main function of the Agency in relation to ILC will be to provide relevant funding to organisations under section 14 of the Act.  No amendments are required to section 118 of the Act because subsections 118(g) and (h) would cover the Agency’s ILC functions.  

33. Consider what, if any, amendments to the legislative framework are required to support the operationalisation of the bilateral agreements between the Commonwealth and the States and Territories .

This recommendation does not require amendments to the primary NDIS legislation.  The approach to addressing this recommendation was that it be undertaken through amendments to the NDIS rules.

 

Part 1 - Amendments

 

Item - 1 Subsection 4(2)

 

Item - 2 Subsection 4(8)

 

398.    These items remove words ‘to the extent of their ability’ which have the effect of moderating the language in the general principles guiding actions under the Act in section 4.  Removing the moderating language from the principles reinforces the fact that people with disability have the same rights as other members of Australian society, regardless of the extent of their ability or capacity. This is consistent with recommendation 3 of the Review to amend relevant principles to remove moderating language (e.g. ‘to the extent of their ability’ and ‘to the full extent of their capacity’).

 

Item - 3 After subsection 4(9)

 

399.    This item amends the Act by inserting a new general principle into section 4, being that people with disability are central to the NDIS and should therefore be included in a co-design capacity.  The centrality of people with disability and their inclusion in the NDIS decision-making framework is integral to the NDIS.  This is consistent with recommendation 4 of the Review to add a new principle to section 4 that reflects the concepts of the centrality of people with disability and co-design.

 

Item - 4 Subsection 4(12)

 

Item - 5 After subsection 4(12)

 

400.    These items amend the general principles guiding actions under the Act in section 4.  Specifically, the amendments differentiate between the relationship between a person with a disability and their families and significant others, and the relationship between a person with a disability and their carers.  In doing so, the amendments recognise and respect the important and unique relationship between people with disability and their carers.  This amendment reflects the Carer Recognition Act 2010 (Cth).  This is consistent with recommendation 1 of the Review to amend principles that directly reference carers so that they align with the ‘recognise’ and ‘respect’ terminology of the Carers Recognition Act 2010 (Cth).

 

Item - 6 Subsection 4(15)

 

401.    This item amends the principle in subsection 4(15) of the Act to directly refer to a diverse and sustainable market and sector in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.  This is important to enable people with disability to exercise their right to choice and control.  This is consistent with recommendation 5 of the Review to add a new principle to section 4, reflecting the importance of a diverse and sustainable market that provides choice and control and high quality supports to people with disability.

 

Item - 7 Paragraph 5(d)

 

402.    This item amends paragraph 5(d) of the Act to reference lesbian, gay, bisexual, transgender and intersex status.  This amendment is consistent with other legislation such as the Sex Discrimination Act 1984 (Cth) and enhances the section’s purpose of recognising the intersections between disability and other forms of marginalisation.  This is consistent with recommendation 2 of the Review to amend section 5(d) to reference lesbian, gay, bisexual, transgender and intersex (LGBTI) status.

 

Item - 8 Section 8

 

403.    This item amends the simplified outline of the Act in section 8, to insert new information about the purpose of the NDIS in providing information in relation to disability and disability supports and services, to build capacity within the community in connection with people with disability consistent with the amendments made to section 14 of the Act.  This is consistent with recommendation 6 of the Review to provide greater definition on the Agency’s Information Linkages and Capacity building framework in the legislative framework.

 

Item - 9 Section 8

 

404.    This item amends the outline of the Act to update the name of the Agency to the National Disability Insurance Agency and remove reference to ‘Scheme Launch Transition’.  This is consistent with recommendation 29 of the Review to amend the Act to replace ‘National Disability Insurance Scheme Launch Transition Agency’ with ‘National Disability Insurance Agency’.

 

Item - 10 Section 9 (definition of Agency)

 

405.    This item amends section 9 of the Act to update the name of the National Disability Insurance Agency consistent with recommendation 29 of the Review.

 

Item - 11 Section 9

 

Item - 12 Section 9 (definition of review date)

 

406.    These items amend section 9 of the Act as a result of confusion arising from two types of review referred to under the Act - plan review and review of a decision.  What was formerly called a review of a participant’s plan is now called a reassessment of a participant’s plan. These amendments limit the term ‘review’ to review of decisions dealt with in Part 6 of Chapter 4 of the Act.  The amendments reflect a change in terminology only and do not change the rights of participants.  This is consistent with recommendation 23 of the Review to amend the legislative framework to limit the term ‘review’ to ‘review of decisions’.

 

Item - 13 Paragraph 14(a)

 

407.    This item inserts additional elements to the Agency’s power in section 14 of the Act to provide assistance in the form of funding for persons or entities.  These additions explicitly provide for the Agency to provide funding for services and supports for the purposes of:

 

·       Enabling persons or entities to provide information in relation to disability and disability supports and services.

 

·       Enabling persons or entities to build or provide assistance in building capacity within the community to make sure mainstream services or community organisations become more inclusive of people with disability.  This includes capacity building for communities to include people with disability in community activities through the provision of goods and services.

 

·       Enabling persons or entities to assist people with disability to realise their potential for physical, emotional and intellectual development.

 

·       Building the capacity of people with disability as well as their families and carers to participate in social and economic life

 

408.    These additions are necessary to support the implementation of the Agency’s Information, Linkages and Capacity Building (ILC) strategy, which reflects what were described as Tier 2 supports in the Productivity Commission’s inquiry report on disability care and support.  This is consistent with recommendation 6 of the Review to provide greater definition on the Agency’s Information Linkages and Capacity building framework in the legislative framework.

 

Item - 14 Before subsection 17A(1)

 

Item - 15 At the end of section17A

 

409.    These items insert new subsections into section 17A of the Act which outlines principles relating to the participation of people with disability.  The amendments clarify that the CEO must have regard to these principles when performing functions and exercising powers under Chapter 3 of the Act.  New subsection 17A(4) provides that the CEO is also required to be guided by the general principles in section 4 when undertaking actions under the Act.  This is consistent with recommendation 7 of the Review to clarify the intention of section 17A of the Act (relative to sections 4 and 5 of the Act).

 

Item - 16 At the end of subsection 24(1)

 

410.    This item inserts new paragraph 24(1)(f) into the list of requirements that the CEO must take into account in determining whether a person meets the disability requirements for access to the NDIS.  The new paragraph provides an additional consideration to meet the disability requirements which is reflected in subsection 34(1)(f) in considering reasonable and necessary funding that may be provided to a participant.  In order to meet the disability requirements in section 24 of the Act, the support that a person is likely to require must be most appropriately funded or provided through the NDIS and not more appropriately funded or provided through other mainstream general systems of service delivery or supports such as health or education. 

 

411.    This amendment has been made in response to recommendation 8 of the Review to provide clarity on how the disability requirements are intended to operate for people with chronic health conditions.  The review found that this could be achieved through amending the Act by reflecting a similar intent as per existing early intervention and reasonable and necessary provisions in the Act (sections 25(3) and 34(1)(f) respectively).

 

412.    The Review received feedback that people, especially people with chronic health conditions, were found to meet the disability requirements in section 24 of the Act, but they were not eligible to receive reasonable and necessary supports in their NDIS plans as a result of the requirement at paragraph 34(1)(f) of the Act (that the supports were most appropriately funded or provided through another universal service system).  The result was that people could become participants, but would not be eligible to receive supports and confusion resulted in relation to supports provided or funded through mainstream service systems.

 

Item - 17 After paragraph 27(c)

 

413.    This item inserts a new paragraph into section 27 of the Act, which gives the Minister a discretionary power to make NDIS rules prescribing criteria for assessing whether the support a person is likely to need for their lifetime is most appropriately funded or provided through the NDIS, or through other general systems of service delivery or support services.  This is consistent with recommendation 8 of the Review to amend the legislative framework to include principles on how the disability requirements are intended to operate for people with chronic health conditions.

 

Item - 18 Section 31

 

414.    This item amends section 31 to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 19 Paragraph 31(c)

 

Item - 20 After paragraph 31(c)

 

415.    These items amend the principles relating to participants’ plans in section 31 of the Act.  Specifically, the amendments differentiate between the relationship between a person with a disability and their families and significant others, and the relationship between a person with a disability and their carers.  In doing so, the amendments recognise and respect the important and unique relationship between people with disability and their carers.  This amendment reflects the Carer Recognition Act 2010 (Cth) and is consistent with recommendation 1 of the Review.

 

Item - 21 Paragraph 31(d)

 

416.    This item amends the Act by removing the words ‘where possible’ from paragraph 31(d).  The independent review of the operation of the Act found that these words were redundant and should be removed because the statement ‘so far as reasonably practicable’ at the start of section 31 already provides a degree of conditionality.  This is consistent with recommendation 12 of the Review to remove ‘where possible’ from section 31(d).

 

Item - 22 Paragraph 33(2)(c)

 

417.    This item amends paragraph 33(2)(c) of the Act to replace the word ‘review’ with ‘reassess’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 23 Subsection 36(3) (note)

 

418.    This item amends the note below subsection 36(3) of the Act to replace the word ‘reviewed’ with ‘reassessed’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 24 Subsection 37(2) (note)

 

419.    This item amends the note below subsection 37(2) of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 25 Paragraph 41(2)(c)

 

420.    This item amends paragraph 41(2)(c) of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 26 Division 4 of Part 2 of Chapter 3 (heading)

 

421.    This item amends the heading of Division 4 of Part 2 of Chapter 3 of the Act to replace the word ‘reviewing’ with ‘reassessing’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 27 Subsection 47(1) (note)

 

422.    This item amends the note below subsection 47(1) of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 28 Subsection 47(1) (note)

 

423.    This item amends the note below subsection 47(1) of the Act to replace the word ‘review’ with ‘reassess’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 29 Section 48 (heading)

 

424.    This item amends the heading of section 48 of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 30 Subsection 48(1)

 

425.    This item amends subsection 48(1) of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 31 Subsection 48(2)

 

426.    This item amends subsection 48(2) of the Act to replace the word ‘review’ with ‘reassessment’ wherever the word occurs as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions. This is consistent with recommendation 23 of the Review.

 

Item - 32 After subsection 48(2)

 

427.    This item inserts subsection 48(2A) into section 48 of the Act to give the Minister a discretionary power to make NDIS rules on matters the CEO is to have regard to when making a decision whether to conduct a reassessment of a plan.

 

428.    The CEO currently makes such decisions on the basis of the factors set out in the Agency’s operational guidelines.  This amendment will enable the rules to provide greater guidance on the rights of participants to request a re-assessment of their plan consistent with recommendation 16 of the Review to amend the legislative framework to provide greater guidance on the rights of participants to request a review of their plan.

 

Item - 33 Subsection 48(3)

 

429.    This item amends subsection 48(3) of the Act to replace the word ‘review’ with ‘reassessment’ wherever the word occurs as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 34 Subsection 48(4)

 

430.    This item amends subsection 48(4) of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions. This is consistent with recommendation 23 of the Review.

 

Item - 35 Subsection 48(5)

 

431.    This item amends subsection 48(5) to replace the word ‘review’ with ‘reassessment’ wherever the word occurs as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 36 Subsection 48(6)

 

432.    This item amends subsection 48(6) to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 37 Section 49 (heading)

 

433.    This item amends the heading of section 49 of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 38 Section 49

 

434.    This item amends section 49 of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 39 Section 50 (heading)

 

435.    This item amends the heading of section 50 of the Act to replace the word ‘reviewing’ with ‘reassessing’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 40 Subsection 50(1)

 

436.    This item amends subsection 50(1) of the Act to replace the word ‘reviewing’ with ‘reassessing’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 41 Paragraph 50(2)(a)

 

437.    This item amends paragraph 50(2)(a) of the Act to replace the word ‘reviewing’ with ‘reassessing’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 42 Subsection 50(3)

 

438.    Item 42 amends subsection 50(3) to replace the word ‘review’ with ‘reassess’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 43 Subsection 50(3) (note)

 

439.    This item amends the note below subsection 50(3) of the Act to replace the word ‘reviewed’ with ‘reassessed’ wherever the word occurs as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 44 Before paragraph 55(2)(a)

 

440.    This item amends the Act by inserting a new paragraph (aa) into section 55(2) that clarifies that the CEO has the power to require information or documents from persons who are not participants or prospective participants in order to determine whether a person with disability may be eligible for services or supports under the NDIS.  This benefits people with disability who are receiving services or supports under non-NDIS systems which are being, or will be, transitioned to the NDIS.  This is consistent with recommendation 17 of the Review to consider amending section 55 of the Act to broaden the powers of the CEO to obtain information to ensure the integrity of the NDIS.

 

Item - 45 Paragraph 55(2)(d)

 

441.    This item amends paragraph 55(2)(d) of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 46 Subsection 60(1)

 

442.    This item amends the Act by repealing subsection 60(1). The provision is superfluous as the Agency is permitted to collect information under the Privacy Act 1988 (Cth) and protected information would be protected because the Agency has collected it.  There are restrictions on the collection of certain information (personal information and sensitive information, both of which are subsets of protected information covered by the Act) in the Australian Privacy Principles (APP) (see Schedule 1 of the Privacy Act 1988 (Cth)).  That is, the Agency can collect personal information if such information is reasonably necessary for the Agency’s functions (see APP 3.1) and it can collect sensitive information (see the definition of this term in section 6 and the definition of health information in section 6FA of the Privacy Act) if the individual consents (and consent can be given on their behalf in the case of a guardian) and the information is reasonably necessary to the Agency’s functions (see APP 3.3).This supports recommendation 18 of the Review regarding the collection of information that would satisfy the Act definition of protected information.

 

Item - 47 Subsection 60(3)

 

443.    This item amends subsection 60(3) of the Act to reflect that subsection 60(1) has been repealed from the Act by item 46.

 

Item - 48 Section 61

 

444.    This item amends the Act by repealing section 61 which is an offence provision relating to section 60(1) of the Act that is repealed by item 46.  The repeal of section 61 is a consequence of the repeal of subsection 60(1) of the Act.

 

Item - 49 Section 66(1)

 

445.    This item amends subsection 66(1) of the Act to clarify that the CEO may disclose information in certain circumstances, despite the offence provision in section 64.  This is consistent with the fact that the CEO may disclose information in certain circumstances despite other offence provisions contained in sections 62 and 65 of the Act.  This is consistent with recommendation 18.

 

Item - 50 Paragraphs 78(1)(a) and (5)(a)

 

446.    This item amends paragraphs 78(1)(a) and 78(5)(a) of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.

 

Item - 51 Paragraph 79(1)(a)

 

447.    This item amends paragraph 79(1)(a) of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions. This is consistent with recommendation 23 of the Review.

 

Item - 52 After subsection 90(3)

 

448.    This item inserts a new subsection into section 90 of the Act to give the CEO the discretionary power to cancel a nominee’s appointment if the nominee stops being the participant’s guardian.  Under the Act, a nominee fulfils a different role to a child’s representative.  This is consistent with recommendation 22 of the Review to amend section 90 to allow the CEO to cancel or suspend a nominee appointment if the nominee ceases to be the guardian of the participant.

 

Item - 53 Paragraph 96(2)(b)

 

449.    This item amends paragraph 96(2)(b) of the Act to replace the word ‘review’ with ‘reassessment’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 54 Paragraph 99(f)

 

450.    This item amends paragraph 99(f) of the Act to replace the word ‘review’ with ‘reassess’ as part of amendments to limit the use of the word ‘review’ in the Act to review of decisions.  This is consistent with recommendation 23 of the Review.

 

Item - 55 Paragraph 104(3)(f)

 

451.    This item amends paragraph 104(3)(f) of the Act to extend the CEO’s consideration of the impact of a requirement to take action to obtain compensation on a participant’s or prospective participant’s family to include the impact on carers.  This amendment recognises that those who care for people with disability are not limited to family members.  This is consistent with recommendation 24 of the Review to amend section 104(3)(f) to reference carers.

 

Item - 56 Chapter 6 (heading)

 

Item 57 - Part 1 of Chapter 6 (heading)

 

452.    These items amend the headings of Chapter 6 and Part 1 of Chapter 6 to refer to the National Disability Insurance Agency, as part of several amendments to update the name of the Agency.  This is consistent with recommendation 29 of the Review.

 

Item 58 - Subsection 117(1)

 

453.    This item amends subsection 117(1) of the Act to formally update the name of the Agency from National Disability Insurance Scheme Launch Transition Agency to National Disability Insurance Agency, which reflects the more user-friendly name the Agency has been known as in the Australian community since 2013.  This amendment also clarifies that there is no change to other aspects of the Agency other than to its name.  This is consistent with recommendation 29 of the Review.

 

Item 59 - At the end of subsection 127(2)

 

454.    This item amends the Act by adding a note at the bottom of subsection 127(2) to assist the interpretation of that subsection.  The note clarifies that people with lived experience of disability, and people with disability, are eligible for membership of the Board of the Agency.  This is consistent with recommendation 26 of the Review to clarify the intent of subsection 127(2)(a) of the Act in terms of it encompassing ‘lived experience with disability’.

 

Item 60 - Paragraph 174(1)(b)

 

455.    This item amends paragraph 174(1)(b) of the Act to extend the timeframe for the provision of quarterly reports to the Ministerial Council to within six weeks after the end of the relevant quarter.  This is to reflect the fact that the current time frame hinders the Agency’s ability to provide the best possible report, given the amount of data that needs to be analysed.  This is consistent with recommendation 28 of the Review to consider the legislated timeframes related to the production of Quarterly Reports.

 

Item 61 - Subsection 174(5)

 

456.    This item amends the Act by repealing subsection 174(5), which is no longer applicable given that the first report has now been completed.

 

Item 62 - Paragraph 182(2)(c)

 

457.    This item amends paragraph 182(2)(c) of the Act to clarify that providers are entitled to be paid NDIS amounts where they have provided a support to a participant, even where the participant died after the provision of the support but before the provider was due to be paid for the provision of the support.  This is consistent with recommendation 30 of the Review to amend subsection 182(2)(c) of the Act to exclude from its application, payments relating to approved supports that have already been delivered.

 

Item 63 - Subsection 209(3)

 

458.    This item amends subsection 209(3) of the Act to clarify that, in making NDIS Rules, the Minister is required to have regard to the objects and principles in sections 3, 4 and 5 of the Act, as well as the financial sustainability of the NDIS.  This is consistent with recommendation 32 of the Review to amend subsection 209(3) of the Act to reference the objects and principles of the Act.

 

Part 2 - Application provisions

 

Item 64 - Application of amendments

 

459.    Subsection 64(1)(a) clarifies that the amendment to subsection 24(1) of the Act in item 16 of Schedule 2 do not apply to access requests made before the commencement of this Schedule.  It only applies to access requests made on or after the day the amendments commence.

 

460.    Item 64(1)(b) clarifies that the amendment to subsection 24(1) of the Act in item 16 of Schedule 2 does not apply to persons who became NDIS participants prior to the day the amendment commences.  Therefore, these persons are not required to meet the requirement in new paragraph 24(1)(f) of the Act and they cannot have their NDIS access revoked on the basis of not meeting the requirement in new paragraph 24(1)(f) of the Act.

 

461.    Item 64(2) clarifies that the amendment to section 90 of the Act in item 51 of Schedule 2 means that, from the date of commencement of the amendment, all nominees can have their appointments cancelled by the CEO on the basis that they no longer having guardianship of an NDIS participant, regardless of when the nominee was appointed.

 

462.    Item 64(3) clarifies that the amendment to paragraph 182(2)(c) of the Act in item 62 of Schedule 2 applies to all payments of NDIS amounts and not just those made after the commencement of the amendment.

 



REGULATION IMPACT STATEMENT



ABOUT THIS DOCUMENT

 

The purpose of this Decision Regulation Impact Statement (RIS) is to recommend preferred policy options for the regulatory components of the proposed NDIS Quality and Safeguarding Framework for consideration by the Disability Reform Council (DRC), namely:

 

•           complaints and serious incident handling;

 

•           worker screening;

 

•           registration and code of conduct; and

 

•           reduction and elimination of restrictive practices.

 

It has been prepared in accordance with the guidelines of the Council of Australian Governments (COAG) in the Best Practice Regulation Guide (2007).

 

A separate document setting out the full framework, including non-regulatory elements, has also been prepared for consideration by the DRC.

 

A range of regulatory and non-regulatory measures were canvassed in a Consultation Regulatory Impact Statement developed by Commonwealth, state and territory officials, and released early in 2015.  Consultations on the paper took place between February and April 2015, and included public meetings, meetings and workshops with specific stakeholder groups, submissions, online questionnaires and an online discussion forum. In addition, an impact assessment was commissioned to assess the costs and benefits of the proposed options.

 

The proposals presented here also take into account the recommendations of a number of current inquiries into the child protection and disability sectors. This includes the royal commission into institutional responses to child abuse; the Victorian ombudsman; the family and community development committee of the Victorian parliament; and the federal senate community affairs references committee inquiry into abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability.



Section 1: B ackground and Consultation

 

Productivity Commission Report

 

In August 2011, the Productivity Commission released a major report on Disability Care and Support . The Commission found that it was unreasonable and impracticable to expect people to self-insure against disability, and that the lack of adequate support for people with disability had adverse impacts on both individuals and the economy.  The Commission also found that the current disability support system is underfunded, unfair, fragmented, and inefficient, and gives people with a disability little choice and no certainty of access to appropriate supports.  It found that investment in early intervention and appropriate supports could reduce longer-term disability support and income support costs.

 

The Productivity Commission also noted that it would be appropriate to put in place a range of safeguarding mechanisms, including information for consumers to reduce transactions costs, complaint mechanisms, registration requirements, standards providers must meet, regulation of restrictive practices, and effective monitoring and oversight.  Because the NDIS would be a national system, the Productivity Commission argued that it is likely to be most efficient and effective if it is underpinned by a nationally consistent quality and safeguarding framework.

 

COAG Response

 

In response, on 19 August 2011 COAG agreed in principle on the need for major reform of disability services in Australia through a National Disability Insurance Scheme (NDIS).

 

In order to advance the implementation of the NDIS, on 13 April 2012, COAG agreed to a set of principles for the NDIS, and a consultation RIS was released on 7 December 2012.  A final RIS was not considered by the DRC as the decision to transition to full scheme had already been agreed in Heads of Agreement between Commonwealth and state and territory governments. The National Disability Insurance Scheme Act 2013 received royal assent on 28 March 2013.  The NDIS started in July 2013 as a trial in four locations.  Implementation of the full scheme will commence from 1 July 2016, noting that discussions are underway regarding the future of disability services provision in Western Australia

 

The operation of the NDIS

 

The NDIS adopts a no-fault, needs based insurance approach to supporting people. It is intended to ensure that people with disability have access to reasonable and necessary supports they need to live an ordinary life.

 

The scheme recognises the right of people with disability to exercise choice and control over the planning and delivery of their supports.  It is also designed to ensure that the chances of achieving the desired outcomes of its investment in terms of economic and social participation for people with disability are achieved.

 

The National Disability Insurance Agency (NDIA) administers the NDIS.  In particular, it is responsible (amongst other things) for:

·          assessing the eligibility of a person for the scheme;

·          agreeing with the participant what supports are ‘reasonable and necessary’.  NDIS funding cannot be used for any other purpose;

·          paying for reasonable and necessary supports available from the NDIS market;

·          assessing the risks individuals face in participating in the NDIS, and for ensuring adequate safeguards are in place to manage these; and

·          direct commissioning of supports where these would not otherwise be provided through the market.

 

The NDIA has a number of powers at its disposal to assist it in managing the NDIS market, including setting conditions through its terms of business agreements with suppliers, and power to set the prices of supports.

 

Under the NDIS, people with disability (or those acting for them) will:

·          set their objectives through plans;

·          have input into the process of deciding what supports and reasonable and necessary to achieve these objectives;

·          choose their own suppliers of supports;

·           negotiate with suppliers on how those supports will be delivered on a fee for service basis; and

·          where they choose and are approved to do so, manage the payments for supports.

 

Quality and Safeguarding

 

At the time the scheme was initially legislated it was recognised that development of nationally consistent standards and appropriate safeguards to support and protect people with disability was an essential foundation for the scheme.  As an interim measure it was agreed that state and territory regulatory systems would operate in conjunction with the NDIS while governments worked together on the design of a nationally consistent quality and safeguarding system, to be agreed by the DRC.

 

Current state and territory quality and safeguarding systems for the disability sector involve a mix of formal (legislation/regulation) and informal regulation (policy) exercised through management of funding agreements and contracts.  While there are differences between jurisdictions, there is a high degree of consistency in current approaches, which typically involves five main elements:

·          statutory complaints handling bodies;

·          serious incident reporting and oversight;

·          worker screening requirements (working with vulnerable person checks, excluded worker schemes, and/or requirements for police and referee checks);

·          controls on the use of restrictive practices, consistent with the National Strategy to reduce and eliminate restrictive practices; and

·          quality assurance requirements, consistent with the National Standards for Disability Services.

 

Competition Policy Review

 

The recent Harper Inquiry into Competition Policy also made a number of recommendations on human services delivery that were accepted by the Australian Government that are of relevance to this, including that in adopting choice and competition principles in the domain of human services, guiding  principles should include:

·          User choice should be placed at the heart of service delivery;

·          Governments should retain a stewardship function, separating the interests of policy (including funding), regulation and service delivery;

·          Governments commissioning human services should do so carefully, with a clear focus on outcomes;

·          A diversity of providers should be encouraged, while taking care not to crowd out community and volunteer services; and

  • Innovation in service provision should be stimulated, while ensuring minimum standards of quality and access in human services. [1]

 

The Harper Inquiry noted that the stewardship function should have some similarities with the ongoing stewardship role of government in other sectors, such as the electricity market.  Governments have established both an energy market operator to keep energy services delivered and a separate rule maker to change the way the energy market operates over time so that it continues to meet the long term interest of consumers.  In reforming the electricity market, governments recognised the role of a strong consumer protection framework in building confidence in the market; good stewardship is important in human services since human services can be just as essential to many Australians, especially those facing disadvantage.  The report noted that stewardship relates not just to governments’ direct role in human services but also to policies and regulations that bear indirectly on services.

 

DRC decisions

 

On 12 December 2014 DRC agreed to a consultation paper and approach to the development of a nationally consistent, risk-based quality and safeguards framework for the NDIS noting that the paper will form the consultation element of a COAG RIS.

 

 DRC consulted with interested parties during February to early May 2015 on a new quality and safeguarding framework that is consistent with the overall approach of the NDIS.

 

The consultation involved the following activities between February and May 2015:

·             16 public meetings in capital cities and regional locations in each state and territory;

·             7 provider meetings in locations around Australia;

·             6 workshops with specific stakeholder groups;

·             220 submissions;

·             585 questionnaire responses about particular quality and safeguarding measures; and

·             an online discussion forum.

 

Officials from different jurisdictions also engaged in targeted stakeholder consultations.

 

In addition, an impact analysis was commissioned from the NOUS Group, and included collecting data from two surveys with responses from 289 providers, administrative data from governments, publically available sources, and expert opinion.

 

On 13 November 2015 DRC agreed to the broad directions of an NDIS quality and safeguarding framework and to publish a report on the outcomes of the 2015 public and stakeholder consultation process (report available at dss.gov.au).

 

A RIS on the transition to full scheme was released on 10 March 2016, and noted that in the context of managing the transition to an NDIS, governments need to reconsider protections for people with disability and arrangements to ensure supports are of a high quality.  It pointed to four key reasons for this:

 

1.         Greater choice and control . Existing arrangements for quality and safeguarding are based on funding agreements between governments and providers of supports. These funding agreements set quality expectations for participants and providers and aim to protect people with disability from harm. The NDIS, in contrast, provides the funding to individual participants who then make choices about their supports. This creates the need for a new quality and safeguarding framework because it is the person with disability, not government, who is able to make judgements and decisions about the quality of providers. It also means a different mix of providers will enter the market, requiring a new approach to quality and safeguarding.

 

2.         Governments will no longer be purchasing specialist disability services . In the NDIS, the primary funding relationships will be between the person with disability and the provider of supports. This means the Commonwealth and states and territories will not continue to have funding agreements with providers. The current quality assurance arrangements, and some of the current safeguards, will therefore no longer apply.

 

3.         An opportunity exists to streamline requirements, reduce red tape and promote the market for supports. The development of a new quality and safeguarding framework is an opportunity to simplify the rules and make them the same across jurisdictions. This should facilitate the start-up of new national providers and offer greater choice to people with disability in the scheme.

 

4.         There is a greater need for National consistency . The NDIS is a national scheme and as such needs a consistent quality and safeguarding framework for all jurisdictions that it operates across.

 

On 4 March 2016 the DRC agreed in-principle to the key features of a new national quality and safeguards framework for the NDIS, noting it will be implemented for full scheme, noting that it expected to make a decision on the final framework and the respective roles of the Commonwealth, the states and territories and the NDIA by the end of May 2016.

 

DRC welcomed the Commonwealth’s proposal to establish new national functions for provider quality and registration, as well as national functions for handling complaints, including investigating serious incidents, and overseeing the use of restrictive practices.   DRC asked its officials to continue to work on finalising the framework and assessing the regulatory impacts, as well as doing more work on restrictive practices functions and worker screening.

 

S ection 2: statement of the problem

 

The need for a quality and safety framework for the NDIS is dictated by several factors, including:

 

•       the need to put in place measures to underpin the effective operation of the NDIS market to complement and operationalise the provisions already included in the NDIS legislation;

•       to ensure that participants in the NDIS market are able to exercise choice and control;

•       ensure that supports provided are of sufficient quality to achieve the participation and other objectives of the NDIS, and are delivered safely; and

•       to provide protections for vulnerable people from the risk of violence, abuse, neglect and exploitation and other harms in the course of support provision.

 

The effective operation of the NDIS market

 

The NDIS involves creating a market for disability supports.  This is a very significant change and brings with it new risks that need to be managed.  Under the NDIS the amount of funding provided by governments for disability services and equipment is expected to expand rapidly, from an estimated $14.9 billion in 2012 to $22 billion in 2019-20. Under the NDIS, the number of individuals accessing disability supports is expected to increase from around 320,000 in 2012 to 480,000 in 2019-20. In order to meet the demand for supports, the workforce in the sector will need to double by full roll out in 2019-20.

 

This expansion poses considerable risks, particularly for participants with complex needs or who live in regional and remote locations. Some workers in the sector have limited formal qualifications, and often operate in settings such as the participant's home, with limited supervision. This expansion will also take place in a context of competition from related sectors such as aged care.  There are also likely to be a large number of new entrants to the market, generating new quality, safeguarding and other risks, particularly in the early years of the scheme.

 

The transition process for any sector undergoing significant change can be challenging.  The experience of the home insulation scheme and reforms to vocational education, for example, suggest that a level of turbulence is likely to occur where a substantial amount of government funding is injected into a system using a market delivery approach.

 

These risks may be particularly high given that the market is likely to undergo significant restructuring as it grows, due to the shift to a fee for service system, privatisation, and the entry of a more diverse range of suppliers of supports, including increased number of for-profit organisations.

 

The NDIS legislation and associated regulation already makes provision for a number of measures to address these risks.  Currently, however the NDIA is reliant on state and territory regulatory bodies for assessment of provider quality, and responses to serious incidents.  Under full scheme this support will no longer be available, and so alternative arrangements need to be put in place to manage these processes.

 

It is important that these arrangements reflect best practice, are adapted to the new operating environment for the sector, and are as efficient and effective as possible. Currently, for example, providers operating across jurisdictions or sectors typically have to comply with several different sets of quality assurance requirements, each of which involve significant compliance costs.  Indeed a survey conducted for the analysis found that 75% of those who responded complied with more than one quality assurance framework. [2]   Similarly worker screening clearances, such as Working with Children Checks, Working with Vulnerable People Checks (or Police check requirements) are not portable moving between jurisdictions (or jobs in the case of police checks).   The level of duplication and red tape under the current system increases costs for consumers, workers, suppliers of supports and government, and constitutes a potential barrier to entry in some cases.

 

The NDIS Quality and Safeguarding Framework also needs to take into account the major injection of funding that will occur in the sector, that is likely to see many new organisations, including for profit suppliers and sole traders, entering the market; the expansion of existing providers; and innovation in services. This provides an opportunity to explore what mechanisms are needed for a market-based system, and ensure the regulatory framework reflects best practice principles.

 

User choice

 

Prior to the NDIS people with disability typically had little choice over what supports they could access and how those supports are delivered.  The Productivity Commission suggested that people with disability had little choice and no certainty of access to appropriate support, and so proposed that under the NDIS, there should be certainty of funding based on need, and genuine choice over how their needs were met, including choice of provider.  The Productivity Commission found strong evidence that where people with disability have a say in key decisions about their lives, outcomes are much better.  Under previous arrangements, participants were not empowered to exercise choice and control in many circumstances, which in turn means less personalised services being provided, less innovation and a lack of diversity for support.

 

Providing for user choice will not happen automatically as the Commission made clear:

 

However, realising the gains from increased consumer choice will neither be automatic, nor immediate.  While many participants in this inquiry are clearly well equipped to make good informed decisions about the support services they wish to use, to demand high quality services and to complain or switch providers when their expectations are not met (if given the opportunity to do so), this will not be the case for all.  As discussed above, the vulnerability of many people with a disability increases the risks of harm or poor outcomes, even when consumer choice is greatly enhanced under the NDIS.  As such, both service providers and consumers will require assistance in ensuring that a more market-based system can deliver good outcomes (as well preventing bad outcomes). [3]

 

Quality of services

 

Another key consideration in relation to the strength of the regulatory system is the risk that the supports provided under the NDIS are of such poor quality that participants do not achieve their life goals.  This in turn would lead to poor quality of life and outcomes for participants, and prolong their reliance on the scheme and reduce its long term sustainability.

 

The Productivity Commission pointed out in its report on Disability Care that while ensuring that suppliers consistently deliver an acceptable standard of quality is relatively straightforward for physical goods, such as aids and appliances, it is considerably more difficult to observe and enforce quality standards in the provision of disability services, due to their intangible and highly varied and personalised nature. [4]   The Commission noted that as welfare of people with disabilities is the primary motivation for industry oversight, consumer outcomes represent the most direct form of observing service quality, and should be a key feature of an NDIS quality assurance framework, together with the primary (and interrelated) regulatory objective of protecting people from significant harm.

 

To this end, a pilot study of an NDIS Outcomes Framework, using a self-assessment approach, was released in December 2015. [5]   Nonetheless, there is currently little or no data on the extent to which services currently make a difference for people with disability, including in terms of achieving outcomes, as most measurement is currently input based, and data on compliance against the National Standards for Disability Services is  not currently systematically collected or assessed.

 

In the absence of other measures, one possible indication of levels of poor service is complaints rates, which are currently estimated to be made by around 3% of support clients. [6]   This is extremely high by comparison with other sectors, where rates are typically in the order of less than five per thousand clients. [7]   Moreover, while this figure has been used as a proxy for quality deficits in the cost-benefit analysis, it should be treated with extreme caution, as it may be a significant underestimate as at least one jurisdiction is currently experiencing a complaint rate in the order of 10%. [8]   In addition, experience in other industries suggests that complaints about service quality are likely to increase significantly in the transition to a market environment, both because inexperienced and/or unscrupulous service providers enter the market, and consumers are empowered to demand services that make a difference to them.

 

Ensuring that the system encourages the provision of innovative, high quality supports is important to achieving the participation and other outcomes expected for the NDIS and safeguarding taxpayer funds.

 

Safety

 

There are some support types that will come under the NDIS that are intrinsically risky.  This includes supports where workers are providing hands-on personal care, and where a person is dependent on proper use of equipment that requires training (such as ventilators).  Similarly some services, such as peg feeding and administration of prescription drugs can have serious adverse effects when not carried out correctly.

 

While some services can only be delivered by persons subject to professional registration requirements, in many cases this is not the case.

 

There is currently no national data on deaths, serious injuries or other harm as a result of inadequate safety in disability services.  What data is available, however, suggests that there are significant issues that need to be addressed.  A recent analysis of a sample of deaths of people with disability in care in Queensland, for example, suggested that over half were preventable.  In NSW there were 239 reviewable deaths (of people in care) during 2012 and 2013, with a high proportion premature, and potentially preventable. [9]

 

Safety regulation for many supports is currently managed through funding agreements and associated quality assurance requirements that will no longer apply under the NDIS.  Accordingly, there is a need to put in place appropriate systems are in place to ensure that workers continue to be adequately trained and/or skilled to undertake particular tasks in order to avoid injury or other harm to participants.

                  Restrictive practices

Another key safety issue, with significant human rights implications, relates to the use of ‘restrictive practices’. A relatively small proportion of people with disability may need additional supports to reduce the risk of harm where some behaviours may pose a risk to themselves or others.  These are often described as challenging behaviours or behaviours of concern.  They are behaviours of such intensity, frequency or duration that the physical safety of the person or others is likely to be placed in serious jeopardy.  It also includes behaviour which is likely to seriously limit the use of, or result in, the person being denied access to services or ordinary community facilities.

 

Disability services often find it challenging to provide safe and therapeutic services for those with complex high support needs, as well as providing the safest possible work environment for staff.  In the absence of adequate support and oversight, this can lead to both a reluctance to provide supports to those with high support needs, and a failure to uphold the rights of people with disability where they are used.

 

In the past, restrictive practices were often used as first line of response to behaviours of concern.  Today the evidence is clear that such actions, taken routinely to control individuals’ behaviour, have been harmful, often exacerbating the behaviours they sought to control.  Restrictive practices can also have other undesired side-effects, as the box below illustrates.

 

Box 2.1 Use of restrictive practices

 

An estimated 10-15% of persons with disability will show ‘behaviours of concern’.  The majority of these are people with intellectual or cognitive disabilities or autism [10] .

 

Medication to control behaviour:  It is estimated that between 44-80% of this group will be administered a form of ‘chemical restraint’ in response to the behaviour [11] .  A recent UK study found that 71% of people with disability prescribed antipsychotics had never been diagnosed with a mental illness; that such medications were no better than placebo in managing behaviour; and that these medications had potentially severe side-effects including diabetes and obesity. [12]

 

Physical Restraint: No systematic data is currently collected on deaths or serious events as a result of use of restraint, but a Harvard study estimated that between 50 and 150 deaths were occurring in the US each year due to asphyxia and cardiac complications resulting from the use of restraints. [13]

 

Seclusion: Solitary confinement in a room or area which they cannot leave has been linked to a high rate of assaults on staff (one study found that 70% of staff using physical restraint and/or seclusion have been assaulted. [14]

 

Current best practice assumes that, in the main, restrictive practices are a response to behaviours that have the potential to cause harm to the individual or others, and can and should be eliminated through positive behaviour strategies.  In order to achieve this, all Governments committed to implementing the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector (National Framework) in 2014.  The National Framework establishes a national approach to reducing and eliminating the use of restrictive practices by providers across a range of disability service sector settings.  It sets out six core strategies to achieve this. Jurisdictions have agreed to implement these by 2018 for all disability service providers for which they or the NDIA have funding responsibility.  Despite this commitment, the rates at which such practices are used in Australia appears to be high compared to other countries such as the United Kingdom. [15]   It is estimated that around 20,000 people are currently subject to restrictive practices. [16]

 

Abuse, violence, neglect and exploitation

 

As the recent Senate Inquiry into Disability Abuse in Institutional settings has highlighted, there is currently no consistent and systematic collection of data on harm of people with disability by workers across Australia. [17]   It is also well established that there is significant under-reporting of abuse and other crimes against people with disability.  Nonetheless, there are strong indicators that suggest the need for action.

 

Rates of assault and abuse: People with disability experience significantly higher rates of harm than others. It has been estimated that children with disability are 3.4 times more likely to be mistreated than children without disability.  People with intellectual disability are three times more likely to be assaulted, ten times more likely to be sexually assaulted, and ten times more likely to be robbed than others.   Women with intellectual disability are 50-90 per cent more likely to be subjected to a sexual assault than women in the general population, and over 25 per cent of all sexual assault victims identified as having a disability.   Only 4% of offenders are strangers, and around 80% of those abused are likely to endure multiple episodes over long periods of time.

 

Box 2.2: Risk factors for abuse, harm, neglect and exploitation

 

Research shows that people with disability are at an increased risk of abuse, harm, exploitation and neglect due to a range of factors that may include:

. Dependence on others for care and support

. Difficulties with communication that may hamper the person’s ability to disclose experiences of abuse 

. Social isolation 

. Lack of access to support services

. Cultural devaluation of people with disability

. Disability service design that favours shared supported accommodation arrangements.

 

Australia’s top three commonly reported primary disabilities by people who are support users are:

. Intellectual (accounting for 30%)

. Psychiatric (accounting for 20%); and

. Physical (accounting for 17%)

 

Mistreatment comes in many forms and although the type of abuse perpetrated against people with disability varies according to particular circumstances and context, commonalities can be drawn from the literature. In general, people with disability are at increased risk of experiencing: 

. Physical violence

. Sexual assault

. Emotional and psychological abuse and neglect

 

Source: Australian Institute of Health and Welfare, People using both Disability Services and Home and Community Care in 2010-11.

 

Service context: The extent of violence, sexual assault, neglect and other abuse of people with disability in the context of the provision of supports, though, is extremely difficult to gauge. Studies into abuse of people with disability have, however, found a consistent pattern of abuse perpetrated by those who wield power within the relationship, especially where the person with disability is reliant on the assistance of the service provider for day-today support. [18]

 

The box below summarises the limited data that is available.

 

Box 2.3: Recognising crime and misconduct

 

Health Services Union Submission: Nearly half of members surveyed (46.79 per cent) reported that they had witnessed violence, abuse or neglect against people with a disability by other staff, either at their current workplace or when working for a previous employer. Furthermore, nearly 1 in 5 respondents (18.07 per cent) reported that while they had not personally witnessed abuse, they had been told about incidents by co-workers.

 

Victoria: Around 15% of all complaints made to the Victorian Disability Services Commissioner related to abuse, assault or neglect (Sub, Oct 2015).  Some 18% of complaints made to the Victorian Disability Services Commissioner in 2014-15 were workforce related, with half relating to staff behaviour and attitude, the other half relating to skills and knowledge (Annual Report).Victorian Community Visitors identified 287 cases of violence, neglect or abuse in 2013-14.

 

NSW: 100 allegations of employee to client reportable incidents (59% of all reportable incidents) in relation to people with disability living in supported group accommodation.  Of these 42 were allegations of physical assault, 28 were of sexual assault or misconduct, 25 related to alleged ill-treatment or neglect, and 5 related to fraud. (NSW  Ombudsman).

 

Table 1 below sets out an estimate of the rate of cases of serious harm that occur currently that forms a key input to the cost-benefit analysis of the regulatory options contained in this paper. [19]   The rates are based on provider reports of incidents to governments from five jurisdictions, adjusted to take account of under-reporting.  The rates are estimates only and should be treated as indicative only. Nonetheless, they lend weight to anecdotal and other evidence that the number of people affected by abuse from providers of supports, as well as by other residents, is significant.

 



Table 1: Estimated current rates of serious adverse incidents, 2014, Australia

 

Estimated rate of

serious adverse incidents

(% clients)

Physical Assault

2.5%

Sexual assault

0.5%

Neglect

1.25%

Theft

1.0%

 

These estimates do not take into account rates of other forms of abuse and exploitation, such as ongoing emotional and psychological abuse, which can have a major impact on victims.

 

The recent Senate Inquiry commented that:

 

‘The committee is very disturbed by the significant body of evidence it has received which details the cruel, inappropriate and, in many cases, unlawful treatment of Australians with disability. The committee is equally disturbed by the largely inadequate responses that these cases have received when reported to authorities and people in positions of responsibility. The committee is also concerned by the fact that many more cases remain unreported, partly as a result of inadequate responses to reporting. This is clearly unacceptable…. Taken as a whole, the evidence shows a systemic failure to protect people with disability…’ [20]

 

 

S ection 3: Objectives

 

T he proposed NDIS Quality and Safeguarding Framework

 

Objectives of the NDIS Quality and Safeguarding Framework

 

In a complex system such as the disability sector, where risks arise from both demand and supply side factors, no single regulatory measure can hope to address the range of problems identified or even any one element of them in isolation.  Some supports may be inherently risky, for example, or pose a higher risk, because they involve more direct contact between staff and participants or unsupervised contact (such as personal care in their home). People with disability themselves will have different levels of risk due to their capacity to make informed decisions as well as the level of involvement of their support networks, including carers, family and friends.

 

Accordingly, a suite of mutually supportive regulatory and non-regulatory measures, aimed at building system capacity and support systems (developmental); preventing harm and promoting service quality (preventative); and taking corrective action where necessary (corrective), has been developed for consideration. The proposed Framework proposes a risk-based and person-centred approach to quality and safeguarding, starting from the identification of risks and safeguards through individual planning and higher compliance requirements for staff and providers of supports considered to pose a higher risk.

 

The overall objectives of the NDIS Quality and Safeguarding Framework are to ensure NDIS funded supports:

•       uphold the rights of people with disability including by ensuring supports are high quality to live their lives and achieve their goals;

•       are focused on person-centered approaches to effectively achieve outcomes for people with disability in ways that support and reflect consumer preferences and expectations;

•       are safe and fit for purpose;

•       allow participants to live free from abuse, violence, neglect and exploitation, including by addressing systemic issues identified in recent reviews; and

•       enable effective monitoring and responses to emerging issues as the NDIS develops.

 

The expectation is that most investment in the system will occur at the developmental and preventative levels, in order to minimise the need for formal regulatory, and particularly corrective action.  Further details of the overarching framework, including the non-regulatory measures, are provided in a separate report prepared by officials for consideration by the DRC. A summary of the full Framework can be found at Appendix A.

 

Intermediate objectives for the regulatory measures

 

The proposed regulatory components of the framework. considered in this RIS relate to:

 

·          A: Complaints and Serious Incidents management;

·          B: Worker Screening;

·          C: Registration and Code of Conduct requirements; and

·          D: Use of Restrictive Practices.

 

For each component, a number of sub-options are explored.  Intermediate objectives have been developed for each of these elements, and are set out below.

 

                  A        Complaints and Serious Incident Management

 

In its Report on Consumer Policy in 2008, the Productivity Commission argued that over time, an effective consumer protection system can have a significant positive effect on the economy by:

 

•           making it easier for consumers to get problems fixed or compensation from the supplier (redress);

•           reducing the amount of effort they need to put into managing their choice of supports ('transactions costs');

•           reduced legal, time and other costs for suppliers in dealing with problems;

•           increased competition and innovation due to pressure from empowered consumers.

 

In addition the Harper Report on Competition Policy noted that successful structural change in human services provision is likely to require specific measures to support consumer participation and help manage the costs of complexity. [21]   In addition, a particular challenge in the disability context is the difficulty of identifying and acting to reduce consumer detriment due to under-reporting of crime and serious misconduct.  Complaints and serious incident reporting requirements are a common mechanism to support user choice and drive quality improvement by addressing sources of consumer detriment.

 

For this reason it envisaged that the current system of statutory complaints systems or their equivalent would continue to be necessary under the NDIS.  Accordingly, options for complaint handling and serious incident reporting requirements have been developed with the objectives of:

 

·          putting in place a complaints and serious incident system that will assist in managing the transition to, and underpin the effective operation of the NDIS market by ensuring that consumer rights can be enforced;

·          ensuring that participants in the NDIS market are able to exercise choice, including by ensuring complaints are responded to in a timely and effective way;

·          ensuring that supports provided are of high quality to achieve the participation and other objectives of the NDIS, by providing incentives for suppliers to address sources of consumer detriment through effective complaints systems;

·          operationalising the provisions already included in the NDIS legislation for serious incident reporting, including by providing a mechanism to identify and address systemic causes of harm by analysis of and action in relation to complaints and serious incidents; and

·          preventing violence, abuse, neglect, exploitation and other safety issues and minimise the impact on participants when they occur by

-        ensuring suppliers have effective internal governance and accountability mechanisms for serious incidents in place;

-        that serious incidents and complaints are managed effectively, and that the safety and wellbeing of participants is the highest priority when a serious incident occurs;

B        Worker Screening

A number of recent reports have pointed to the ability of individuals guilty of crimes or serious misconduct to operate within the system unchecked as a cause of abuse, neglect and exploitation of people with disability. [22]   While the primary responsibility for recruiting safe employees rests with employers, a number of options around worker screening have been developed which could supplement current requirements relating to children (including children with disability), as well as reinforce and assist employers in undertaking those responsibilities.

 

In that light, the objectives of the worker screening options are to reduce the occurrence of abuse, neglect and exploitation of people with disability by:

 

  • deterring individuals who pose an unacceptable risk of harm from seeking work in the sector;
  • reducing the potential for people who pose a risk to participants by ensuring that adequate and effective screening and background checks are undertaken on staff employed in the sector and that there is ongoing monitoring of their suitability to work in the sector;
  • removing those proven to pose a risk to participants from continued employment in the sector; and
  • sending a strong signal about the priority placed on the right of people with disability to be safe.

 



                  C        Registration and Code of Conduct

The Productivity Commission Report on Disability Care stated that in order to ensure the quality of supports and safety of participants, there need to be rules set by government that must be complied with by suppliers of supports as a necessary supplement to the direct discipline and reward that results from consumer choices. The recent Harper Inquiry also recommended licensing requirements to ensure minimum standards in human services delivery, noting that care needed to be taken to ensure that these did not raise artificial barriers to entry and inhibit innovation unduly. [23]

 

The National Standards for Disability Services provide an agreed basis for addressing supply-side risks under the NDIS, and a number of options to operationalise them, including a range of conditions for registration under the NDIS Act, as well as an NDIS Code of Conduct, have been developed.  The objectives of these measures are to:

 

·          put in place measures to underpin the effective operation of the NDIS market by operationalising the provisions in the NDIS Act for supplier registration and ensuring continuity of supply;

·          ensure individual rights are upheld

·          encourage consumers to exercise choice by providing confidence that services will meet minimum safety and quality standards;

·          ensuring the supports provided are of sufficient quality to meet NDIS objectives; and

·          safeguard vulnerable people from serious safety failures and other harms.

                  D        Reducing and eliminating Restrictive Practices

The National Framework for Reducing and Eliminating the Use of Restrictive Practices, agreed by Governments in March 2014, recognises that use of restrictive practices can be significantly reduced and in many cases, eliminated, consistent with Australia’s obligations under the UN Convention on the Rights of Persons with Disabilities.

 

Governments also agreed that as part of the NDIS, a quality assurance and safeguards system will be implemented and will include responsibilities for oversight of and reporting on the use of restrictive practices by services providing supports to participants. The Framework identifies a number of core strategies to reduce and eliminate use of restrictive practices, including overarching principles to govern the use of restrictive practices, development and regular review of individual positive behaviour support plans, competency standards for providers and their staff, and regular review and reporting on the use of restrictive practices in order to improve future practice.

 

A number of sub-options to implement these strategies have been developed in order to meet the objectives of:

 

·          ensuring restrictive practices are not used unnecessarily or excessively, and that their usage declines over time;

·          upholding the rights of people with disability, including by allowing cases of inappropriate use or abuse to be identified and responded to; and

·          promoting an adequate supply of supports to participants with high support needs.

Section 4: Statement of Options

 

 

The table below summarises the elements of the problem statement that each set of sub-options is intended to address.  As noted above, most of the proposed regulatory components address a number of the problem elements described in Sections 2 and 3 above.

 

Problem element/Sub-option category

A

Complaints and

serious incidents

 

B

Worker

Screening

C

Registration &

Code of Practice

D

Restrictive

Practices

Effective operation of the NDIS market

 

·           

 

·           

·           

User choice

 

·           

 

·           

·           

Quality

 

·           

 

·           

·           

Safety

 

·           

 

 

·           

Abuse, neglect, violence and exploitation

·           

·           

·           

·           

 

The table below summarises the sub-options for each component.  In each area, Option 1 is to maintain the current arrangements that apply in each jurisdiction currently (noting that this will generally require legislative amendments due to the shift of funding responsibility from state and territory governments to the NDIA).  Option 2 in each case represents a no regulation scenario (ie voluntary or self-regulatory approaches).  Options 3 to 5 (where applicable) consider alternative regulatory mechanisms (including co-regulation where applicable) and levels of requirement that could be adopted.

 

 

 

Option 1 (status quo)

Option 2

(no regulation)

Option 3

Option 4

Option 5

A Complaints and Serious Incidents

A1: Maintain current requirements in each jurisdiction

A2 No regulatory requirements

A3: Internal and external complaint handling requirements

A4: Statutory authority oversighting complaints and serious incidents

Na

 

B Worker screening

B1: Maintain current requirements

B2 Risk management by employers

B3: Require employers to conduct referee and police checks

B4: Require referee checks + independent risk-based screening ( Working with vulnerable people check)

B5: Barred person’s list

C Registration and Code of Conduct

C1: Maintain current requirements

C2: Voluntary Certification

C3: Additional certification

C4: Quality evaluation

C5: Quality Assurance

D  Use of Restrictive Practices

D1: Maintain current arrangements

D2:Registration requirements only

D3: Prohibit use of restrictive practices outside approved Positive behaviour support plans, and require providers to report use against them

na

na

 

The content of the options is set out in more detail below.

 

A         Complaints and Serious Incident Management

 

A number of sub-options around complaint and serious incident management have been developed in order to address the issues identified in the problem section, including promoting the effective operation of the NDIS market and user choice, as well as addressing cases of consumer detriment arising from poor service quality, safety failures and cases of abuse, neglect, violence and exploitation under the NDIS.

 

The options range from moving to a voluntary approach, maintaining the different arrangements currently in place in each jurisdiction (status quo), to options for a nationally consistent regulatory approach.  The options canvass both requirements for suppliers to have internal complaints and serious incident managements systems, as well as external dispute resolution and oversight mechanisms.

                  Option A1: Maintain current arrangements.

Currently arrangements vary between states and territories, but can include requirements in funding contracts that suppliers have effective internal complaints handling and serious incident recording mechanisms in place; complaints and serious incident reporting systems administered by some departments that fund disability suppliers; telephone hotlines for reporting abuse; and independent complaints-handling bodies such as Ombudsmen or Disability Commissioners.

                  Option A2: No regulation

Under this option, suppliers of supports would develop and operate their own complaints management and feedback systems. However, there would be no formal requirement to do so.  They would be encouraged and assisted to establish best practice internal complaints processes through industry associations, and for many this would be a sensible and commercially beneficial part of their business model. Suppliers could also be encouraged (but not required) to subscribe to an external disputes resolution service where an independent perspective would help to resolve concerns.

 

Participants would also have recourse to state or territory fair trading departments, the health complaints system, or professional registration bodies.

                  Option A3: Internal and external complaints handling requirements (co-regulation)

Under this option, suppliers seeking registration to provide supports under the NDIS would need to meet prescribed standards for their internal complaints systems, as well as subscribe to an external complaints resolution body.

                  Option A4: Independent statutory complaints function in conjunction with serious incident reporting

Under this option suppliers with higher risk scopes of operation would be required, as a condition of registration, to demonstrate that they have effective internal complaints and serious incident management systems in place. Where participants are unable to resolve an issue directly with their supplier of supports, they could go to the statutory complaints body for assistance. In addition, in order to ensure that serious cases, particularly where participants are unable or unwilling to complain are addressed appropriately, providers would be required to report serious incidents, including allegations of sexual assault or violence, and unauthorised use of restrictive practices, to the complaints body (in addition to police where a crime is alleged to have occurred).

 

The key functions of the complaints body would include complaints handling, referral, providing information, education and advice and supporting best practice. It would also have powers to act on concerns relating to systemic problems or risks with suppliers.  The c omplaints function would operate in conjunction with a serious incident reporting scheme broadly modelled on the current NSW Reportable Incidents Scheme, which includes reporting and oversight arrangements for allegations of abuse and other specified types of serious incidents.

 

Options not pursued: The Consultation RIS also included an option for the NDIA to handle complaints about suppliers. Most stakeholders felt that this would represent a conflict of interest given the role of the NDIA in directing participants to suppliers of supports, and contracting arrangements with suppliers for certain types of supports.  They also suggested that the NDIA should be focused on other priorities.  A number of stakeholders pointed to the need to separate the complaints function from the body responsible for funding, consistent with the principles recently endorsed by the Commonwealth Government in response to the Competition Policy Review (Harper Report).  Accordingly the sub-option placing the function in the NDIA was not pursued.

 

B         Worker Screening

 

A number of options in relation to worker screening have been developed in order to address the issues raised in the problem section in relation to the risk posed by workers to participant safety.  Screening of workers is one of a number of standard tools used in recruitment processes in deciding whether someone might pose a risk to participants. Worker screening systems are aimed at assessing whether someone poses an unacceptable risk to people with disability based on past history and/or identified risk factors.   In particular, a common perpetrator characteristic for disability abuse is previous offences, especially where a person with disability or other vulnerable person was a victim; misconduct, particularly within the disability sector, is another indicator of risk.  The human resources literature across a range of sectors, including adult disability services, strongly supports the use of worker screening, using as broad a range of information as possible as part of the recruitment process.

 

There are a variety of approaches that can be adopted in relation to who does the primary screening and what information is taken into account in the assessment.  All jurisdictions already require that those working with children with disabilities pass Working with Children Checks.

 

Options for screening of those working with adults with disability provide for an increasing range of types of information to be taken into account in the screening, ranging from the information that is typically available to an employer (or commercial screening agency), to a wider range of information that could only be considered by a government screening unit due to privacy considerations.  The sub-options consider maintenance of current jurisdiction based requirements (status quo), a no regulation option, and then alternative regulatory mechanisms aimed at excluding workers who pose a risk to people with disability from the sector.

                  Option B1: Maintain current arrangements

Under Option B1, suppliers of supports would be required to comply with worker screening requirements equivalent to those currently in place in each jurisdiction as a condition of registration.  This would mean that requirements would differ between jurisdictions, ranging from requirements to undertake referee and police checks of various types; provide information to and check excluded worker lists; or ensure workers have working with vulnerable person clearances.

                  Option B2: Risk management by employers (no regulation)

Under Option B2, suppliers of supports would be encouraged - rather than required - to have appropriate recruitment practices in place through industry based initiatives such as the NDIS ‘Zero Tolerance Program’.  Government would promote best practice approaches, but leave the decision about whether to use them to employers.  This option would represent a substantial reduction of regulation over current requirements.

                  Option B3: Require employers to conduct referee and/or national police checks

Option B3 would require employers to undertake referee checks and/or national police checks for potential employees for certain roles.  This requirement could be embedded in registration/accreditation standards and processes.

 

                  Option B4: Worker registration (working with vulnerable people checks for disability workers)

Option B4 is the development of a nationally consistent system of background checking (screening) for those working with people with disability who are in vulnerable situations.  Under this option employers would continue to be required to undertake referee checks, but there would also be:

 

  • an independent risk-based assessment of whether a potential employee poses a risk, by an expert government  screening unit;
  • assessment of a wider range of information about the person than an individual employer (or private sector screening agency) can access and ongoing monitoring to ensure any new information about the person is acted on;
  • registration (licensing) of the person linked with online verification of the person's current status; and
  • ongoing monitoring of people on the register against police records, employer reporting of misconduct and other available information.

                  Option B5: Barred persons list

An approach with more limited scope than Option 4 would be to create an excluded or barred persons list and require employers to:

  • notify the holder of the list of certain types of events involving an worker or volunteer where the worker has placed the participant at an unacceptable risk of harm; and
  • consult the excluded persons list prior to any appointment of an worker or engagement of a volunteer in a role where they will undertake defined activities.

 

The key difference between a 'working with check' (positive licensing) and a barred persons list (negative licensing) is that a working with children or vulnerable persons check assesses all of the available information about a person before they can be employed in order to assess whether they appear to pose a risk to clients, as well as responding to any new information that comes to light.  Barring, by contrast, occurs only after a particular adverse event (serious misconduct or a crime) has occurred and is reported.  Employers are required to verify that the person has not been barred.

 

C         Registration and Code of Conduct

 

A number of options have been developed in relation to registration requirements under the NDIS Act to address the issues identified in the problem statement.  In particular, the Productivity Commission Report on Disability Care argued that there need to be rules set by government that suppliers of supports would have to comply with in order for the market to operate effectively.  It said that these should be backed up by monitoring and action to address breaches, including possible punitive measures, as a necessary supplement to the ‘direct discipline and reward’ that results from consumer choices.

 

For this reason, the NDIS Act requires suppliers providing supports to participants (other than those who are self-managing) are required to be registered with the NDIA.  Those supplying supports to self-managing participants can opt not to seek registration.

 

Registration and Code of Conduct sub-options consider a range of ways of operationalising the National Standards for Disability Services under the NDIS in order to promote the safety and quality of supports.  A key issue is what type of requirements suppliers should be required to meet as a condition of registration.  The options set out below range from voluntary quality certification arrangements, verification of compliance with basic obligations, additional standards for higher risk suppliers, quality evaluation processes and a quality assurance scheme.

                  Option C1 - Maintain current requirements

Currently the NDIS provider registration rules require providers to meet specified requirements depending on the type of support they offer, as well as comply with individual state and territory quality assurance requirements.

 

                  Option C2 - Voluntary certification

Option C2 is essentially a self-regulation approach, and would be a significant reduction from what individuals and organisations wanting to provide disability services must currently do to meet the NDIS registration requirements.  Under this option, individuals and organisations or businesses who want to offer NDIS supports would confirm in their applications that they comply with any Commonwealth, state or territory legislation, including legislation that is relevant to their profession or business.

 

Providers who wished to obtain an independent certification that they meet the national disability service standards could elect to participate in an independent quality certification scheme.  This would be voluntary under this option.

                  Option C3 - Additional conditions

Under this option, support providers would be expected to meet a limited number of specified conditions, involving certification that they meet certain basic NDIS quality assurance standards.  The conditions required for registration would vary according to the type of supports the supplier offers. While there are a number of factors that determine the risk to any single individual, there are some types of supports where risk is always greater because of the circumstances in which the support is typically offered, for example, when supports are provided in a private or closed setting.  In general, most suppliers would be expected to have some form of complaints handling system, recruitment practices which ensure that participants are not exposed to workers who may cause harm and systems to protect the privacy of clients.

                  Option C4 - Mandated independent quality evaluation

Under this option some suppliers of supports would be required to participate in an independent evaluation of their organisation and the supports it provides, including how they contribute to meeting planned outcomes for participants. The focus would be on the participants’ experiences of the supports they receive. The assessment would be independent of both the NDIA and the organisation.

 

Continuing registration of a supplier would be subject to the supplier behaving safely and ethically.  In particular, suppliers would be required to comply with the NDIS Code of Conduct, which would also operate as a negative licensing scheme for unregistered suppliers (i.e. suppliers to self-managing participants who choose not to seek registration).

 

Quality evaluations would be undertaken by an independent evaluator who would assess against indicators of effectiveness through observation and in-depth interviews with individuals and families who use the supports. The evaluator would be looking for views on the culture of the supplier as it is reflected in support delivery, in particular whether participants are supported to realise their goals, enabled to make choices, treated with respect and supported to participate. Other indicators could be assessed by reviewing systems and records.

                  Option C5 - A quality assurance scheme.

Under this option, all providers, whether registered with the NDIA or not, will be required to comply with applicable Commonwealth, state and territory laws, the NDIS Code of Conduct, the NDIS complaints resolution and serious incident reporting requirements (Options A1-4 above).

 

Additional requirements would apply for providers that wish to:

•       deliver supports that involve direct staff-participant contact, lack supervision (such as personal care support, respite or supported residential services), or require specialist expertise; and/or

•       support participants who are at heightened risk of abuse and neglect (for example, people with cognitive disability, people who are non-verbal and people requiring behaviour support).

 

These requirements would be set out in a modular set of NDIS Practice Standards.  There would a core module for all providers, and a number of specific modules targeted at high risk supports.  Both the Code of Conduct and the Practice Standards would be aligned with the National Standards for Disability Services and would also reflect the National Standards for Mental Health Services (for providers specialising in mental health services).

 

All providers delivering higher-risk supports or supporting participants at heightened risk will be required to gain third party quality assurance certification against the core Practice Standards covering risk management, complaints systems, and effective governance.

 

There would also be provision to monitor difficult-to-replace supports with a view to managing continuity of supply issues.

 

D         R educing and Eliminating Restrictive Practices

 

A number of options have been developed to address the safety and human rights issues (particularly freedom from abuse, violence, neglect and exploitation) raised in the problem statement around restrictive practices. The canvass maintaining existing state and territory regulatory regimes; relying on registration requirements only, without a specific regulatory framework; and implementing a national regulatory framework to give effect to the National Framework on Reducing and Eliminating Restrictive Practices previously agreed by governments.

                  Option D1: Maintain current arrangements in place each jurisdiction.

As an interim measure, pending the development of the NDIS Quality and Safeguarding Framework, governments agreed to continue to implement laws and policies in their jurisdiction to give effect to the National Framework.  These arrangements could continue to operate under the NDIS in conjunction with registration requirements for providers whose clients have Positive behaviour support plans and/or may be subject to restrictive practices.

                  Option D2: Registration requirements only

Instead of legislation or policies, the National Framework could be given effect through registration requirements for providers of supports to participants who require Positive behaviour support plans.

 

Under this approach, the NDIA would assess which people with disability were at risk of being subjected to restrictive practices, and include preparation of a Positive behaviour support plan by a specialist practitioner in their NDIS package.  Behavioural support practitioners and providers charged with implementing them would be subject to requirements reflecting the high risk associated with the use of restrictive practices, consistent with whichever of the sub-options set out in C1-5 above is adopted.  Providers would be subject to normal audit arrangements for registration purposes, but there would be no other formal reporting or other requirements.

                  Option D3: Prohibit use of most restrictive practices

Under this option, in addition to registration requirements, a legislative framework would be put in place which would:

 

·          set out the key principles around the use of restrictive practices, requirements to undertake a positive behaviour support plan and to use the intervention is the least restrictive response available, that the risk posed by a particular intervention is in proportion to the risk of harm posed by the behaviour;

·          define the practices that are covered by the rules and explicitly prohibit certain practices;

·          require approval to be obtained for any restrictive practices included in Positive Behaviour Support Plans, consistent with relevant state and territory legislation;

·          require decision-makers to ensure that the wishes of affected individuals are understood and reflected in positive behaviour support plans;

 

Jurisdictions would continue to be responsible for approval processes around decisions to include a restrictive practice in positive behaviour support plan, but the overarching framework would ensure a professional independent assessment was undertaken by a positive behaviour support practitioner and a positive behaviour support plan was developed with a view to avoiding their use. Providers would be required to report monthly on the use of restrictive practices in Positive Behaviour Support Plans and a statutory oversight mechanism would include powers to investigate incidents and intervene where necessary.

 

Options not pursued for approval and reporting

 

The Consultation RIS canvassed a range of options aimed at reducing and eliminating the use of restrictive practices relating to the decision making process for obtaining approval, or other forms of approval to include a restrictive practice in a participant’s positive behaviour support plan, as well as frequency of reporting on the use of restrictive practices.

 

In the consultation process, however, many stakeholders said that, while accountability was very important, they thought that the emphasis in the consultation paper on who could make decisions was misplaced and instead the discussion should be about how to build a quality services system that makes the use of restrictive practices unnecessary.   In addition, given the highly complex interactions between Commonwealth, state and territory legislation and the coverage of this legislation in terms of other service sectors in jurisdictions in relation to approval arrangements, it became clear that developing a nationally consistent approach in this component of the proposals was unlikely to be achievable in the timeframe required for full scheme.

 

Accordingly, a more comprehensive and holistic approach, setting out key overarching principles was developed to take account of stakeholder views, reflected in the options described above, and the options set out in the Consultation paper were not pursued.

 

Section 5: Impact Analysis

 

A         C omplaints and Serious Incident Handling

 

                  Option A1: Maintain complaints handling requirements currently in place in each jurisdiction.

Most states and territories (the exceptions are Tasmania and Queensland) have statutory complaints handling bodies for disability service issues in place, as well as serious incident reporting systems which can supplement these by operating where NDIS participants may be unable to communicate a complaint for themselves, or where providers may need external assistance to handle allegations of abuse, neglect and exploitation. All states and territories except Tasmania also require providers to have an internal complaints handling process in place that is accessible to the people using their services.

 

The table below summarises current arrangements for disability service complaints (note that elements of systems are not mutually exclusive).

 

Table 5.1.1: Current complaints handling systems and requirements

Complaints systems and requirements

Jurisdiction

 

 

Internal complaints system requirements for service suppliers

NSW, Vic, Qld, WA, SA, Tas, NT

Contracted external complaints handling

Commonwealth

Departmental complaints review/assistance for participants

NSW, Vic, Qld, Tas, SA

Independent disability complaint handling body

NSW, Vic, SA, ACT, NT, WA

 

As the above table illustrates, current arrangements vary to some degree between states and territories.

 

In practice, however, the mix of formal statutory and informal regulation and oversight (primarily through management of funding agreements and contracts) means that differences between systems is likely to be more apparent than real in terms of their overall regulatory impact.  While Queensland does not have an independent statutory complaints body for example, the Queensland Disability Act 2006 does establish a formal complaints mechanism administered by the funding Department.

 

Similar issues apply to serious incident management systems and reporting.  In general, jurisdictions require serious incident reporting either through their ownership of providers, and/or as a requirement in funding agreements or contracts with disability services providers.  While each jurisdiction has different rules about what types of incidents need to be reported, the most onerous requirements typically applied to higher risk services such as accommodation services, many of which have been operated by Government owned providers (most of which are now in the process of being privatised).

 

With the exception of NSW, serious incidents are generally managed separately from complaints, within funding agencies, but in some cases (such as Victoria) with independent review of incidents with a view to identifying causes and prevention.

 

The NDIS business rules for transition also requires registered providers to report serious incidents to the NDIA.

 

Mechanics of maintaining the ‘status quo’

 

In general current complaints and serious incident reporting schemes are conditional on the supplier being a state or territory owned or funded service. [24]   However, these requirements will cease to have effect as supports are funded through the NDIS instead.   Accordingly, maintaining the ‘status quo’ under the NDIS would require all states and territories to pass (where schemes are managed through funding agreements and contracts) or amend legislation.

 

It would mean that:

·          jurisdictions with legislative complaints schemes would need to amend their legislation to ensure coverage of NDIS funded services (if they haven’t already done so);

·          those without legislative schemes (Tasmania) would need to put in place powers to deal with them; and

·          the NDIA terms of business (or NDIS Act) would need to be changed to require reporting of serious incidents to the relevant state or territory department.

 

System fragmentation

 

A series of recent reports have highlighted serious weaknesses in some current complaints management and serious incident management systems.  The Victorian Ombudsman, for example, found that although Victoria is generally regarded as having one of the strongest oversight regimes in Australia, current arrangements are “fragmented, complicated and confusing, even to those who work in the field”, making it difficult to work out who to make a complaint to. [25]    The recent Senate Inquiry into Institutional Abuse of people with disability documented similar issues across Australia. [26]

 

Continuation of multiple state-based systems that do not share information is likely to perpetuate this fragmentation, and make it more difficult to identify emerging systemic issues or issues relating to suppliers operating across jurisdictions that may require compliance responses.  Experience in the Home Insulation and Vocational Education sectors suggests that this could potentially impact both on sector safety as well as the financial integrity of the NDIS.

 

Efficiency and effectiveness

 

Several recent reports have pointed to lack of consistency between systems on who can complain, what they can complain about, lack of integration with serious incident management, lack of appropriate powers to respond and investigate complaints and incidents, lack of whistle-blower protections and more.  The reports have found that has had the effect of both discouraging reporting meaning cases of abuse go unreported, as well as reducing the efficacy of investigations.  As a result t he Senate Inquiry concluded that:

 

“It is clear from the range of evidence presented to this inquiry from multiple submitters in different jurisdictions across Australia, that no single state or territory has yet devised an acceptable system of disability service complaints reporting.” [27]

 

In addition, current complaints mechanisms have not been developed in the context of a market based system, and are likely to be inadequate to address the range of issues that might arise under the NDIS.  The use of a Code of Conduct (see Options C5 below) as the primary basis for assessment of complaints would help educate both providers and participants on reasonable expectations of performance, and could drive a greater focus on the more important types of complaints.

 

A series of reports have suggested that there is scope to streamline and simplify serious incident reporting requirements, and make more effective use of serious incident reports, by managing the function inconjunction with complaints in order to avoid fragmentation of the system, duplication and overlap, and ensure that appropriate action is taken in response to reports. [28]

 

In addition, maintenance of current arrangements could lead to the imposition of differential costs on suppliers of supports in the context of a national system.  Because the current system relies on a mix of informal regulation (through management of funding agreements) and formal regulation, it is not possible to quantify the extent of the differential that might result if these arrangements were translated to the NDIS.  Nonetheless, the differences could inhibit suppliers from operating across jurisdictions or lead to disincentives for new entrants in some jurisdictions.  In many cases it would also require suppliers to meet requirements that may be unnecessary to a market environment (red tape), such as reporting on internal complaints.

 

For these reasons maintenance of current systems is not considered tenable under the NDIS.

                  Option A2: No regulatory requirements

This option would represent a substantial reduction in the regulation of the sector in all jurisdictions, as well as in the level of investment in disability complaint resolution over the current system.  It would mean that:

·          suppliers would no longer need to demonstrate that they have adequate complaint management and serious incident reporting systems in place;

·          suppliers would no longer be able to seek assistance on responding to serious incidents, or be required to report serious incidents externally;

·          consumers would no longer be able to seek the assistance of Departmental officers or disability-specific complaints bodies in resolving issues;

·          disability specific complaints bodies (which currently exist in all jurisdictions, except Queensland and Tasmania) would be abolished.

 

As a result, suppliers would not face any compliance costs under this option.

 

Effectiveness

 

Currently some disability related services, for example mainstream services purchased directly by the person with disability, are covered by the Australian Consumer Guarantees, and this coverage is likely to expand significantly under the NDIS.  The level of assistance that can be provided to consumers by the Australian Competition and Consumer Commission and state and territory consumer protection bodies, such as fair trading offices, however, varies.

 

In most cases the emphasis is on providing people with information about their rights, including how to make and resolve a complaint.  They may also be able to assist consumers in trying to negotiate a solution with traders (conciliation) depending on resources and priorities but if this is not successful, the consumer will normally need to pursue their claim themselves.  This normally means going through a small claims court, tribunal or Magistrates court.  The processes for pursuing claims under $10,000 in value are usually informal (lawyers usually cannot participate).  Consumers are normally required to pay an application fee, though, and costs are typically range from around $50 to $700 depending on the size of the claim.

 

The need to go to a court or tribunal, and pay a fee, can be a significant disincentive for consumers, and would represent a particular challenge for many people with disability.  A reluctance or inability to complain or pursue matters is likely to lead to less feedback to providers and the potential to fail to take action to prevent future problems, leading to significant increase in serious adverse incidents as well as the persistence of less serious quality issues.

 

In recognition of these issues, Governments have typically put in place additional protections for consumers when moving to more market oriented delivery arrangements, including complaints resolution bodies.

 

In addition, Fair Trading Offices do not have appropriate powers or jurisdiction to invest many of the issues currently handled by disability complaints bodies such as allegations of violence, abuse, neglect or exploitation.  While some matters need to be referred directly to police, difficulties in establishing the levels of evidence required for a formal prosecution (for example where witnesses are deemed unable to give evidence) could mean that a large number of cases are unable to be pursued. [29]

 

Distribution effects

 

Participants: This option is likely to lead to a substantial increase in consumer detriment because consumers may be reluctant or unable to complain, allowing inappropriate behaviour to escalate, or allowing perpetrators to continue to offend so that they are detected much later than would occur under a more robust complaints system.  This could be compounded by suppliers attempting to cover up problems to protect their reputation.  In addition, there will be less scope for regulators to identify emerging problems at the supplier and systemic level, and take appropriate preventative action.

 

Impact on suppliers of supports: Under this option suppliers would no longer have to meet specified standards in relation to their internal complaints mechanism, or report on these to funding or oversight bodies.   Accordingly, the option would involve very low compliance costs for internal systems, as suppliers of supports would have full flexibility as to the complaints system they implemented.

 

For suppliers, effective internal complaints systems that encourage feedback, advice and complaints can be a source of value, driving innovation and quality improvement:  A high level of complaints can mean that the supplier encourages feedback, and acts on it, in turn encouraging more feedback:

 

•           They can mean that systemic problems are identified and acted on early, reducing adverse impacts on clients.  It can also lead to cost reductions and service quality improvement - even small productivity gains are cumulative and can be large in terms of the overall impact on the system

•           Customers who complain tend to be more satisfied than customers who are unhappy with the service but don't speak up

•           There is strong evidence that complaints well-handled can turn disgruntled customers into very loyal, highly satisfied ones.  And word of mouth recommendations can then lead to additional business.

 

However, numerous studies attest that market failure typically leads to underinvestment in internal complaints functions, particularly where the cost of changing providers is high or there is a lack of competition. [30]   In addition,  suppliers concerned with making only a short-term profit and then exiting the market, as well as those with considerable market power (especially, for example, in regional and remote areas), may significantly under-invest in complaints resolution systems.  This could have adverse impacts on productivity for the system as a whole, as suppliers lack the feedback necessary to make service improvements.

 

Experience in other sectors and overseas suggests that, in the absence of an effective external complaints resolution mechanism, suppliers’ overall costs could actually increase significantly.  Where consumers do pursue their cases, they will have to do so through mechanisms with higher costs, such as tribunals and the courts, so that suppliers may incur both legal and time costs.  Alternatively consumers may choose to make their case through social media and other mechanisms, exposing suppliers to the potential for reputational damage and lost custom. [31]

 

The lack of quick resolution and redress avenues could undermine consumer confidence and make participants reluctant to try new entrants to the market.  This could undermine competition, making it difficult for new entrants to gain market share.

 

Impact on government: This option could generate a substantial additional workload, and hence resource pressures, for state and territory fair trading offices (assuming they had or were given jurisdiction), even before any additional issues generated by the shift to a market system are taken into account.  It is also likely to lead to increased pressure for funding of advocacy support.

 

In addition, in the absence of a statutory function it can be expected that:

 

•           consumers (families and advocates) will have increased time and other costs in pursuing complaints;

•           Offices of Fair Trading/ACCC will face a new and large workload, since the shift to a market based system will bring many disability services under Australian Consumer Law (ACL) for the first time;

•           more civil cases may go the courts as private actions (small claims/magistrates for ACL, plus cases outside the purview of consumer law); and

•           some consumer issues that impact on the scheme may have to be pursued by the NDIA itself (eg overcharging, services not delivered) to protect scheme sustainability.

 

Consultation

 

There was almost no support for this option in the Consultation process.  The overwhelming majority of stakeholders felt that suppliers’ internal complaints systems would, in isolation, be inadequate to safeguard the rights of people with disability because there is often a severe power imbalance between suppliers and participants.  This is likely to result in some suppliers of supports having insufficient incentives to resolve complaints satisfactorily. Stakeholders also noted that people are often reluctant to complain because of fear of retribution or negative past experiences with internal complaints processes.  These concerns are backed up by numerous case studies in the various recent inquiries into the sector.

 

Overall impact

 

This option could seriously jeopardise consumer trust in the shift to a market based system and is not considered tenable.

                  Option A3: Internal and external complaints handling requirements

Under this option, suppliers could be required to comply with the Australian Standard on Complaints Handling or equivalent requirements. [32]   This could involve:

 

  • informing participants of their right to complain, and to lodge a complaint, including who to appeal to if they are not satisfied with the response
  • providing assistance to customers to formulate, lodge and progress a complaint
  • specifying the response times for individual steps in its complaints-handling process.
  • responding to complaints within a specific timeframe
  • analysing complaints regularly to identify recurring problems.

 

In addition, there would be an independent complaint review process under this option. This could take the form of an industry-initiated complaints body, such as the Telecommunications Industry Ombudsman. The telecommunications scheme is run by a private, industry-backed company, but supported by legislation that requires all telecommunications suppliers to be members of the scheme, and gives the Ombudsman powers to collect any documents or information necessary, and make binding decisions on claims up to $50,000, and recommendations to the statutory regulator on larger ones. [33]

 

Effectiveness

 

While this option could potentially provide an effective dispute resolution mechanism for service quality related matters, which is the main focus of most of the current complaint bodies, it would not be a suitable mechanism for oversighting the handling of more serious adverse incidents such as allegations of abuse due to the privacy and other legal issues these can raise, and the types of powers necessary to address them.  The lack of an adequate focus on responses to allegations of sexual assault and violence in current complaints bodies has been the subject of considerable criticism by recent reviews, including the Final Report of the Victoria Parliament’s Inquiry into Disability Services. [34]   This option would also fail to address criticisms of fragmentation in the disability oversight system.

 

Compliance costs

 

Obtaining the appropriate certification and audit against the requirements would be a part of the requirements for registration process, and so is included in the costs for registration options (Option C1-5 below).

 

The objective would be to ensure that most complaints are resolved by the supplier and the complainant themselves, without external aid, by requiring suppliers to have best practice internal systems in place to receive and respond to feedback. The external complaints body could operate on a fee per complaint received basis (as the Telecommunications Ombudsman does), making its costs potentially avoidable if the matter is effectively managed by the supplier.

 

Disability related complaints handling is likely to be more expensive to manage than other industries as many complainants will need extra help to access systems and be supported through any external process.  Nonetheless, an indication of the likely size of costs can be gained from the Telecommunications Industry Scheme, where fees range from $44 to $3,100 per complaint (as at July 2015) depending on the level of complexity of the complaint, payable by the supplier. This would represent a new cost to suppliers, since most jurisdictions currently have statutory complaints functions that operate at no cost to suppliers or complainants.

 

Distribution analysis

 

Impact on Participants: The Telecommunications model has the advantage of providing a free and quick resolution service for typical customer complaints in a market environment, and has been successful in identifying and suggesting ways of tackling systemic service issues, leading to a reduction in complaint numbers over time. [35]   This type of approach would not, however, adequately address the serious concerns raised by people with disability in the series of recent inquiries on the handling of serious incidents such as cases of abuse and violence.

 

Impact on Suppliers of supports: This option would require suppliers to have internal complaints systems in place.  As this is a requirement under current arrangements this element would not increase compliance costs over the status quo. New entrants would need to invest in appropriate systems, but the cost would be low, and would almost certainly be more than offset by the value of the customer intelligence received from the feedback process.

 

Option A3 would also involve establishing an external disputes resolution mechanism, presumably on a cost recovery basis.  This could involve a fee per complaint and/or some upfront contribution paid by suppliers. While the fee would constitute a barrier to entry, it would likely be very low.  Moreover if the fee is only incurred if a complaint is lodged (as under the Telecommunications scheme at present), it would provide an incentive for suppliers to resolve complaints effectively with their clients, and so could be pro-competitive in impact.  Suppliers would, however, still be exposed to the risk of reputational damage arising from inappropriate handling and investigation of more serious complaints.

 

Consultation

 

As for Option A2, this option received little support. Stakeholders did not feel that an industry body would have sufficient credibility in the current environment. Stakeholders almost universally felt that an organisation with stronger powers than typical industry schemes was needed to address and oversight the handling of complaints about abuse, violence, exploitation and neglect in particular.  Stakeholders were also concerned that creation of a multi-level structure, for example with an oversight body supervising an industry-based scheme, would perpetuate the fragmentation of regulation in the sector, and lead to complaints 'falling through the cracks'.

 

Overall assessment

 

This option would not provide an adequate mechanism for addressing serious allegations of adverse incidents, and is unlikely to achieve the other objectives of a complaints system in the NDIS environment.

                  Option A4: Independent statutory complaints function (in conjunction with serious incident reporting).

Efficiency

 

Complaints and serious incidents are closely linked.  While the assessment processes for complaints and serious incidents will differ, the content of the two sources of information about participants and their suppliers are likely to overlap substantially.  In particular, serious incidents are likely to give rise to formal complaints, particularly where they are handled badly.  Conversely, serious incident reports may uncover an incident where a participant was not able to make a complaint or take action themselves, for example because of barriers to communication, isolation and/or dependence on the person who may have abused them.

 

Accordingly, this option would promote the adoption of an integrated approach to managing sources of consumer detriment, broadly following the NSW model where the Ombudsman has responsibility both for managing complaints and serious incidents, but adapted as necessary to reflect the NDIS environment.

 

Box: NSW Ombudsman Act Part 3C

 

NSW Reportable Incidents Scheme was introduced in 2014.  It was designed to address common criticisms of serious incident oversight processes repeated in a stream of recent reports, including during the consultation process for the NSW Disability Inclusion Act 2014 and is generally regarded as best practice.

 

In NSW, in addition to the role in monitoring serious incidents played by the Department of Families and Community, there is a disability reportable incident legislation which allows the NSW Ombudsman to:

•           receive and assess notifications concerning reportable allegations or convictions;

•           scrutinise provider systems for preventing reportable incidents, and for handling and responding to allegations of reportable incidents;

•           monitor and oversight provider investigations of reportable incidents

•           respond to complaints about inappropriate handling of any reportable allegation or conviction;

•           conduct direct investigations concerning reportable allegations or convictions, or any inappropriate handling of, or response to, a reportable incident or conviction;

•           conduct audits and education and training activities to improve the understanding of, and responses to, reportable incidents, and

•           report on trends and issues in connection with reportable incident matters.

 

Effectiveness

 

Responsibility for resolving complaints should rest primarily with the supplier and the participant.  It is important that both parties are aware of their rights and obligations, and that the system encourages the parties to resolve matters between themselves where possible.   However, power imbalances and other factors can create significant barriers to resolution. As such, there will need to be capacity for people to get advice and support from others, including informal and formal advocates.  An independent statutory complaints function was identified by an overwhelming majority of stakeholders as the best way of overcoming barriers to resolution of complaints.

 

Abuse, violence and neglect: Where complaints or allegation of abuse, neglect, violence and exploitation, or other extremely serious matters such as unauthorised use of restrictive practices arise, this option would provide capacity for a quick and effective response that is well co-ordinated with other safeguards in the system.

 

Other sources of consumer detriment: In the consultation process some people with disability and advocates were concerned that some people would feel too intimidated or fearful to raise even relatively minor issues with their suppliers of supports.  An independent complaints commissioner could play a key role in providing education and support for participants to understand their rights, and help them negotiate with suppliers of supports.  Public reporting on complaints could also help increase the confidence of participants in the system, as well as provide information for them to take into account when choosing suppliers.

 

Suppliers of supports:  External scrutiny of complaints unable to be resolved by suppliers, as well as serious incidents, is likely to lead to a more optimal investment in management of these processes.  The costs involved in establishing appropriate systems are likely to be minimal and so should not constitute a barrier to entry as this option does not represent a significant change from current requirements overall [1], but could reduce compliance costs to some degree through the adoption of an approach more targeted to risk.

 

As at present, providers would need to establish effective internal systems.  The requirements would be consistent with their size and level of risk, assessed as part of the registration process (see Options C1-5), and the effectiveness of their internal systems would be judged through quality assurance audits (in conjunction with any other registration requirements). In some cases this would lead to a reduction in costs, as providers will not need to undergo multiple certifications where they operate across jurisdictions or sectors.

 

While providers could incur time costs associated with complaints lodged with the complaints body, this would provide an appropriate incentive to manage complaints effectively internally, in order to prevent them being escalated.

 

There is also scope to reduce the compliance burden on employers by making reporting systems faster and easier to use by adopting a 'report once/use many times' model for serious incident reporting, and utilising a more efficient reporting system (such as simple online reporting application along the lines used by Worksafe Australia) rather than current outdated systems highlighted by recent inquiries.  Accordingly, to minimise the regulatory burden of reporting, the plan is for an online reporting system to be developed, building on the work that NSW has already undertaken on this. The system would, subject to compliance with privacy laws, be accessible at different levels to different stakeholders.

 

Government: Under this option existing jurisdiction disability specific complaints bodies would be replaced by a single national complaints function, potentially generating efficiencies.  In addition, this option has benefits for Government in dealing with complaints earlier, reducing the flow-on costs to courts and other complaints handling bodies such as the ACCC.

 

The NSW experience suggests that formal legislative requirements for reporting of serious incidents is likely to lead to a significant increase in the number of serious incidents reported. [36] Early experience of the New South Wales reportable incident system, for example, has found that reporting increased substantially over past levels, and identified ten times more cases of abuse, violence and neglect have been identified through serious incident reporting than through the complaints system. [37] This suggests that there is considerable scope to improve the handling of incidents, and prevent them from occurring by identifying root causes.   As mishandled serious incidents  - including failure to report crimes, to take appropriate action to ameliorate the effect of the incident on the victim, or to ensure injuries are properly treated - can be a source of serious detriment to participants, as well as increase the risk of the type of incident recurring, any additional costs (which are expected to be negligible see below) due to increased compliance are likely to be easily be offset by the benefits of improved management of serious incidents and early compliance action.

 

Compliance costs

 

This option does not represent a significant change from current requirements overall, but could reduce compliance costs to some degree through the adoption of an approach more targeted to risk.

 

As at present, providers would need to establish effective internal systems.  The requirements would be consistent with their size and level of risk, assessed as part of the registration process (see Options C1-5), and the effectiveness of their internal systems would be judged through quality assurance audits (in conjunction with any other registration requirements). In some cases this would lead to a reduction in costs, as providers will not need to undergo multiple certifications where they operate across jurisdictions or sectors.

 

While providers could incur time costs associated with complaints lodged with the complaints body, this would provide an appropriate incentive to manage complaints effectively internally, in order to prevent them being escalated.

 

There is also scope to reduce the compliance burden on employers by making reporting systems faster and easier to use by adopting a 'report once/use many times' model for serious incident reporting, and utilising a more efficient reporting system (such as simple online reporting application along the lines used by Worksafe Australia) rather than current outdated systems highlighted by recent inquiries.  Accordingly, to minimise the regulatory burden of reporting, the plan is for an online reporting system to be developed, building on the work that NSW has already undertaken on this. The system would, subject to compliance with privacy laws, be accessible at different levels to different stakeholders.

 

Consultation

 

The majority of stakeholders identified a need for an independent complaints body.  Most jurisdictions already have independent statutory complaints bodies in place, and with the development of a quasi-market, the need for effective dispute resolution mechanisms is likely to become more acute. Independence, it was suggested, would give people confidence in the system, provide assurance of unbiased assessment, and support transparency and accountability.  Many stakeholders suggested that an independent body was best placed to help protect whistle-blowers.

 

In the Consultation process the reasons given for this view included that suppliers’ internal complaints systems are inadequate because there is a power imbalance between suppliers and people with disability, and people are often reluctant to complain because of fear of retribution or negative past experiences with suppliers’ internal complaints processes.  These concerns are backed up by numerous case studies in the various recent inquiries into the sector.

 

There was also wide agreement on the functions it should include.  A key theme, however, was the importance of serious incident reporting as a component of the oversight system.  A number of Submissions to the Consultation process, as well as recent reports have raised concerns about the capacity of some providers to recognise, respond to and effectively manage serious incidents, including abuse, neglect and unexplained injuries. [38]   The NSW Ombudsman, for example, found that there was a need to provide more education, training, guidance materials and ongoing monitoring for providers, for example on the handling of client-to-client assaults and decisions on reporting to police.  Similar issues have been documented by the Victorian Ombudsman, who also noted that there appeared to be substantial under-reporting of incidents.   The Senate Inquiry Report endorsed these concerns, including the need for substantial culture change around the reporting of serious incidents.

 

Stakeholders in the consultation process argued that a reporting and independent oversight system for serious incidents is an important and necessary component of a comprehensive framework for preventing, and effectively responding to, abuse, neglect and exploitation of people with disability.  Rationales for this included:

  • ensuring that organisations have effective internal governance and accountability mechanisms for serious incidents, including incidents or allegations of violence, abuse and neglect, in place;
  • ensuring that that the safety and wellbeing of participants is the highest priority when a serious incident occurs;
  • ensuring serious incidents involving people with disability are identified and responded to in a timely and appropriate way; and
  • preventing serious incidents occurring in future, including by identifying systemic issues for prevention and developing a comprehensive picture of the extent of violence, abuse, neglect and exploitation of participants.

 

The Submission from the NSW Ombudsman noted that common problems relating to the handling of serious incidents included:

·          inconsistent processes and systems;

·          ongoing failures to address key risk factors;

·          inadequate training for staff in recognising when serious incidents have occurred;

·          inadequate responses to incidents, including failure to report suspected crimes to the police; and

·          failure or significant delays in advising family members of incidents.

 

A number of stakeholders also stressed the importance of analysing serious incidents with the aim of mitigation and prevention.  Several stakeholders argued that the lack of consistent national collection and analysis of data on serious adverse incidents is a critical weakness in the current system.  They also noted that without it, it will be impossible to assess the effectiveness of, and ongoing need for, the quality and safeguarding system as a whole.  They argued that serious incident reporting also has an important role to play in ensuring that the system as a whole is genuinely focused on the needs of people with disability.

 

B         Worker Screening

                  Option B1: Maintain current arrangements

Currently all Australian jurisdictions require disability providers to undertake some form of worker screening for disability services:

 

  • Children with disability: All jurisdictions require those working with children to undergo risk-based assessments by a government screening agency (Working With Children Check); and

 

  • Adults with disability: All jurisdictions also have requirements that apply to those who work with adults with disability in the services they fund.  The content of requirements, however, varies considerably.

 

Historically most jurisdictions have relied on requirements to undertake a combination of referee reports and police checks.  However, a series of recent official reports, as well as a number of other studies, have highlighted inadequacies in some of the current staff recruitment requirements for those working with people with disability. [39] In response to these concerns, as the Table below illustrates, four jurisdictions have now put in place requirements for the centralised screening of adult disability workers:

 

·            Victoria has introduced a register of barred people for state-funded disability accommodation services, based on convictions and/or past work history;

·            Queensland’s yellow card system excludes some persons from the sector on the basis of their criminal and other history.

·            South Australia and the ACT have adopted risk assessment based disability worker screening.

 

Table 5.2.1: Screening requirements for those working with people with disability*

Requirement(s)

Jurisdictions

 

Pre-employment

 

(state/territory) Police check before employment

Vic, NT, Clth

 

National police check before employment

WA, NSW

International police check

Vic

Referee checks

Vic, NSW

Fit and proper person test (includes referee and police check)

Tas**

Working with Children checks for child related disability supports

Vic, WA, NSW, SA, ACT

Excluded persons list (accommodation services only)

Vic

Independent assessment of criminal history (including spent convictions)

Qld

Disability worker screening (independent risk assessment of police and range of other information held about the person)

SA, ACT

 

Ongoing monitoring

 

Requirements to undertake fresh police checks/renew clearance

NSW, ACT, SA, Qld

Live monitoring of criminal record

Qld

*Jurisdictions with more than one requirement are listed in italics.

**Legislation makes provision for a risk-based assessment, but this has not yet been implemented.

 

Effectiveness

 

The differing systems between states and territories result in significantly different levels of protection of people with disability across Australia.  The Victorian Parliamentary Inquiry, for example, highlighted a case where a provider complied with a requirement to conduct a (state) police check, which showed no convictions for the worker and so hired him as a carer.  When the person was subsequently arrested for alleged abuse, it emerged he had been previously been convicted of violence and sex offences in New South Wales.  A requirement to undertake a national police check or a working with vulnerable persons check (as required in some other jurisdictions) would have identified the convictions and potentially prevented the subsequent offences. [40]

 

A particular issue in the disability sector arises when police find credible evidence of abuse, but are unable to prosecute because of issues relating to the ability of victims to give evidence to a standard acceptable to the court.  In this situation, referee reports and police checks will generally not be sufficient to identify the risks associated with the person, resulting in potentially preventable cases of abuse and violence occurring (see Option 3 below).

 

Distribution and competition effects

 

The differing requirements mean that supplier costs differ by jurisdiction.  This could lead to distortions in the market given that prices for NDIS supports are generally set on a national basis.

 

In addition, because there are significant differences in requirements (including in the way that the central screening systems work), there is no mutual recognition between systems.  This means that suppliers and/or workers may need to obtain clearances in two or more jurisdictions where they operate across state borders or move between jurisdictions, pushing up costs further and acting as a disincentive to operate on a national basis.

 

There would also be an impact on Government.  In most cases current requirements for those working with adults with disability are tied to funding agreements and contractual arrangements.  It would be possible in theory at least, to translate these into conditions for registration, and audit them in conjunction with other quality assurance requirements.  It would however require states and territories with central assessment systems (Victoria, Queensland, South Australia and ACT) to maintain their existing systems beyond the transition period currently agreed.  In the case of the three latter jurisdictions, screening arrangements operate under legislative systems on a (partial) cost recovery basis and so this would be feasible.  Victoria’s Worker Exclusion Scheme however currently operates on an administrative basis tied to contractual agreements and there would be costs and practical difficulties associated with translating it into a legislative scheme.

 

Accordingly, for both efficiency and effectiveness reasons, a system that maintains the status quo is unlikely to be sustainable.

                  Option B2: Risk management by employers (self-regulation)

This option would represent a substantial reduction of regulation over current requirements.

 

Under this option, there would be no formal compliance costs, however, in the absence of formal requirements, many suppliers of supports would be likely to undertake police and other checks themselves as part of their risk management strategy in any case.  Not all will do so though, and in some cases the checks undertaken may be inadequate. [41] A survey of existing providers undertaken for the impact analysis suggests that as many as 20-50% of employers might decide not to continue to do police and referee checks in a voluntary system.

 

The risk that many employers will fail to do adequate checks is supported by a literature review of employment screening practices as a prevention measure for child abuse commissioned by the Royal Commission on Institutional Responses to Child Abuse.  It found that criminal background checks are universally considered to be a necessary, but not sufficient, component of pre-employment screening. [42]   It also pointed to many cases where failure to adopt such practices led to unsuitable people gaining employment and abusing the children in their care.

 

In addition, the evidence suggests that employers may over-estimate their capacity to identify and deal with predatory behaviour, or avoid abuse through action on organisational culture. The Royal Commission on Institutional Responses to Child Abuse, for example, has found that  perpetrators deliberately seek out positions of power over those least able to speak up for themselves, and go to great lengths to cover their tracks in the process.   While an employer may feel they know the person well enough to make a judgment without the need to do checks, the consensus of studies on the subject generally suggests that assessment of past criminal history is a relevant indicator of risk. [43]

 

Distribution effects

 

Under Option B2, it is assumed that most employers would no longer be able to rely on checks managed centrally by governments for those working with adults (where these currently occur) but would instead generally establish individual risk assessment systems.  They would also incur the costs of obtaining police and referee checks and reviewing them.   Nonetheless the option would allow employers to maximise their flexibility, eliminate mandated compliance costs, and allow suppliers to develop their own low cost systems.  It would also provide more flexibility to employ those with a criminal history with a prospect of rehabilitation (including those who may have lived experience of disability). [44]

 

This option would, however, expose participants to a significantly greater risk of serious adverse incidents where providers chose not to implement robust systems.

 

The costs of promoting best practice by Government are expected to be nominal under this option.  There could however be indirect costs as anecdotal evidence suggests that in those states where Working with Vulnerable People’s checks are not required, many employers are requiring staff to obtain Working with Children clearances instead as a proxy.  These costs have not been included in the analysis however.

 

Competition effects

 

A risk in this option is that some suppliers of supports may adopt a higher risk approach to recruitment to expedite the process and reduce their costs, putting pressure on other suppliers to follow suit in order to remain competitive, and potentially undercutting suppliers with a lower risk threshold.

 

Consultation

 

Stakeholders overwhelmingly (and all but unanimously) thought that Option B3 was inadequate in this sector, and would send the wrong signal to suppliers of supports about the importance of good recruitment and selection practices.

 

Overall impact

 

The option would be likely to result in a substantial increase in the number of serious adverse incidents over current levels.  In comparison, other options centralise the risk management function and afford significant cost savings.

                  Option B3: Require employers to conduct referee and/or national police checks

Effectiveness

 

Currently use of referee and police checks as a screening device by employers is generally mandatory (except in ACT, Queensland and SA which have central screening systems) and is regarded as an essential element of good practice, and an important part of the recruitment and selection process.

 

Referee and police reports do, however, suffer from a number of key limitations.  In particular, employers:

  • may not be able to access the information necessary to make good judgments for privacy, security or legal reasons
  • may not have the expertise to make good judgments on the information they do have
  • may choose to disregard the adverse information about the person for inappropriate reasons.

 

Lack of access to critical information is perhaps the most important of these issues.  Even where adverse information about the person is known to a previous employer or to police, employers may not be able to access it, because of privacy protections and other constraints.

 

Table 5.2.3: Screening information strengths and weaknesses

Information type

Importance

Accessible

to employers?

Problems with usefulness

Referee reports

High - past behaviour is often a good guide to future behaviour, and employer feedback can be a better predictor than interview performance

Subject to limitations

Applicant may omit the name of a person who will give an unfavourable report.

 

Applicant can provide the name of a friend or other person, who might represent themselves as a former employer.

 

Privacy protections under the Fair Work Act mean the employer cannot normally give a referee report unless the employee agrees. [45]

 

Employers may have entered a binding agreement not to disclose past misconduct as part of a FWA conciliation process.

 

Employers may give a positive report even where misconduct had occurred.

 

Criminal convictions

 

High - while a relatively small proportion of applicants are likely to have convictions, they may be extremely important in assessing risk

 

In part

 

Excludes spent and quashed convictions, juvenile offences, etc.

 

Assessing relevance of a conviction to the job requires good judgment - people who know the employee may unwisely choose to discount past history, while other employers may be unduly risk averse

‘Enhanced’ police information - - for offences alleged to have been committed, regardless of the outcome of those charges, such as acquittals, dismissed, withdrawn and pending charges convictions,

 

High - experience with working with children checks suggests that a small but significant number of people with adverse information that would not be disclosed in a standard police check will apply for clearance

 

No

 

Protected for privacy reasons, may only be accessed by approved Government screening agencies.

 

Workplace misconduct reports           

 

High, as many cases of misconduct may not be able to be proved to a criminal standard

 

No - unless a person has been deregistered or is subject to public restrictions on practice through a professional association

 

Key issue is capturing the information - mandatory reporting provisions exist for children, but not generally for adults with disability.

Information on workplace misconduct could also be captured through serious incident reports and complaints (Part II).

 

Distribution analysis

 

Option B3 is expected to generate substantial benefits compared to Option B2, as it would be expected to reduce serious incidents rates by requiring all employers to undertake checks of workers, including paying for police checks.  It generates positive benefits for employers (in costs avoided from redress), government and participants.

 

Impact on compliance costs

 

Under this option employers would need to obtain police checks (which cost in the order of $50 per person) and referee checks.  However, these costs are arguably a normal part of doing business that most employers would undertake in the absence of regulation.  Compliance would be verified through the registration process (see Options C1-5 below).

 

To the extent that Working with Vulnerable People Checks/Yellow Card costs are generally paid by employees rather than covered by employers, it could involve an increase in the compliance costs borne by employers in the ACT and Queensland jurisdictions (though employers may choose to undertake these checks in addition to the clearance). [46]

 

As all employers would be subject to the same requirements, this option is unlikely to impact on competition.

 

Consultation

 

Overall there was little support from stakeholders for this option except in combination with other options.  The overwhelming majority of stakeholders felt that while referee and police checks were essential and should be required, additional mechanisms were also needed to stop workers who are guilty of malpractice moving between services and jurisdictions to avoid detection.

                  Option B4: Worker registration (working with vulnerable people checks for disability workers)

A literature review of employment screening practices as a prevention measure for child abuse commissioned by the Royal Commission on Institutional Responses to Child Abuse found that there was strong agreement that comprehensive checks, including referee checks, other sources of information about suspected abuse, disciplinary body proceedings and other material were needed.  Much of this information is not, however, accessible to employers for privacy and security reasons.  In order to address the information gaps for employers, as well as provide objective and skilled assessment of risk information, a third option is to introduce a nationally consistent system of risk based screening of workers for those working with adults with disability. The effect of this option is to create a system of worker registration or 'positive licensing'.

 

The information that would be used under this approach would include:

 

·          criminal convictions (from national police checks)

·          criminal or civil charges not pursued, quashed and spent convictions and other information held by courts, police and child protection agencies, such as domestic violence and child protection orders, and broader child protection information

·          workplace misconduct reports about the person.

 

Some jurisdictions already operate centralised risk based screening systems for those working with adults with disability.  However, there are significant differences in the way that these operate.  As a result, if a worker moves, or works across state boundaries they must apply for separate clearances in each jurisdiction.

 

The  Working With Children Checks Report by the Royal Commission on Institutional Responses to Child Sexual Abuse, for example, found that the system is not working as well as it could. [47]   The report argued that complexity, lack of consistency, inadequate information sharing and lack of portability of clearances between jurisdictions have created a number of weaknesses in current systems.  It has recommended a national model for Working with Children Checks, by introducing consistent standards and establishing a centralised database to facilitate cross-border information sharing.

 

Under this option, it is proposed that jurisdictions agree in principle to a nationally consistent system of worker screening for those working with adults with disability, including the following features to facilitate mutual recognition of clearances and minimise costs:

 

·          the standards and design of the system(s) would be aligned with the most rigorous Working with Children Checks system as far as possible in order to maximise consistency and minimise administrative costs;

·          a Working with Vulnerable People Check would be valid throughout Australia, regardless of where it was issued (through mutual recognition arrangements);

·          workers could apply for registration before applying for jobs in order to minimise or eliminate delay costs for employers;

·          clearances would be portable between employers and employers would be able to verify their validity online.  Consideration would also be given to ways of providing additional information (beyond cleared/not cleared) to employers in order to eliminate the need for employers to undertake a separate police check);

·          the system would provide for ongoing monitoring of the person’s clearance against police information system and employer misconduct reports (from the serious incident system);

·          the assessment would consider convictions (including past, spent and quashed convictions); non-conviction information held by police and other agencies (such as charges not proceeded with, AVOs and Child Protection Orders); international police checks where feasible and relevant; and workplace history (including any allegations or findings of workplace or professional misconduct) and/or professional disciplinary proceedings;

·          workers would be able to provide any supplementary or explanatory material relevant, and would be able to appeal any decision not to provide clearance.

 

 

Under this option:

·          Victoria, NSW, WA and the Northern Territory would need to introduce legislation to introduce worker screening requirements;

·          Tasmania, SA, ACT and Queensland would need to amend their existing schemes in order to achieve sufficient consistency to permit mutual recognition of adult clearances.

 

Compliance costs

 

Under this option the compliance costs faced by employers would fall in all jurisdictions other than the ACT and Queensland (which already have WWVPC or equivalent systems) since:

·          employers would no longer be required to obtain police checks or, in the face of SA, pay for screening of the worker; and

·          in Victoria, accommodation service providers would no longer be required to report any adverse findings from referee or police checks and check the excluded persons list.

 

Instead, those wishing to work in the sector would be required to apply for clearance, and would be charged a fee for the clearance.  Employers would be able to verify the validity of the clearance online and enter a code to indicate that they were employing the person (so they could be advised in the event that the clearance is suspended or revoked).

 

Effectiveness

 

The Working with Vulnerable People Checks approach is based on using evidence about risk factors that predict the likelihood of offending to identify those who pose an unacceptable risk, and ensuring they do not work in the sector.  Government screening agencies can take into account a wider range of information than would be accessible to employers (or private sector screening agencies), including convictions, spent convictions, charges not proceeded with, AVOs and other information.  There are strong indications that this kind of information can provide a better indication of risk than criminal convictions alone. [48]

 

In addition, the system would allow workers to be excluded from the sector by having their clearance suspended or revoked where new information, such as a finding of serious workforce misconduct or criminal charges being laid against them.

 

The primary effect of a Working with Vulnerable People Check system is likely to be deterrence: anecdotal evidence from Working with Children Checks suggests that a substantial proportion of those with a history that may be uncovered by a check will exit from the sector or not apply for jobs in it.

 

A nationally consistent approach could also reduce the likelihood of some people slipping through the screening net by moving interstate.

 

The other key benefit of a pre-employment screening system is that it is preventative: the early identification and exclusion of those who pose a risk should lead to a cumulative reduction in the incidence of abuse, violence and exploitation over time.

 

That said, the number of people who would ultimately be excluded from working in the sector upfront is likely to be relatively small.  Some people with a history that may suggest a risk will, however, apply, and would be afforded an opportunity to make their case. Over time, though, employer reports of serious misconduct will lead to an additional number of cases being assessed.  Experience with existing systems based on assessment of police records suggests that around 1% of applicants are likely to have adverse information known about them that will lead to their application being rejected.   Workforce misconduct reports will lead to an additional number of workers being refused clearance, or having their clearance revoked.

 

The combination of these factors means that a Working with Vulnerable Person's Check approach, particularly if implemented in conjunction with a system of employer reporting of workplace misconduct, is likely to have a substantial impact in reducing the risk of serious adverse incidents because:

  • potential workers are assessed for risk before they start work in the sector (rather than being excluded after being found to have committed misconduct, or not excluded at all)
  • the assessment is independent and undertaken by skilled analysts against objective criteria
  • it can take into account a wider range of information than other approaches.
  • There is ongoing monitoring of an employee’s suitability to work with people with disability

 

Impact on employers/competition

 

Depending on the final model adopted, there are two other possible direct costs for employers.  First, if a potential worker does not currently a hold a clearance, and has a criminal record or other adverse information is known about them, there could be costs associated with delays while they seek clearance.   Secondly, if the system allowed for organisation/job specific clearances to be negotiated with employers (who would need to put in place appropriate risk management arrangements), this would involve some administrative costs.  The number of cases is likely to be very small however.  If a system of mandatory or voluntary employer reporting of worker misconduct was put in place, this would require employers to document the misconduct to a level that could be assessed by the screening unit.

 

Effect on potential workers

 

For the great majority of applicants, the check would be a simple data-matching exercise that would establish that no relevant information was held about the person.  Experience with existing systems suggests that clearances could be granted within 2-10 days without the need for further assessment. [49] Where a person’s past history does suggest the need for a full risk assessment, the assessment process may stretch out for an extended period of time given the need to provide the applicant with opportunities to exercise their right to make submissions on their case and respond to any material of which they may not have been aware. [50]

 

A few respondents in the consultation process expressed reservations about people being excluded altogether from working in the sector on the basis of a risk assessment that included past convictions (including spent convictions).  The majority, however, felt that the risk to vulnerable people clearly outweighed the rights of the small number of people who might be excluded from working in the sector.  People do not have a right to a job in a particular sector, and ‘fit and proper person’ checks are common in high risk jobs. Many also pointed to the problems of making complaints and obtaining convictions as a rationale for a more comprehensive approach, including as a way of reducing potential employer liability.

 

Consultation

 

In the consultation process, stakeholders almost universally supported the introduction of Working with Vulnerable People's checks.  Some stakeholders argued however, that over-reliance on checks can be detrimental to safety as they can provide a false sense of security, and lead to complacency.  They stressed that the measure should not replace the need for employers to put in place effective recruitment, selection and management systems for staff.  Stakeholders strongly agreed, though, that a nationally consistent and portable system of Working with Vulnerable People Checks should be the most effective means of preventing people with a history of criminal and exploitative behaviour from moving interstate to take up a new position.

 

The Consultation report noted that the reasons for majority support for Option B4 include that:

 

·             governments have a duty of care to protect NDIS participants from people with a history of criminal, predatory or exploitative behaviour

·             self-regulation and referee checks would be inadequate as they may not be carried out properly or the staff member may provide an incomplete employment history

·             police checks would be inadequate because not everyone who has committed abuse receives a conviction (in part because of the criminal standard of evidence requirement)

·             these clearances will prevent the need for multiple screening processes (unless working with children) if they draw on real-time information and move with the worker.

       

There was strong support for a nationally consistent approach to staff screening to prevent people with a history of misconduct from moving interstate to take up new positions.  Stakeholders also saw scope for the development of a consistent approach across sectors such as children and aged care sectors.

 

The main drawback of Vulnerable People's Checks is that they could make it difficult to recruit staff in some regional and remote areas.  All 'working with' systems, however, provide potential workers an opportunity to make their case for clearance to the screening agency, providing fairness and some flexibility.

 

Some employers were also concerned over the potential for delays in allowing staff to commence work.  This may be an unfounded concern, particularly given the proposed design of the system which would allow potential employees to obtain clearances prior to applying for a job with an employer.  One employer organisation argued that while screening systems are needed, they should be delivered by private sector screening agencies rather than Government in order to reduce costs and delays.  An employer survey undertaken by NOUS Group for the Impact Analysis also reported concern over delays in obtaining clearances.  Providers claimed that they lose, or would expect to lose, on average 3.1 potential workers each year due to delays in obtaining pre-screening information, at an average cost to the provider of $2,600. In practice most state screening systems provide outcomes for the majority of applicants very quickly.  Administrative data reported by the Productivity Commission on the ACT scheme found that:

 

  • 87% of WWVP checks in the ACT, where the applicant had no criminal history, require an average of 2 days to process
  • 12% of checks, where the applicant had a minor offence recorded, require an average of 5 days to process
  • 1% of checks involve applicants with significant criminal history, and require an average of 28 days to process. [51]

Option B5: Barred list

A barred workers list system currently operates in only one jurisdiction, Victoria, and there on a non-legislative basis in relation to accommodations services.  Accordingly, all jurisdictions (and/or the Commonwealth) would need to introduce legislation to implement this approach under the NDIS.

 

The key difference between a 'working with check' (positive licensing) and a barred persons list (negative licensing) is that a working with children or vulnerable persons check assesses all of the available information about a person before they can be employed in order to assess whether they appear to pose a risk to clients, as well as responding to any new information that comes to light.  Barring, by contrast, occurs only after a particular adverse event (serious misconduct or a crime) has occurred and is reported.  Employers are required to verify that the person has not been barred.

 

A barring scheme potentially could help prevent people who commit misconduct from simply moving to a new job with another provider, or across jurisdictions.

 

Consultation

 

There was somewhat less support for Option 5 (a barred persons list) than for Option 3 in the Consultation process, and most of those who supported this option suggested that it be introduced in conjunction with Option 4, and the design of Option 4 has been modified to reflect this. National Disability Services recommended Option 5 combined with Option 2 (referee and police checks).

 

Lower rates of support for this option may in part be because people have had limited experience with this model (a limited form of it has only been in place for Victorian for a short time).  The majority of respondents, however, felt a more comprehensive system of worker screening was needed in the sector.  In addition, some of those who had experienced the Victorian scheme had strong reservations about it.

Effectiveness

 

A barred list has the advantage of preventing workers found to have engaged in workplace misconduct from moving to another job in the sector. However, as the table below illustrates, it is a more limited approach than Option 4.

 

First, it is corrective only.  Some workers who would have been excluded from the sector under a working with vulnerable people checks will be able to obtain jobs; some proportion of these are likely to harm clients.  It is only after they have actually been found to have committed the misconduct that they can be excluded from the sector.  Moreover, not all of those who commit misconduct will be detected, at least in the short term.

 

Secondly, there is a risk that even where a person is dismissed by one employer and barred on the basis of that misconduct, they could continue to be employed, for example because they held more than one job, and employers are only required to consult with the holder of the barred person list at the time they employ an individual.

 

Table 5.2.5: Key differences between a barred list and 'working with' check

 

Working with check

Barred list

Pre-employment assessment of risk

 

Independent clearance agency

Employer, as under Option 2. List is maintained by independent agency who makes assessment of information available

Information considered

Includes conviction, non-conviction and other police information held about a person as well as employer reports and complaints

 

Criminal records where this becomes known.  Employer reports on serious misconduct, complaints where misconduct was found to have occurred.

Notification to employer

Employer informed if clearance suspended

If person held several jobs, other employers may not become aware of barred status

A barred persons scheme would also require that a level of evidence to support the barring decision exists - it would be difficult to justify barring someone from further work in the sector based on suspicion alone.

 

Some stakeholders also were concerned that employers could misuse the system to target whistle-blowers, or people they had personal conflicts with.

 

Would require review mechanism for worker.

 

Compliance costs

 

Employers: The difference in compliance costs for employers between Option 4 and Option 5 is likely to be insignificant.  Under either system, an employer would need to verify whether the person has a clearance or is on the barred list.  Under Option 5, however, if the barred person list was private, the potential worker would need to give their consent to a check being made (in order to prevent other parties from finding out that a person is on the list).

 

Under both options employers would be required to report serious incidents including those involving misconduct.

 

Table 5.2.6: Barring vs Working with Check - Administrative impact

 

Working with check

Barred list

Employees

Need to apply (and pay) for  clearance in order to be employed in the sector

 

 Consent to check against barred list

Employers

Verify worker has clearance (ideally online)

 

Report that they have employed person (database entry) to enable ongoing monitoring.

 

Report serious misconduct

Verify not on barred list. (on-line).

Would also need to verify police record check & Working with

Children check (if required)

Report serious misconduct impacting on clients

Report any adverse findings from police record / working with children check

Misconduct reports

Placed on database

 

If hold clearance, triggers suspension/possible cancellation of clearance (through new risk assessment) and employer notified

Triggers consideration of barring.

 

Government: A system to assess employer reports and decide whether barring action was warranted would need to be established.

 

 

C         Registration and Code of Conduct

 

Option C1 - Maintain state and territory based quality assurance requirements.

 

Currently the NDIS provider registration rules require providers to meet specified requirements depending on the type of support they offer, as well as comply with state and territory quality assurance requirements.

 

NDIS transition arrangements: Under the current NDIS legislation, responsibility for registration lies with the Chief Executive Officer (CEO) of the NDIA.  The NDIS Act provides flexibility about who can be a registered supplier. Except where a person is providing a support for which they must by law have certain qualifications (such as a psychologist or physiotherapist) or some other form of license, anyone can register if they can prove to the NDIA that they have the capacity and experience to provide the supports.

 

Under the arrangements for trial and transition, the CEO must take into account state or territory government approval requirements.  These arrangements could, in principle, be continued.

 

BOX: NDIS Supplier Registration assessment process

 

Currently suppliers are required to submit an application form through the NDIS Supplier Portal.  The application needs to include:

 

.           the supports they wish to provide;

.           the geographical areas the supplier can deliver supports to;

.           qualifications held;

.           relevant professional registrations or accreditations;

.           experience; and

.           details of processes in place to ensure high quality service.

 

Supplier are required to comply with all laws that apply in the jurisdiction they operate in, including requirements for employees to hold Working With Children and/or Vulnerable People Checks, Occupational Health and Safety requirements.  This also includes compliance with state and territory quality assurance/management systems requirements.

 

A Provider Registration Guide to Suitability Requirements sets out the criteria used to assess suitability to provide supports. The Guide sets out the professions, evidence of experience and capacity requirements evidence necessary to offer different types of NDIS supports.  Depending on the type of support offered, this can include providing evidence of financial viability, National Police Checks, Risk Management, Facilities and Equipment, Complaints, Insurance, Relevant licences, compliance with relevant standards, as well as appropriately qualified staff.

 

Under the transition arrangements, additional requirements apply in some states and the CEO must take into account state or territory government approvals.  In most states this involves a quality management and “due diligence” checking of suppliers.  Arrangements are in place to allow state and territory regulators to provide advice on registration to the NDIA.

 

Once providers are registered, they are required to comply with the NDIA’s Terms of Business.  The terms of business say, for example, that suppliers must protect participants’ privacy. Suppliers are not allowed to discriminate between people because of gender, marital status, pregnancy, age, ethnic or national origin, disability, sexual preference, religious or political belief. They also say that suppliers must have a complaints system.

 

There is a high degree of commonality in the elements of the quality assurance systems currently used by states and territories.  In particular, all jurisdictions have either included the National Standards for Disability Services which were agreed between governments in 2013 (summarised in the box below) in their disability and other relevant legislation, or mapped these to existing standards to ensure each standard has the same meaning across Australia.  Notwithstanding this, in practice stakeholders suggested that the National Disability Service Standards are understood and assessed differently in each jurisdiction.

 

Box 5.3: The National Standards for Disability Services

 

The National Standards for Disability Services, agreed by governments in 2013, are intended to promote and drive a nationally consistent approach to improving the quality of services. They focus on rights and outcomes for people with disability. There are six National Standards that apply to disability service suppliers.

 

1.         Rights: The service promotes individual rights to freedom of expression, decision-making and actively prevents abuse, harm, neglect and violence.

 

2.         Participation and Inclusion: The service works with individuals and families, friends and carers to promote opportunities for meaningful participation and active inclusion in society.

 

3.         Individual Outcomes: Services and supports are assessed, planned, delivered and reviewed to build on individual strengths and enable individuals to reach their goals.

 

4.         Feedback and Complaints: Regular feedback is sought and used to inform individual and organisation-wide service reviews and improvement.

 

5.         Service Access: The service manages access, commencement and leaving a service in a transparent, fair, equal and responsive way.

 

6.         Service Management: The service has effective and accountable service management and leadership to maximise outcomes for individuals.

 

 

The table below summarises the differences in assessment methods, which can involve a process of self-assessment, independent validation, independent assessment, audits/random inspections, and performance reporting requirements.



 

Table 5.3.1: Elements of the quality assurance system*

Key element*

Jurisdiction

Legislative principles (promote continuous improvement, person-centred, etc)

Cw, ACT, NSW, SA, Tas, Vic, WA

Linked to National Disability Services Standards

All

Self-assessment

All

Third party assessment

Cw, NSW, Qld, SA, Tas, Vic, WA

Performance measures reporting

Cw, NSW, NT, Qld, SA, Vic, WA

Source: Based on KPMG 2012.

 

Efficiency

 

In practice, because of the mix of formal, informal (including through contract and funding agreement management processes) and third-party regulation currently employed it is not possible to accurately assess the extent to which compliance costs differ between jurisdictions under current arrangements.

 

It is clear, however, that there is no nationally consistent system in which a provider who has met the standards in one jurisdiction can have this recognised in another. This means that suppliers operating across several sectors and/or jurisdictions have to comply with multiple sets of requirements, adding to costs.  A survey of providers undertaken by the NOUS Group found that only 25% of suppliers currently only comply with one quality assurance framework.  Just under half were required to participate in three or more quality assurance assessments, and around 8% with 5 or more. [52]   A significant proportion of these may be operating across several jurisdictions, as well as in related markets such as aged care or other community services.

 

Accordingly, this option would be administratively inefficient.  Moreover these costs can put small businesses at a particular disadvantage since the costs of them may more readily be absorbed by large organisations which may also obtain commercial advantage or prestige in gaining certification against recognised industry standards.

 

Effectiveness

 

Current quality systems have not been designed with the NDIS in mind.

 

First, they have been designed with specialist disability services in mind, whereas the NDIS will cover a much wider range of supports, many of which are low risk.  Alongside traditional specialist disability suppliers of supports there will be greater numbers of registered health professionals and suppliers of transport, household cleaning and gardening services. Requiring mainstream services to undergo full quality evaluation or quality assurance processes would pose considerable costs and could be a serious disincentive to provide supports to participants. Accordingly, there is a risk that unless the NDIS quality system arrangements are also sensitive to the market, smaller suppliers may be driven out and others deterred from entering, while entrenching the advantage of existing larger suppliers.

 

Secondly, even in relation to specialist disability providers, in the consultation process it was suggested that they often adopt too much of a ‘tick the box’ approach to assessing an organisation’s compliance with contracted standards rather than focusing on sustained quality and compliance. In part this is because current funding arrangements give funding bodies capacity to address quality issues through contract management processes which will no longer exist under the NDIS.

 

Thirdly, a particular concern raised in the consultation process was that not all of the National Standards for Disability Services readily lend themselves to be assessed through quality assurance mechanisms.  Currently these matters can be dealt with through informal regulation, in the context of management of funding agreements and contracts.  IN the NDIS environment, other approaches, such as a Code of Conduct, may be needed to supplement this approach.  A voluntary Code is unlikely to be viable in an emerging and transitional market situation however.

 

Conclusion

 

As this approach is not likely to be efficient or effective in the NDIS environment where state and territory governments no longer have contractual relationships with providers, it is not recommended.

                  Option 2 - Voluntary certification

For the purposes of registration suppliers would need to comply with all applicable laws (such as ensuring workers hold relevant clearances).  They could apply for a quality certification on a voluntary basis.  .

 

Option 2 is essentially a self-regulation approach, and would be a significant reduction from what individuals and organisations wanting to provide disability services must currently do to meet the NDIS registration requirements.  .

 

This option would significantly reduce suppliers’ mandatory compliance costs in all jurisdictions.  Currently, all jurisdictions require suppliers to undertake a more comprehensive approval process than would be required by this option. Essentially the internal administrative cost would amount to completing and submitting an ‘application to register’, which is already required in some form under current arrangements. This option would be a reduction in requirements for suppliers in all jurisdictions currently delivering specialist disability services.

 

Consultation

 

There was very limited support for this option in the stakeholder feedback.  Those who did support it argued that it would provide a balance between choice and assurance, and that quality assessments are not a guarantee of quality.  The majority of stakeholders however felt that it would be likely to lead to a significant increase in the number of serious adverse incidents, and that this was not an acceptable outcome.

 

Distribution effects

 

Suppliers would benefit from not being required to undergo the more rigorous requirements they are currently subject to under existing systems, and governments, who would no longer need to undertake the same level of regulatory oversight of the sector.   Accordingly the regulatory burden would be very low.

 

This comes at the cost of participants, however, who could experience an estimated 100% increase in serious adverse incidents. [53]

 

Conclusion

 

As this option could be expected to lead to a substantial increase in serious adverse incidents, it is not recommended. This option has a high risk of compromising the integrity of the NDIS through poor quality supports that do not achieve participant outcomes, and is arguably inconsistent with the intent of the legislation requiring that suppliers be registered.

                  Option C3 - Additional conditions

Effectiveness

 

While there are a number of factors that determine the risk to any single individual, there are some types of supports where risk is always greater because of the circumstances in which the support is typically offered, for example, when supports are provided in a private or closed setting.  In general, most suppliers would be expected to have some form of complaints handling system, recruitment practices which ensure that participants are not exposed to workers who may cause harm and systems to protect the privacy of clients.  They would also be required to notify the NDIS complaints body of serious incidents.

 

This option would represent a substantial reduction in the overall level of regulation compared to current requirements, which generally apply to all specialist disability providers.  Accordingly there is a danger that the relatively low barriers to entry could create rapid turnover because suppliers who were not committed to their long-term sustainability could enter, offer unsafe or poor quality supports and then move out of the market again.  Moreover, those with a questionable history could find it relatively easy to re-establish themselves in a new setting. This could lead to exploitation and rorting of the system, as well as leave participants without essential supports.

 

There would be no mandated external auditing of service quality, and so participants would largely rely on word of mouth and publicly available information in order to assess the safety and quality of a supplier.

 

Distribution effects

 

Suppliers: For existing specialist disability services this would be a reduction in the regulatory burden compared to current requirements (Option 1), but an increase in costs compared to Option 2.  New suppliers may need to invest in establishing new systems to meet conditions, but as the requirements would be equivalent to appropriate business practice for the type of support, the costs of this are expected to be relatively low.

 

This option would allow suppliers of supports to register and enter the market quickly while ensuring some critical standards, such as, the qualifications of the supplier to undertake a particular service safely and competently have been checked.

 

Participants: As this would be a significant reduction in oversight over current requirements, it is estimated that it could lead to an increase in serious adverse incidents of around 50% over current levels.

 

Consultation

 

There was only limited support for this option in the consultation process.

 

Conclusion

 

This option would not provide an adequate level of quality and safeguards for supplier offering support in the higher risk service clusters.

 

                  Option C4 - Mandated independent quality evaluation of suppliers of supports considered higher risk

 

Under this option, where a provider was judged higher risk, a quality evaluation process would be required.  The evaluation would assess information based on participants’ experiences of the organisation in assisting them to access supports and meet their individual needs and goals. The evaluation assessments would be descriptive and made public. The assessment would also consider other aspects of a supplier’s business, such as safety, staff management, timeliness and responsiveness to user feedback. The aim would be to inform future and current participants about the relative strengths and areas of improvement of suppliers. A supplier would not be excluded from registration on the basis of a below average assessment, provided they continued to meet all other registration conditions.

 

The majority of businesses operating in the general marketplace, for example, general gardening or household supports, taxi services, and suppliers of aids and equipment, would be exempt. These types of supports are used widely across the population and information on people’s experience of these supports is becoming increasingly available online.

 

Only suppliers delivering supports of a type likely to create a greater risk to participants (that is, supports that involve more direct staff-participant contact; or which lack supervision such as personal care support, respite or supported residential services) would be required to participate in a quality assessment under this option.

 

Effectiveness

 

The focus of this approach is client experience rather than objective measures that focus on systems to promote safety.  This could help reinforce user choice as a driver for a more client centred approach.

 

Because it provides less focus on safety processes than most current systems, Option 4 could, though, be expected to lead to a modest increase in serious incident levels.

 

The evaluation assessments would be descriptive and made public. The assessment would also consider other aspects of a supplier’s business, such as safety, staff management, timeliness and responsiveness to user feedback. The aim would be to inform future and current participants about the relative strengths and areas of improvement of suppliers. It is questionable how effective this information would be in driving participant choice for many participants however.  In addition, there would still be major information asymmetries given that safety defects may not be evident to participants.

 

The operation of the Code of Conduct would provide a mechanism to exclude suppliers engaging in the most serious forms of misconduct from the market, but reliance on complaints would mean that it would represent a very light touch approach. Many consumers in the NDIS market may not be in a position to make a complaint themselves, or may fear retribution if they do.  For this reason, it could be important that the trigger for consideration of whether a breach of the Code of Conduct had occurred not depend on complaints alone, as is the case for many other Codes.  Instead the process could potentially be triggered by intelligence from a range of sources, including serious incident reports; advice from advocates; family and friends; Community visitors; health or educational professionals and media reports.  Regardless of the source of information, an appropriate investigation would then need to occur to verify the relevant allegation.

 

Distribution effects

 

Participants: The most significant benefit of this option is that participants would be provided with independent outcomes-based quality information to help them make choices between suppliers in the market. This means that the quality evaluation will describe a range of attributes of a particular supplier, and participants will be able to make their own decisions based on what is most important to them and choose from a potentially wider range of suppliers. The approach focus on the participants’ experiences of the supports they receive.

 

Suppliers: The majority of businesses operating in the general marketplace, for example, general gardening or household supports, taxi services, and suppliers of aids and equipment, would be exempt. These types of supports are used widely across the population and information on people’s experience of these supports is becoming increasingly available online.

 

Only suppliers delivering supports of a type likely to create a greater risk to participants (that is, supports that involve more direct staff-participant contact; or which lack supervision such as personal care support, respite or supported residential services) would be required to participate in a quality assessment under this option.  It is estimated that this could amount to around 20% of suppliers of supports. [54]   Suppliers offering lower risk supports would be asked to additional requirements as described under Option C3.

 

The compliance costs for business associated with this option represent a reduction in cost for most suppliers compared to the certification processes most are currently required to undergo, since requirements would be more closely calibrated to risk, and equivalent standards would be recognised, eliminating the need to undergo multiple certification processes in order to operate across jurisdictions or sectors. Nonetheless, it does involve a substantial cost which could deter entry, particularly in thin markets.

 

Consultation

 

There was some support for this approach among stakeholder groups and from National Disability Services. The reasons given for this were that:

  • the focus of quality assessment should be on the perspectives of people with disability and the outcomes for people with disability, not processes; and
  • quality assurance systems are not a guarantee of quality and they are costly.

 

Some stakeholders, however, expressed concern that it could lead to less of a focus on achieving outcomes, and result in a cultivation of dependency on suppliers.

 

Suggestions on the possible content of a code of conduct were generally in line with the National Standards for Disability Services, including prohibiting behaviours that may cause harm, respecting people with disability, listening to and being guided by what a person wants, and respecting people’s right to privacy. Stakeholders also noted, however, the need for organisations to have effective recruitment, training and supervision practices, effective complaints and serious incident management processes, and accountable governance arrangements, which would not be tested under this option.

                  Option C5 - A quality assurance scheme.

Under this option all providers will be required to meet certain basic requirements including complying with an NDIS Code of Conduct, and complying with other elements of the framework such as complaints mechanisms (if agreed).

 

A key element of this option would be an assessment of the proposed scope of a suppliers practice in order to decide what requirements should apply, having regard to the inherent riskiness of the support type, and expected client profiles. The diagram below illustrates how these would be tiered.

 

Tiered provider requirements

 

Lower-risk supports

Higher-risk supports

Larger providers

Provider types: e.g.  cleaning company (more than 5 employees).

Requirements : Can choose verification of individual employees, or certification of organisation. The latter will be more efficient (lower cost and address employee turnover).

Provider types: large organisation undertaking range of higher risk supports, including personal care, behaviour support, accommodation.

Requirements : Quality assurance certification; focused on compliance with practice standards and management of risks, including governance, internal quality systems. Requirements tailored to scope of supports offered.

 

Smaller providers

Provider types: e.g. sole operator doing gardening, cleaning; allied health professionals registered with AHPRA or that have full membership of a recognised professional association, where relevant to their scope of practice.

Requirements : Verification of insurance, qualifications, employee screening.

Provider types: e.g. sole operator offering higher risk supports.

Requirements : Proportionate quality assurance certification tailored to scope of supports. Includes: competence, training, experience and understanding of risks. Certification evidence requirements proportionate to the size of the organisation.

 

Under this option a simple verification process would confirm a supplier’s identity, professional qualifications or licensing (where these are required by law), check that the supplier has adequate insurance for scope of the nature of the service being offered and that in the case of an individual, they have a current national police check or working with children or vulnerable person’s clearance.  In the case of an organisation, verification would involve checking that the organisation undertakes this verification of staff itself.  Suppliers offering personal supports would also need to demonstrate that their workers had completed an orientation to the NDIS that ensured they had a basic awareness of the principles and values underpinning the scheme, including issues relating to abuse and neglect.

 

There would be a third party quality assurance certification in which suppliers would apply for a certification against the NDIS practice standards (which step out the National Standards for Disability Services in more detail) for the scope of services they intend to provide. The quality assurance scheme would be established as the NDIS Practice Standards Scheme.   The scheme and practice standards will be owned by the NDIS Registrar and managed and maintained in line with best practice standards set out by an accrediting body, such as JAZ-ANZ.  The methodology for assessment will ensure a much greater focus on supplier performance against standards using the lived experience of the participant, captured through observation and conversation with the participant and families, compared to current quality assurance systems.

 

Under this approach a scheme would be created which would instruct auditing bodies on the methodology for assessment to ensure the requirements are proportionate to risk.  The scheme would have a set of core practice standards which address suppliers’ governance and risk management.  How these are assessed and what the auditor will require as evidence would depend on the size of the supplier, its turnover, and its governance structures.

 

Additional practice standards would be prepared as modules, with the scope of services that a supplier proposes to offer determining which modules they will need to be audited against.   Some suppliers would be audited against only one or two modules.  For example, a supplier who is offering clinical would be subject to a standards which require them to demonstrate they and their staff have the skills and training to achieve outcomes for this cohort and they understand and comply with the NDIS and state and territory laws regarding the use of restrictive practices and NDIS reporting and accountability requirements.

 

Suppliers offering personal care or community access for individuals who could have clinical needs would be required to meet standards that address their competency and risk management for providing safe and quality services to that cohort.  This would include requiring workers providing personal supports to complete an induction module to ensure that these workers are familiar with the principles underpinning the NDIS and the risks of providing supports, including issues related to abuse and neglect.

 

There will also need to be a standards module for Specialist Disability Accommodation to ensure that registered suppliers of housing are meeting and maintaining standards, including practice standards which ensure safeguards for participants accessing this type of housing in the market.

 

The diagram over illustrates how the requirements would operate.

 

Under this option, suppliers would also need to comply with report on standard information, consistent with requirements already commonly in place under contractual funding arrangements and/or the NDIS Act, including serious incident reports.  Depending on the nature and size of the organisation involved this may include financial reporting and/or reporting on significant governance changes, for example where continuity of service arrangements might need to be put in place if the organisation fails.  For those suppliers that fall within the market monitoring risk threshold, the NDIS Registrar will assess their financial viability and governance arrangements and may require a plan for continuity of service to be put in place if the organisation fails.

 

Code of Conduct

 

The Code of Conduct would complement these requirements and operate in a similar way to current codes such as that applying to allied health workers, and would also apply to unregistered suppliers (ie suppliers who choose not to register and provide supports to self-managed participants).

 

The NDIS Code of Conduct would set out basic participant rights consistent with the National Standards for Disability Services, effectively acting as a negative licensing scheme.  From the participants’ perspective, it would operate through, rather than separately from the complaints system.  A NDIS Code of Conduct could supplement the system of standards by articulating and enforcing expectations for both suppliers of supports and individual workers. 



Provider registration, verification and certification processes

 

Title: Provider registration, verification and certification processes



The Code would help operationalise the National Standards for Disability Services by:

 

·          setting expectations for organisations and workers in the sector;

·          shaping the behaviour and culture of organisations and workers;

·          empowering consumers in relation to their rights; and

·          providing a basis for the regulator to take regulatory action where the supplier of supports or an individual has breached the Code.

 

The following possible elements are intended to provide an indication of the nature and scope of the Code, but would be the subject of a further targeted consultation process.

 

Workers and suppliers should:

  1. Respect the rights and dignity of all NDIS participants, including their right to choice and control and to take reasonable risks.
  2. Provide supports in a safe and ethical manner with reasonable care and skill.
  3. Not make false or misleading claims or misinform participants.
  4. Respect the privacy of participants and comply with relevant privacy laws.
  5. Take into account the needs, values, and beliefs of different cultural, religious and ethnic groups.
  6. Communicate in a form, language, and manner that enables the participant to understand the information provided and make known their preferences
  7. Provide an accessible, fair and impartial complaints and disputes process that allows grievances concerning the support to be raised and resolved.
  8. Not practise under the influence of alcohol or unlawful substances.
  9. Not financially exploit clients in any way.
  10. Not engage in sexual activity, consensual or non-consensual, with a participant to whom you are proving supports.
  11. Keep appropriate records and implement reporting and investigation procedures for serious incidents.
  12. Offer reasonable supervision and take reasonable steps to ensure staff are competent and supported to perform their role.
  13. Maintain adequate personal and professional liability insurance appropriate to the risks associated with your practice.
  14. Display the code of conduct or make it available to participants.

 

The Code would be given legislative effect and would apply to individuals and organisations.  Providers would not have to demonstrate compliance against it, instead potential breaches of it identified from complaints, serious incident reporting, quality assurance and other sources would be investigated;

 

Effectiveness

 

Quality assurance requirements represent a continuation of existing requirements for many government-funded specialist disability services.  As for Option 4, Option 5 would provide information of participant experience of the support, but it would have an additional focus on governance, operations and the quality system to ensure a viable and well-functioning organisation. Suppliers who do not meet standards would be directed to make improvements, and if they fail to do so, they may be deregistered or precluded from entering the market.

 

This option proposes that low risk supports would be required to comply with a minimum set of conditions to assure the Registrar that the supplier is competent and able to comply with all legal requirements.   For a smaller group of higher risk suppliers, including those who work in closed environments with people who have limited communication capacity or have a cognitive disability, there should be comprehensive independent system for quality assurance. This is different to an evaluation approach as it brings a greater level of objectivity, consistency and professionalism to the assessment process.

 

That said, experience has shown that quality assurance systems are never perfect and by its nature, human services delivery will always carry some risk.  For these reasons quality assurance systems must work alongside effective complaints schemes and a regulatory approach that enables early identification of risk and builds natural safeguards as much as possible.

 

Continuing registration of a supplier would, however, be subject to the supplier behaving safely and ethically.  In the consultations, stakeholders identified the need to address a number of behaviours set out in the national standards, including prohibiting behaviours that may cause harm; ensuring that workers respect people with disability, including listening to and being guided by what a person wants; and respecting people’s right to privacy.  They were particularly concerned at the need to address the possibility of behaviours that may not technically constitute a crime, but which should never be acceptable in the NDIS, such as harsh, rough, exploitative or otherwise unethical treatment, depriving a person of food, sleep or basic needs, bullying, intimidation, vengeful, or deceptive behaviour in response to a complaint or incident. They considered that an enforceable code of conduct would be an appropriate mechanism for this purpose.

 

The vast majority of suppliers of supports and workers are likely to operate in a safe, competent and ethical manner. A small proportion, however, may prove to present a serious risk to the public, or may operate outside the boundaries of acceptable conduct one would reasonably expect within the NDIS.

 

A NDIS Code of Conduct could supplement the system of standards by articulating and enforcing expectations for both suppliers of supports and individual workers.

 

Efficiency

 

The Consultation RIS proposed a system potentially with four tiers of requirements depending on level of risk.  Stakeholders suggested that a more nuanced and streamlined approach would be preferable, and Option 5 has been designed to reflect this.  It would provide a more targeted approach, with requirements tiered according to risk.  In addition, by moving to a single national system, with recognition of common components of other certification systems, supplier compliance costs could be expected to at least halve compared to current levels without any impact on outcomes.

 

For most social care suppliers, the essential ingredients of quality person-centred service delivery can be distilled into a relatively small number of core competencies.  Many of these competencies, however, are hard to measure in concrete ways, and so funding bodies have not been able to collectively agree on what particular competencies or attributes should be assessed or how.  This has resulted in multiple quality assurance standards and systems which, effectively measure the same capabilities and client outcomes.  For suppliers this imposes significant costs, diverting resources from improving quality to proving quality.  For suppliers who have a wide scope of services and client groups and/or a national services footprint, this may mean they have to demonstrate adherence to a number of quality certification systems.  The creation of a national supplier registration system for the NDIS is an opportunity for purchasers across a range of program areas and jurisdictions to recognise one system of quality assurance.  This would significantly reduce the cost burden on social care suppliers.

 

Currently suppliers are generally required to undergo certification and submit to ongoing audit requirements as a condition of their funding agreements. This approach is intended to place the least burden on suppliers of services where risk to participants and the NDIS scheme are small.

 

Under this option low risk services such as everyday type services which are used by the general public, for example a gardeners or domestic cleaning service or a taxi company would only be subject to simple verification requirements.   These suppliers, if they are operating as a business with multiple employees could choose to seek a quality assurance certification under the NDIS Practice Standards Scheme, but it would be voluntary.

 

Where suppliers are applying to register as individuals who propose to offer equivalent low risk supports, a simple verification process would apply to check evidence of profession and public liability insurance and police records and/or relevant “working with” checks.   This would be a largely automated and rapid process for people with no criminal history.

 

Similarly, where suppliers offered supports whose scope of service are covered by already regulated by existing schemes, simplified registration would apply.  This would mean that registered allied health professionals (registered with the Allied Health Professionals Registration Authority or have full membership of a recognised professional association as prescribed in Schedule 1 of the Health Insurance (Allied Health Services) Determination 2014), for example, would simply have to establish that their registration is current and that they have appropriate professional indemnity insurance.   There would however be some exceptions, for example where allied health professionals are intending to provide a service type that requires highly specialised skills and experience, such as early intervention services for children, and behaviour supports practitioners who would need to meet professional competency standards.

 

In addition, suppliers of supports who meet quality assurance requirements deemed equivalent to those applying under the NDIS would not need to undergo a separate assurance process.

 

Higher risk suppliers would be required to obtain certification under the NDIS Practice Standards (including the subset of allied health professionals described above).

 

A Code of Conduct would not represent an additional impost for registered suppliers of supports; rather it would simply be another means of articulating and enforcing the standards that applied to them.  From the participants’ perspective, it would operate through, rather than separately from the complaints system.  For unregistered suppliers of supports providing services and products to self-managing participants, the Code could operate as a negative licensing system.  Assuming that the number of self-managing participants stabilises at 6%, business compliance costs would be minimal since they only arise when a serious case of misconduct occurs, and the existence of the scheme will act as a deterrent.

 

Managing market risk

 

Arrangements for reporting of key performance information would provide a mechanism to identify and manage the risk of failure of a very large supplier that would be difficult for the market to absorb, a key risk identified by a number of stakeholders.

 

Distribution and competition effects

 

Notwithstanding the benefits that suppliers identified from participation in them, quality assurance requirements involve significant costs (estimated at around $20,000 per annum).  This represents a significant barrier to entry for those delivering relatively high risk supports, and potentially increasing costs to government of arranging supplier of last resort services.

 

These factors, however, needs to be weighed, however, against the potential harms to participants from unsafe services, and risks to taxpayer funds of services that do not deliver the desired outcomes.

 

Consultation

 

In the consultation process, mandating quality assurance requirements received the strongest support of any option.  Stakeholders from a range of groups, including people with disability and their families, suppliers, peak bodies, professional associations, statutory bodies and academics, supported this approach on the basis that it was the most likely to ensure high quality supports and manage risks.

 

The stakeholder consultations found broad support for an independent quality verification system, with strongest support for mandated participation in an external quality assurance system for suppliers of supports considered higher risk.  The arguments for this approach included:

  • lower-level requirements would not provide sufficient assurance of quality, for example, a Code of Conduct alone would be insufficient without auditing;
  • it would provide an independent, objective and professional assessment of quality;
  • it would provide the best assurance of quality supports;
  • it has supported and would continue to support continuous service improvement;
  • communities expect some level of quality assurance for government-funded services;
  • it should ensure that services have appropriate risk-management processes and governance;
  • it would help to ensure that services are sustainable; and
  • it would build on developments in quality management in the disability sector and not reduce
  • current safeguards.

 

In a provider survey, the majority of respondents were positive about the benefits of quality assurance frameworks [55] , having found them valuable in building rigour in their governance and risk management capability.

 

Stakeholders had mixed views about translating qualification requirements for workers into the NDIS.  Some thought all workers or workers in certain roles (who are not already subject to professional registration requirements by law) should be required to meet minimum qualification or training requirements and meet continuing professional development obligations.  Most stakeholders, however, emphasised the importance of workers’ attitudes over their qualifications, and were concerned that minimum qualification requirements could make it difficult to recruit sufficient workers, and favoured a more targeted approach (for example through practice standards for particular types of supports).

 

 

D         Reducing and Eliminating Restrictive Practices in NDIS Funded Supports

 

Background

 

Consistent with the UN Convention on the Rights of Persons with Disabilities , the Commonwealth, state and territory governments have committed to reducing and eliminating the use of restrictive practices through the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector . The National Framework, which was agreed in 2014, sets out six core strategies to be implemented by 2018 (see Box).

 

Box 6: Core strategies for reducing and eliminating the use of restrictive practices

Person-centred focus :  Including the perspectives and experiences of people with disability and their families, carers, guardians and advocates during restrictive practice incident de briefing, individualised positive behaviour support planning, staff education and training, and policy and practice development.

Leadership towards organisational change : Leaders need to make the goal of reducing use of restrictive practices a high priority, and provide support to their staff to achieve it

Use of data to inform practice : Mechanisms—such as periodic review of behaviour support plans containing a restrictive practice, supplier reporting on use of restrictive practices, reporting client assessments and individual/positive behaviour support plans—should be used to assess whether restrictive practices are still needed, and consider possible alternatives.  Data is also important to determine what factors are effective in reducing or eliminating the use of restrictive practices.

Workforce development : Key needs include understanding positive behaviour support and functional behaviour assessment; and skills for trauma informed practice, risk assessment, de-escalation, and alternatives to restrictive practices. 

Use within disability services of restraint and seclusion reduction tools : Use of evidence-based assessment tools, emergency management plans and other strategies integrated into each individual’s support plan.

Debriefing and practice review : Disability service providers should undertake regular review processes of their use of restrictive practices in order to identify areas for practice and systemic improvement.

 

Effective strategies to reduce the use of restrictive practices have clear benefits for participants in terms of quality of life and quality of care. Their use is also estimated to increase costs to service providers compared to other interventions, with the estimated staff time amounting to some $250-350 per use. [56]   Use of alternative strategies is also likely to reduce indirect costs, since 11.4% of providers using restrictive practices reported having a client or staff member seriously injured in the process. [57]

                  Option D1: Maintain current arrangements in place each jurisdiction.

While jurisdictions have all agreed to the National Framework for reducing and eliminating the use of restrictive practices, they currently have different approaches to regulating the use of restrictive practices and use different definitions. This reflects the fact that current mechanisms were intended to be interim measures pending the development of the NDIS Quality and Safeguarding Framework.

 

All states and territories have systems of guardians, which are aimed at protecting the rights of people who are deemed not able to consent themselves.  In addition, some have included provisions to regulate the use of policy in their disability services legislation (Queensland, Victoria, Tasmania, NT and SA). Others set out high-level principles and objectives in legislation, which are relevant to but do not specifically address the use of restrictive practices (ACT, NSW and WA), and include specific requirements in policy (NSW) or a code of practice (WA).

 

Aside from approval arrangements for decisions to include a restrictive practice in a positive behaviour support plan, Queensland, Victoria and Tasmania have introduced reporting requirements around the use of restrictive practices and South Australia is currently developing reporting guidelines. Victoria and Tasmania also have Senior Practitioners with statutory functions that include developing guidelines and investigating the use of restrictive practices.

 

In order for these provisions to continue to operate in full scheme, states using policy mechanisms applying to funded providers to give effect to the Framework (such as NSW) would need to move to a legislative framework, while others may need to amend legislation to ensure that current provisions continue to apply to NDIS funded services.

 

Efficiency and effectiveness

 

Current arrangements do not fully implement the National Framework, and so are unlikely to be fully effective in achieving the desired objective of moving away from the use of restrictive practices to an approach focused on understanding causes of behaviour, and preventative action.  In addition, current arrangements have been developed around the former system of funding agreements and contracts which will no longer apply.   Accordingly, substantial changes would need to be made to current legislative and other policies in order to reflect the new operational environment.

 

For these reasons, Option D1 is unlikely to meet efficiency and effectiveness objectives.

 

This approach could also lead to substantial differences in compliance costs between jurisdictions which would be difficult to sustain under a national system (including price setting).

 

Accordingly this option is not considered further.

Option D2: Registration requirements only

 

Currently all jurisdictions have legislation in place that either directly regulates the use of restrictive practices or sets out high level principles and objectives which are relevant to their use, while several all regulate their use and impose reporting requirements.

 

In the consultation, some stakeholders expressed concern about the concept of ‘approval’ of restrictive practices in the NDIS Quality and Safeguards Framework because they represent an infringement of human rights and should be prohibited outright.  A system based on regulation of providers through registration requirements only could address this concern, but may not necessarily provide the strong legislative basis required to protect the rights of people with disability at risk of being subject to restrictive practices.

 

This approach would represent a substantial reduction over the current system.

 

Consultation

 

While some argued against regulation of the use of restrictive practices, comments from many others identified regulation as necessary to protect participant rights by ensuring that restrictive practices are used only as a last resort and that the least restrictive option is used. Many identified the need for legislative requirements that set out conditions that must be met before a restrictive practice can be used if the person has impaired decision-making capacity (where these are not already in place in state or territory legislation).

 

For the vast majority of people with behaviours of concern, stakeholders generally agreed that it is reasonable to assume that elimination of restrictive practices over time should be attainable.  However, it was also noted that there needed to be recognition that there may be some emergency situations or extenuating circumstances that arise where a restriction is the only available response.  They also noted that for a small minority, it may not be possible to avoid the use of restrictive practices, even where a positive behaviour support plan is in place and being implemented effectively.  A person with Prader-Willi syndrome, for example, may require restrictions placed on their access to food in their home due to behaviours arising from their medical condition that could cause harm, such as overeating or eating foods that have not been prepared properly and may cause food poisoning.

 

Effectiveness

 

Under the NDIS, suppliers who offer supports to individuals who require positive behaviour support would generally be subject to particular requirements, consistent with the registration options agreed.  Research has demonstrated that appropriate staff training on the use of positive behaviour support Plans can improve the safe application of restrictive practices as well as significantly reduce usage rates (with some studies suggesting a reduction of up to 80%. [58]   Accordingly, appropriate registration requirements, combined with access to support from a behavioural support practitioner and workplace culture could have a significant impact on usage rates.

 

However, while this would include audit requirements and serious incident reporting there would be no effective mechanism to detect and take appropriate action where restrictive practices were used inappropriately.  The NOUS Group’s report indicated that reporting of the emergency use of restrictive practices, for example, enables regulators to monitor trends at the system level and provide advice to individual service providers on how they can reduce their use of restrictive practices. [59] The absence of a robust accountability mechanism, as well as the other strategies set out in the National Framework is accordingly likely to undermine any gains from a more targeted registration system, and provide inadequate protections for people with disability who are not in a position to make a complaint.

 

Efficiency

 

A key risk is that in the absence of a robust regulatory structure, providers will be unwilling to offer supports to high risk participants because of the costs involved. Uncertainties about the legality of the use of restrictive practices in particular circumstances could be a significant disincentives, particularly in a more market based system.

 

Conclusion

 

While appropriate registration requirements are a necessary condition for reducing the use of restrictive practices, they are unlikely to be a sufficient one.  This option would not adequately implement the agreed framework for reduction and elimination of restrictive practices.

 

                  Option D3: Prohibit use of restrictive practices outside approved Positive behaviour support plans, and require providers to report use against them

 

Effectiveness

 

The overarching legislative framework proposed would provide a clear focus on reducing and eliminating restrictive practices, both by placing obligations on decision-makers aimed at avoiding their use, putting in place monitoring and oversight arrangements to ensure progress is being achieved.

 

It would provide a strong focus on accountability by requiring plans to be reviewed regularly, and for providers to report monthly against the plan.  Reports would be monitored so that appropriate interventions could be put in place if it appeared they were being overused or other problems arose.  Monitoring of trends would also provide a mechanism for identifying strategies to assist providers to reduce the use of restrictive practices on a systemic basis.

 

This is likely to significantly reduce the use of restrictive practices over time, with major gains for participants in terms of quality of life.

 

Efficiency

 

A nationally consistent approach would most effectively support the national focus of the NDIS, minimise the costs associated with different jurisdictional requirements, and enable reported differences in the usage rates to be investigated and addressed through education and awareness as well as other preventative strategies.

 

Compliance costs

 

Reporting requirements: The key compliance cost for providers would be reporting costs.  The consultation process canvassed a range of options for frequency of reporting.  Reporting on each use of restrictive practices was generally felt to be too onerous, while reporting against emergency use of restrictive practices received very little support from stakeholders, on the basis that while it would minimise compliance costs, it would not provide accountability and transparency of situations where participants have restrictive practices approved as part of the positive behaviour support plan, or whether each use of a restrictive practice was appropriate in the situation.  A requirement to report once a month, with systems to minimise the reporting burden, so that, for example ongoing restrictive practices would only need to be entered into the system once unless something changed, was recommended as striking a reasonable balance.

 

Consultation

 

The design of this option (and associated non-regulatory measures) reflects input from the consultation processes on options canvassed in the consultation process, as well as subsequent expert workshops suggesting that it was important to focus on addressing the causes of behavioural issues, including by ensuring that providers have access to appropriate expertise and guidelines, and have appropriate skills and systems in place, as well as accountability measures.

 

 

S ection 6: Evaluation and Conclusion

 

As noted above, maintaining current arrangements (Option 1 for each component) is inconsistent with policy directions agreed for the NDIS to date and would:

·          not address documented weaknesses in the current systems;

·          likely be ineffective given the new operating environment; and

·          lead to unnecessary complexity and inefficiencies.

 

For these reasons it is not considered viable under the NDIS.

 

Similarly, a voluntary approach to quality and safety requirements on the part of suppliers (Option 2 for each component) is not considered appropriate given that this market is created by Government fiat, entirely dependent on government funding, and could lead to a substantial increase in already unacceptable levels of serious harm to participants.

 

The remaining sub-options are evaluated below.

 

Complaints and Serious Incident Management

 

Option A3 (internal and external complaints handling requirements) could provide an effective mechanism for ensuring providers have appropriate internal systems in place and for external resolution of less serious service quality issues.  However, it would not be practical or appropriate for more serious complaints or oversighting serious incidents such as allegations of sexual assault, violence, neglect; or investigating deaths to be dealt with by a non-statutory body.  Accordingly, a separate body would be required to undertake these functions, resulting in a continuation of the fragmentation in the oversight system that has been criticised by several recent inquiries.

 

Although complaints about abuse, neglect and violence are likely to constitute a relatively low proportion of overall complaints, it is expected that these would warrant a more intensive role in many cases.  It would also be sensible for the complaints body to have responsibility for oversight of serious incidents in order to maximise the efficiency and effectiveness of the system. Oversight of serious incidents, combined with regular systematic analysis of the data accumulated, could be expected to lead to a reduction in preventable deaths, serious injuries and other serious adverse incidents through early intervention and support for suppliers.

 

Accordingly, Option A4 (statutory complaints and serious incident function) would provide for an integrated approach to complaints and serious incident management, and would take a risk-based approach to ensuring that organisations have effective internal governance and accountability mechanisms for complaints and serious incidents in place, and appropriate incentives to manage them effectively.

 

Option A3 also assumes a contractual relationship between the external complaints resolution body and suppliers, which may be perceived as a conflict of interest, reducing the confidence of participants in it and potentially the shift to a market environment more generally.  By contrast, an independent statutory body (Option A4) is likely to significantly increase participants’ awareness of and confidence in the complaints and serious incident handling processes.

 

Option A4 is also likely to have a greater impact on improving supplier processes and procedures than Option A3, both through stronger enforcement powers in response to individual complaints, and through its work in identifying and addressing systemic issues.

 

Overall, a statutory complaints function could be expected to reduce consumer detriment by providing cheaper and faster resolution of complaints.  This in turn is likely to empower participants to be more ‘demanding customers’, driving positive change in the system to make it more responsive to their needs.  It should also lead to earlier corrective action by suppliers that will help them retain existing customers and grow their client base without significantly impacting on compliance costs.

 

Accordingly Option A4, a statutory complaints and serious incidents function, is the preferred approach.

 

Worker screening

 

Option B3 (referee and police checks only) represents a reduction in the current level of regulation that applies in several jurisdictions and so is likely to result in a significant increase in serious adverse incidents.  While it represents a better approach than Option B2, its overall benefits, while positive, would be less than those of Option B4, and in the order of a quarter of those of options B5.  Accordingly it is not recommended.

 

Option B5 would be less effective in reducing harm and is unlikely to have a significant deterrent effect.

 

Option B4 (independent risk-based screening) represents the most efficient and effective approach to worker screening as it would have a strong deterrence effect, would reduce the potential for people who pose a risk to enter the sector through upfront rigorous screening, as well as provide a mechanism to remove those proven to pose a risk.  This approach would reduce compliance costs for providers while sending a strong signal about the priority placed on the right of people with disability to be safe.

 

Registration and Code of Conduct

 

Options C1, C2 and C3 provide large gains for suppliers from reduced compliance costs, but at the cost of participant safety.

 

They also provide ‘benefits’ to Government under these options from the reduction in regulatory workload compared to current systems.  In reality, however, this would be more than likely offset by the costs of dealing with complaints and other impacts of the expected 100% increase in serious adverse incidents that would occur (the primary burden of which falls on participants).  This is regarded as unacceptable.

 

Option C4 would go further in ensuring adequate levels of service quality, but was felt not to provide sufficient safeguards in relation to safety.

 

Under Option C5, the National Standards for Disability Services would be given effect through a combination of quality assurance requirements proportionate to risk of the supplier (a function of the supports they provide and the client group they serve), and a code of conduct which would come into play when a complaint is made, or other information such as a serious incident suggests investigation is needed.  The tiered requirements that would apply under this option would provide the most effective approach to safeguarding vulnerable people from harm while also promoting the effective operation of the market, including by giving consumers greater confidence that supports will meet minimum standards.

 

Overall this option could be expected to provide a reduction in serious adverse incidents due to the combination of increased requirements in some jurisdictions, and gains from national consistency which means suppliers do not need to undergo separate certification processes in each jurisdiction.  It also provides significant efficiency gains compared to the current system due to the proposed streamlining of requirements and recognition of equivalent system.  The Code of Conduct would provide an educative mechanism and a safety net for participants in relation to quality and safety, helping to ensure that NDIS objectives are achieved.

 

Option C5 (Quality assurance requirements for some suppliers) is the preferred option.

 

Restrictive Practices

 

Arrangements for NDIS participants who may exhibit behaviours of concern are needed in order to reduce or eliminate the harms these practices can cause participants, as well as ensure an effective market that offers choices to participants.

 

The preferred option, D3 , would put in place a legislative framework that implements the Framework for Reducing and Eliminating Restrictive Practices previously agreed between governments in order to provide greater transparency and accountability.  The legislation would create an office of the Senior Practitioner (or equivalent) to provide practice leadership and clinical governance, promote best practice, and with powers to investigate and make directions.  Suppliers of supports to individuals who require positive behaviour support would be subject to appropriate practice standards in accordance with registration requirements.

 

This approach would provide transparency and accountability on the use of restrictive practices, consistent with the requirements of the National Framework.  Requirements to report regularly on the use of restrictive practices, and scrutiny of reports by Positive behaviour support plan practitioners and the Senior Practitioner would provide a disincentive for inappropriate use of restrictive practices.

 

Accordingly, over time, this option could lead to a significant reduction in the use of restrictive practices, reducing the risk of harm to both participants and workers, and improving the quality of life of participants.

 

Overall impact

 

 

Option 1 (status quo)

Option 2

(no regulation)

Option 3

Option 4

Option 5

A Complaints and Serious Incidents

A1: Maintain current requirements in each jurisdiction

A2 No regulatory requirements

A3: Internal and external complaint handling requirements

A4: Statutory authority oversighting complaints and serious incidents

na

 

B Worker screening

B1: Maintain current requirements

B2 Risk management by employers

B3: Require employers to conduct referee and police checks

B4: Require referee checks + independent risk-based screening (Working with vulnerable people check)

B5: Barred person’s list

C Registration and Code of Conduct

C1: Maintain current requirements

C2: Voluntary Certification

C3: Additional certification

C4: Quality evaluation

C5: Quality Assurance

D  Use of Restrictive Practices

D1: Maintain current arrangements

D2:Registration requirements only

D3: Prohibit use of restrictive practices outside approved Positive behaviour support plans, and require providers to report use against them

na

na

 

 

States and territories have already implemented substantial regulatory regimes with which providers must comply. Moving to a national regime based on best practice approaches allows for the potential elimination and consolidation of existing regulation where possible, and adoption of more efficient and cost-effective approaches.

 

Indicative cost benefit modelling of the measures, summarised in Appendix 2, shows that:

 

·          the preferred package represents the options with the highest net present value in each case;

·          the preferred options are likely to have the biggest impact in reducing serious adverse incidents and other harms in each case; and

·          overall, the cost burden on providers and government of an improved regulatory system are outweighed by the benefits of avoiding harm as a result of the proposals.

 

In particular, the analysis found that reducing serious cases of harm by one per cent would deliver benefits totalling $199 million in Net Present Value terms over 20 years (see Appendix 2).  As the options have subsequently been modified to reduce compliance costs for business and improve effectiveness, the final options are likely to yield significantly higher net benefits.

S ection 7: Implementation and Review

 

The RIS should provide information on how the preferred option would be implemented, monitored and reviewed, COAG Best Practice Guidelines, pg 13

 

The diagram below outlines where it is envisaged the regulatory components of the Framework sit and how they are connected.

                  A        Complaints and serious incidents

Under the preferred approach, internal complaints and serious incident handling system requirements would be assessed as part of the registration process (Option C5 below).

 

The key powers for a statutory complaints body powers would be to:

 

·          receive, investigate and resolve complaints about supports provided to NDIS participants (including self-managing participants using non-registered suppliers);

·          oversight serious incidents, adopting a risk management approach, including providing feedback to suppliers of supports on individual incidents

­    this would include all cases involving fraud; serious unexplained injury; death; allegations of physical or sexual assault of a participant committed by an employee or another participant; and culpable neglect;

·          refer complaints and serious incidents to other agencies for action, including police, other complaints bodies, worker screening units and the NDIS registrar;

·          provide information, education, training and advice about matters relating to complaints and serious incident handling to suppliers of supports and participants;

·          identify and address systemic problems; and

·          report publicly on the number, types and causes of complaints and serious incidents, including prevention strategies.

 

The main focus could be on complaints suggesting that a provider (registered or unregistered) or an individual worker has breached the proposed NDIS Code of Conduct (see Options C5 below). However, people would be able to raise broader issues about service quality, as well as concerns about safety and abuse and neglect.

 

It is proposed that an NDIS Complaints Commissioner will receive and support the resolution of complaints about providers of NDIS-funded supports, receive and investigate serious incident reports, and investigate potential breaches of the NDIS Code of Conduct. The Commissioner will refer matters related to non-compliance with provider standards to the NDIS Registrar, serious incidents related to unmet behaviour support needs to the Senior Practitioner, matters relating to individual staff to worker screening units, and other matters to relevant authorities (such as the police, consumer affairs agencies and other regulatory bodies) as needed.

 

State and territory governments are continuing to operate their existing complaints schemes in transition, but the new system will need to be operational for the full scheme. New South Wales, South Australia and the ACT will reach full scheme in 2018-19, with the remaining jurisdictions reaching full scheme in 2019-20, noting that discussions are still underway regarding the future of disability services provision in Western Australia.

 

To avoid a situation where two complaints systems are operating in parallel, it is proposed that the national complaints handling function would commence in in NSW, SA and the ACT in 2018-19 and in other jurisdictions in 2019-20. Work would also be required in 2017-18 to recruit staff and establish a system for collating complaints and serious incidents.

 

The Commonwealth is giving further consideration to institutional governance options for a complaints handling body. Regardless of the institutional model that is selected, the complaints body will have a presence in each jurisdiction to facilitate local investigation of complaints, however, information will be collated and analysed at a national level in a national office.

 

Worker screening

 

Worker screening unit(s) will have responsibility for screening staff before they enter the workforce and for continuing to monitor whether staff are safe to work with people with disability.  Where relevant, this would include information from the serious incident reporting system (Option A4).

 

The NDIS Registrar will have broad responsibility for design, including determining scope, information to be considered and a decision making framework, and states and territories will maintain operational responsibility for worker screening including the management and operation of worker screening units.

 

Registration

NDIS Registrar

 

The proposed approach would involve establishing an independent NDIS Registrar (or equivalent) function. A key responsibility of the Registrar would be overseeing a quality assurance scheme to determine whether providers of supports meet the NDIS Practice Standards.

 

The NDIS Registrar will have responsibility for registering providers, managing the NDIS Practice Standards and certification scheme, monitoring provider compliance with quality and competency standards, and taking action as required. The Registrar will also monitor, review and report on the effectiveness of the NDIS market of supports, including anti-competitive conduct and early indicators of risk of thin markets and market failure.

 

A key responsibility of the Registrar would be ownership of a quality assurance scheme to determine whether providers of supports meet the scheme quality and competency standards (the NDIS Practice Standards) for registration purposes.

 

Where a supplier is in breach of the NDIS Code of Conduct, or there is a concern brought to the attention of the Registrar of a serious non-compliance issue, the Registrar will have powers to obtain information from a number of sources and decide the appropriate action. The Registrar may impose conditions on a supplier’s registration, impose penalties or as a last resort registration could be revoked.

 

The Registrar would have a range of other roles in order to drive quality improvement and promote safety in the disability sector. Consistent with good regulatory practice, it would inform and empower consumers through awareness of the standards and Code of Conduct. It would also educate suppliers on their obligations and assist them to comply.

 

It would gather intelligence on the performance of the sector through the accreditation scheme and based on patterns of complaints and serious incidents. There would also be a market oversight role for the Registrar, including scrutiny powers in respect of organisations that are providing ‘difficult to replace’ supports, or that have a dominant share of the market in a particular location, or service type.

National Standards for Disability Services

 

The National Standards for Disability Services could be included in the legislation or as a regulatory instrument, and would apply to all registered suppliers of supports under the NDIS.

NDIS Practice Standards

 

Practice Standards will be the benchmark for quality certification of providers. The certification requirements will depend on the scope of the service the provider wishes to offer and the potential risks that may need to be managed to ensure that the supports are both safe and good quality modular and be consistent with the National Standards for Disability Services. The development of the Practice Standards will be oversighted by a group with representation from states and territories, industry groups and representatives of people with disability.

Code of Conduct

 

There will need to be further consultation around the development of the Code.

Transition

 

Suppliers who are already certified under an existing scheme (including state schemes) would not be required to seek certification under the NDIS Practice Standards Scheme until their existing certification expires.

 

Training and accrediting auditors in the Scheme would commence in late 2016.  The scheme will be open to all auditors accredited by JAZ-ANZ or other body.  This will ensure there is a competitive market for auditors which will help to manage the cost impact on suppliers.

 

The supplier will have up to 12 months to obtain certification through a full third party audit.  This certification would be valid for three years, during which time the auditors will perform surveillance audits. At the end of the three year period, suppliers would be required to renew their certification.

 

Restrictive Practices

 

Under the preferred option, registration requirements for those dealing with high risk clients would apply, and the Senior Practitioner would receive, review and report on provider reports on use of restrictive practices; and follow-up on serious incidents that suggest unmet behaviour support needs. The Senior Practitioner will refer concerns about individual worker or provider non-compliance to the Registrar (Option C5). Participants with identified complex behaviour support needs will be assessed by an approved positive behaviour support practitioner, funded through their plans, who will then use the information from the assessment, together with information from other sources (including the participant, family and key providers), to develop a positive behaviour support plan for the participant. Approval to include a restrictive practice in a behaviour support plan will continue to be managed through current state and territory approval processes.

The NDIS Complaints body would be responsible for determining if there has been a breach.  Depending on the circumstances it may refer the incident to the Senior Practitioner who may investigate or appoint a Behaviour Support Practitioner to work with the provider to improve practice in implementing participants’ positive behaviour support plans.   If it is found that there is a persistent concern about a provider the NDIS registrar could, on advice from the Senior Practitioner or complaints commissioner, revoke the provider’s registration.

 

 

 

 

 



 

 

 

Work Flows for an NDIS Complaints Body

 

 

Title: NDIS relevent aspects

Review

 

A review of the NDIS quality and safeguarding framework would commence in mid-2021 (three years after commencement), with a report to be provided to the DRC by mid-2022.  The review will cover the efficiency and effectiveness of the framework in meeting its objectives, any unintended consequences arising from their implementation, and any identify any weaknesses in the regulatory framework.

 



Appendix 1: Proposed NDIS Quality and Safeguarding Framework

 

The measures described in this RIS are part of a larger proposed framework, summarised in the table below.

 

The NDIS Quality and Safeguards Framework

UN Convention on rights of persons with disabilities;

National Disability Insurance Scheme Act 2013

National Disability Strategy 2010-20

 

 

 

DEVELOPMENTAL

Building capability and support systems

 

PREVENTATIVE

Preventing harm and promoting quality

 

CORRECTIVE

Responding if things go wrong

 

 

 

 

 

 

 

 

 

INDIVIDUAL

 

Supporting a nd empowering people with disability

 

 

Building individual capability and decision supports - skills and knowledge

 

Strengthening relationships - families and other support networks

 

Information for participants - Accessible information on how the system works, rights, support types and service quality

 

 

Links to: Information, Linkages & Capacity Building

 

Individual formal safeguards including NDIA risk assessment and management.

 

Links to: Supported and substitute decision-making (Guardianship systems)

 

Advocacy services - externally funded

 

Links to: National Disability Advocacy Framework

 

Supports for self-managing participants - to effectively and safely select and manage their supports.

 

 

 

Universal protections - Protections outside the NDIS (eg. justice)

 

Responding to complaints

 

Serious incident reporting - gathering information and investigating dangerous situations

 

Community Visitors - responding to reports

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

WORKFORCE

Promoting a safe and competent workforce

 

Building a skilled workforce

Links to: Integrated Market, Sector and Workforce Strategy

 

Best practice recruitment/supervision

 

Links to: National Framework for Protecting Australia’s Children

 

Worker screening - ensuring staff are safe to work with people with disability

 

 

Code of Conduct for individual workers (including monitoring through complaints and serious incident reporting systems)

 

 

 

 

 

 

 

SUPPLIERS OF SUPPORTS

Encouraging safe, innovative, high quality support provision

 

Capacity building & best practice

 

 

Links to: Sector Development Fund

 

Reducing restrictive practices - transparency and reporting

·          Links to: National Framework for Reducing and Eliminating Restrictive Practices

 

National Standards for Disability Services, NDIS Practice Standards.

 

Quality Assurance, Regulation and Compliance - proportionate risk-based requirements

 

 

 

 

Code of conduct  - reporting and investigations

 

 

 



Appendix 2: Summary of Cost Benefit Results

 

In order to assess the net social benefits of the proposed regulatory measures in the NDIS Quality and Safeguarding Framework, DSS commissioned the NOUS Group to undertake an Impact Analysis of the proposals set out in the Consultation RIS.  The options modelled were those set out in the Consultation RIS.

 

The data was not included in the text of the RIS as it should be regarded as broadly indicative only, given the poor quality of the base data it relies on, and the difficulty of estimating likely impacts of measures in a dynamic and unpredictable environment.  In addition, it is questionable whether translating serious adverse incidents into monetary terms is appropriate given that this can downplay the real impact of crimes on victims. Nonetheless, the results can provide an indication of the possible scale of impacts of the measures.  Accordingly, some indicative results, reworked to reflect changes in the design of the options made in the light of the consultation and policy development processes, are included here for illustrative purposes.

 

How the impact analysis was undertaken

 

The Impact Analysis involved:

 

  • Collecting and analysing data sources necessary for the impact analysis . Data used included two surveys with responses from 289 providers, administrative data from governments, publically available sources, and expert opinion.
  • Developing a base case of the current regulatory frameworks in each jurisdiction as a yardstick against which the impact of each option can be compared.
  • Conducting a cost-benefit analysis to systematically evaluate the net benefit of each regulatory option.  A dollar value for each safeguard or quality-control mechanism was calculated, and translated into a net present value figure. Where dollar values could not sensibly be calculated, the cost benefit analysis takes this into account. In each case a distribution analysis was undertaken to show how the costs and benefits are distributed among participants, providers and government.
  • A regulatory burden analysis to quantify the costs of current and proposed regulation that fall primarily on businesses. This quantification allows calculations of the degree to which new regulation adds to the regulatory burden, or is offset by reductions in existing regulation.
  • A risk analysis, looking at the likelihood of harm occurring, the consequences of it, and the cost of reducing or eliminating the risk in order to put the proposals into perspective.
  • A competition analysis to assess the degree to which the options would be likely to restrict competition, and therefore to restrict efforts to achieve efficiency and innovation.

 

Overall the impact analysis found that:

 

·       The cost burden on suppliers and government of an improved regulatory system are outweighed by the benefits of avoiding harm as a result of the proposals.  In particular, the analysis found that reducing serious cases of harm by one per cent would deliver benefits totalling $199 million in Net Present Value terms over 20 years.

·       Each of the states and territories has already implemented substantial regulatory regimes with which providers must comply. Moving to an alternative national regime allows for the potential elimination and consolidation of existing regulation, which in turn provides a clear opportunity to offset some or the entire regulatory burden that the Framework might create.

·       In some cases there is scope to combine several elements of the options in order to deliver higher net benefits.



Key assumptions and methodology

 

The analysis is primarily based on:

 

  • administrative data provided by jurisdictions and employer surveys;
  • expert consensus on expected impacts of options, combined with analysis of the research literature.

 

Serious adverse incident data: Administrative data for 2014 calendar year or 2013-14 financial year from five jurisdictions (which ones is not specified) have been used to construct an assumed level of serious adverse incidents. [60]   The adverse events included for this purpose are:

 

  • assault;
  • sexual assault;
  •  neglect  -  defined as failure to attend to a participants basic needs (food, warmth, cleanliness and health) over a sustained period to an extent that significantly endangers the participant's physical or mental health;
  •  Theft;
  •  unsatisfactory service - based on complaints rates.

 

The cost of serious adverse incidents is based on Institute of Criminology cost of crime figures, summarised in the table below.

 

SAE type

Assumed cost

Redress

Assault

$5,265

$7,200

Sexual assault

$12,450

$15,000

Neglect

$5,265

$13,200

Theft

$2,553

$7,200

Unsatisfactory service

$400

$720

 

Base case (Option 1): In each case the effect of the options is compared to a ‘base case’ (ie do nothing) of the regulation that currently applies.  That is, the base case assumes that current state and territory regimes will continue to operate. As each jurisdiction currently has different regimes in place, this means that there are in effect eight different base cases.  In order to produce the model it has been assumed that:

 

·          the combination of formal and informal regulation across jurisdictions has similar impacts overall; and

·          variation across jurisdictions enables an assessment of an assumed 'unregulated state'.

The theoretical unregulated state was developed by iteratively increasing the rate of serious adverse incidents to generate a net present value of zero, on the assumption that governments would not have regulated unless the measure created a positive NPV.

 

Costs: The key costs included in the modelling are administration costs (for government), extrapolated from data provided by jurisdictions, and compliance costs (costs for suppliers of undertaking training, putting in place systems, providing data etc).

 

Benefits: For each option, the expected impact on each type of serious adverse incidents included in the data has been estimated.  The modelling does not generally capture lesser harms or indirect benefits of options.

 

Other key assumptions: For the purposes of the analysis it has been assumed that the full impact of the options is realised in year 0 (2018), and that the number of participants is 460,000. The assumption is that the combination of formal and informal regulation currently employed means that current regulatory regimes are sufficiently similar to allow analysis using all jurisdictions data.  The dollar benefits and costs of each option over 20 years are discounted to take account of the time in which they occur (ie benefits down the track are worth less than those that occur in early years) and converted into a one year current dollar value.  The discount rate used is 7%.

 

Sensitivity analysis

 

In each case the robustness of the results have been tested by varying the key assumptions, namely:

  • instead of a discount rate of 7%, use 3% and 10%
  • vary the assumed rate of change in adverse incidents by plus and minus 5%
  • market flux - variation in number of providers
  • construct a best case scenario based on a 20% higher level of benefits and a 20% lower level of costs
  • construct a worst case scenario based on 10% lower benefits and 20% higher costs.

 

Summary of results

 

In each case NOUS Group estimates have been revised in order to take up suggestions on combinations of options that would maximise Net Present Value, reflect stakeholder suggestions in the consultation process, and the policy development process.  The revised estimates should be regarded as indicative only.

 

Complaints

 

It has not proved possible to adequately quantify the cost and benefits of the complaints function since many of the effects (including deterrence, and productivity gains) are likely to be indirect The final design of the measures has been significantly revised in order to ensure cost effectiveness.

 

 

 

Worker screening

 

Note: Results for options 4&5 have been revised significantly from NOUS Group estimates in the light of further analysis and changes in the design in the options.  In particular, Option 4 includes ongoing monitoring. 

 

Option

Net present value to employers

Net present value to participants

Net present value to government

Overall impact

Option 1: Current regimes

 

$1,692.9m

$656.9m

$1,094.8m

[+$3.44b]

Option 2 (Voluntary)

 

-$159.8m

0

0

-$159.8m

Option 3 (Mandated referee and police checks)

$586.7m

 

 

$270.4m

$453m

+$1.31b

Option 4 (WWVP checks)

 

$2.269m

$1.622.5m

$2716.5m

+$6.25b

 

Option 5 [61] (mandatory reporting & barring)

na

na

na

$1.850

 

Registration and Code of Conduct (including serious incident reporting)

 

Note: In most cases the ‘benefits’ and ‘costs’ are notional changes only.

 

The analysis assumes that under option 1 suppliers ‘voluntarily’ undertake quality evaluation or assurance requirements, and under Options 4 and 5 businesses face additional costs to comply with registration requirements.  This is a notional change only, as suppliers are currently required to meet these costs in order to obtain government funding under existing agreements.

 

In addition, it is assumed that where business compliance costs lead to a lack of service provision in thin markets, the government accrues a ‘benefit’ in terms of avoided costs from not having to pay for participants’ care.  In reality, however, under the NDIS in these cases the NDIA would be required to pay a higher price for services under direct contracting or other arrangements in order to ensure that participants could access the required services. The analysis assumed that 20% of providers would be required to undertake a quality evaluation or assurance.

 

Indicative costs and impacts per year

 

Option

Net present value to suppliers

Net present value to participants

Net present value to government [62]

Net present value

Option 1: Base case (Current regimes)

 

 

 

$1.82b

Option 2: with Code of Code of Conduct applying to unregistered suppliers

$927m

$324.9m

566.4mm

$1.82b

Option 3: Additional conditions tailored to service type

$139.9m

$72m

$66m

$277.8m

Option 4: Independent quality evaluation for certain supplier types

$308.7m

$269m

$233.6m

$811.3m

Option 5: Also require certain suppliers to participate in a quality assurance system

$981m

$403.3m

$844.4m

$2228.7b

 

 

 

Source: NOUS Report, pp 114-115 (Note, Option 4 as now specified combines options 3&4 as recommended in report, plus Code of Conduct for unregistered suppliers, from self-managing options), pg 147-



Appendix 3: Regulatory Costings

 

Regulatory costings for the National Disability Insurance Scheme Quality and Safeguarding Framework are set out in the table below. It is estimated there will be a regulatory saving of $23.185m per annum. This is largely derived from the Provider Registration and Code of Conduct ($16.91m regulatory saving per annum), where the main regulatory saving identified is lower fees for service providers resulting from a streamlined national system where service providers will no longer be required to undergo multiple third-party verification processes. In addition to this, further savings are identified under the Worker Screening option ($10.465m regulatory saving per annum) where the proposed working with vulnerable people checks for disability workers will allow for a nationally consistent system of worker screening that will shift the responsibility for undertaking these checks onto worker screening units as opposed to requiring service providers to obtain and assess police checks themselves. This option would also provide for improved portability of clearances between jurisdictions and hence lead to regulatory savings in contrast to existing arrangements where service providers have to apply for separate clearances in each jurisdiction.

 

These regulatory savings are partially offset by some additional regulatory costs for Complaints and Serious Incident Management ($1.28m regulatory cost per annum) resulting from more stringent serious incident reporting requirements, as well as for Restrictive Practices ($2.91m regulatory cost per annum) resulting from a requirement for all support providers to report each use of restrictive practices (this currently happens only in Victoria and Queensland



Final Regulatory Costings' Impact on Business



 

 

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 (QUALITY AND SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017

 

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

Overview of this Bill

 

The National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (the Bill) establishes an independent national  Commission and Commissioner, to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services under the National Disability Insurance Scheme (NDIS).  This Bill also makes minor amendments in response to an independent review of the National Disability Insurance Scheme Act 2013 (the Act).  The Bill aims to maintain, protect and enhance public trust and confidence in the NDIS; and to support and sustain a robust, vibrant, independent and innovative NDIS market.

In February 2017, the Disability Reform Council released the NDIS Quality and Safeguarding Framework (the Framework) which was developed in consultation with key stakeholders, including people with disability, their families and carers and providers as well as peak bodies.  The Bill is an important step towards implementing the Framework and giving effect to the Commonwealth Government’s regulatory responsibilities under the Framework. 

The Commissioner will be responsible for overseeing quality and safeguards for the full implementation of the NDIS, including information, linkages and capacity building supports for people with disability.  The Commissioner will also oversee quality and safeguards in relation to other programs prescribed under the NDIS Rules.  For example, Commonwealth- funded advocacy services and the Commonwealth Continuity of Support (CoS) Program - Specialist Disability Services for Older People which will be provide continuity of support for older people with disability who are currently receiving specialist disability services but who are not eligible to be NDIS participants.  Providers of supports under these programs will be covered by the Framework and this Bill. 

The Bill establishes compliance, complaints and risk management arrangements for the registration and regulation of NDIS providers, including practice standards, a code of conduct and mechanisms for complaints and reportable incidents.  The Commissioner will also be responsible for national oversight and policy setting in relation to worker screening and behaviour support, with the aim of reducing and eliminating restrictive practices. 

The proposed amendments mean that people with disability, their families and carers will have a single body to raise concerns about the quality of supports or services.  The Commission will also be the source of nationally consistent and transparent information about registered NDIS providers, including for example, what supports they are registered to provide, whether the provider has been subject to any compliance or enforcement action and contact details for those providers.

Disability services delivered through other service systems, such as health, education and justice, will continue to be covered by existing quality and safeguards arrangements for those systems.  Universal complaints and redress mechanisms, including police, fair trading bodies, professional and industry bodies, consumer protection laws and other regulatory and complaints systems will continue to be available to both NDIS participants and people with disability outside the NDIS.  The complex interface with mainstream services will be managed by effective information sharing arrangements between the Commission, the National Disability Insurance Agency (the Agency) and State, Territory and other Commonwealth regulatory bodies in the course of regulating NDIS providers.

This Bill will further the objects and principles of the Act and support the capacity of people with disability to exercise informed choice and control in the planning and delivery of supports and services under the NDIS.  For providers, the new national system will enable a single registration and regulatory system across participating jurisdictions, reducing duplication and providing national consistency.

Background

In 2013, after the 2011 Productivity Commission Disability Care and Support inquiry report found that ‘current disability support arrangements are inequitable, underfunded, fragmented and inefficient, and give people with a disability little choice’ (Overview, p. 5), the Parliament of Australia established a national disability insurance scheme through the Act.

The amendments in this Bill are an important step in giving effect to the commitment by the Commonwealth, State and Territory governments to protect people with disability from harm arising from poor quality or unsafe supports provided under the NDIS.  The amendments will also improve the operation of the Act in working towards the full implementation of the NDIS which will see 460,000 Australians become participants in the NDIS by 2020.

The NDIS represents a departure from traditional arrangements for providing government-funded disability services in Australia.  It is a cooperative venture, with the Commonwealth, States and Territories operating as partners under the umbrella of COAG.  It was in the spirit of this cooperation that the Framework was developed and released to the public in February 2017.

Prior to the NDIS, disability services were provided under funding agreements, which enabled governments to manage quality and safeguards largely through contract management.  Over time the NDIS will change the dominant disability service funding model from a block-funded, grant-based system to a demand-driven market-based approach. 

Quality and safeguards arrangements vary between State, Territory and Commonwealth funded services.  There is fragmentation within and between systems and a series of recent inquiries and reports have documented the weaknesses of the current safeguarding arrangements for disability services.  These inquiries include the recent Senate Inquiry into Violence, Abuse and Neglect against People with Disability, two recent Victorian inquiries, and the Royal Commission into Institutional Responses into Child Sexual Abuse.  The inquiries have found failures to uncover and report abuse, inadequate screening of workers, and dislocated regulatory arrangements.  The current system, if continued in the longer term, will pose a significant risk to ensuring quality supports and participant safety, particularly in an immature and rapidly developing NDIS market.

On full implementation of the NDIS, the Commonwealth will assume responsibility for the operation of the NDIS and, with it, the majority of the financial and reputational risks associated with the NDIS.  The risks are considerable. The NDIS market is rapidly expanding and services are being delivered to a vulnerable group of Australian people, in relation to whom, recent inquiries have revealed existing widespread abuse in the sector.

A new, nationally consistent approach to quality and safeguards is the key strategy to mitigate the risks.  It is required to ensure the new market-based system delivers supports and services safely to people with disability, are of an appropriate standard and are delivered in a way that promotes choice, control, dignity, and upholds basic human rights. 

This Bill is intended to balance the need to provide appropriate protections that meet the Commonwealth’s obligations in relation to the regulation of NDIS funded supports and services, with the need to respect the dignity and decisions that participants make in pursuing their goals .  It is also intended to suit an emerging market-based system, in which participants are building their capability to act as informed ‘consumers’, the workforce is growing rapidly, and new providers are regularly entering the market with innovative ideas and different models of providing supports and services.

This Bill complements and strengthens existing measures to remove discrimination against people with disability in Australia, and to provide them with support and assistance, such as the Disability Discrimination Act 1992 , the provision of income support through the Disability Support Pension, Carer Payment and Carer Allowance, the National Disability Strategy and the National Disability Agreement.



 

The National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017

This Bill has two Schedules:

·          Schedule 1 establishes the NDIS Quality and Safeguards Commission and will be progressively enacted in State and Territory jurisdictions, similar to the staggered NDIS rollout.

·          Schedule 2 sets out the agreed amendments resulting from an independent review of the Act, which was completed in late 2015. The aim of the review was to ensure that the Act is operating in a way that is effective for the purposes of the full implementation of the NDIS.

Consultation - the Framework

The Framework was developed collaboratively by the Commonwealth, State and Territory governments.  Governments developed a consultation paper, followed by a range of meetings and workshops with stakeholders, providers and the public.  The Commonwealth Department of Social Services received 220 submissions and 585 questionnaire responses.

A consultation draft of Schedule 1 to this Bill was circulated amongst governments and peak bodies representing people with disability and service providers.

Consultation - Independent review of Act

The independent review of the Act’s operation was undertaken by a professional consultancy firm, Ernst and Young.  In the course of conducting the review, the reviewers consulted with stakeholders in a public submission process (receiving 86 submissions) and held targeted interviews with over 100 representatives from government and peak bodies.

Following the review, Ernst and Young provided a report to the Minister for Social Services, containing 33 recommendations, many of which require amendments to the legislation underpinning the NDIS.  The Minister provided a copy of it to COAG, which provided its views on the recommendations in a formal response.  The Department of Social Services consulted with States, Territories and the National Disability Insurance Agency, releasing a consultation paper and seeking feedback, prior to finalising the amendments outlined in Schedule 2 to this Bill.

Human rights implications

The Bill advances the protection of the rights of people with disability in Australia consistent with the Convention on the Rights of Persons with Disabilities (CRPD) and engages the following rights under international human rights law:

·          the rights of people with disabilities in the CRPD, especially Articles 3, 4, 8, 11, 12, 13, 16, 17, 19, 20, 21, 22, 26, 28, 30 and 31;

·           Articles 23 and 34 of the Convention on the Rights of the Child (CROC);

·          Articles 6, 7(b) and 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and

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

The Bill provides for information gathering and disclosure powers which limit the right to privacy under article 22 of the CRPD and article 17 of the ICCPR but those limitations are considered to be proportionate and subject to detailed consideration below. 

General principles underpinning the CRPD

The Convention on the Rights of Persons with Disabilities (CRPD) recognises the barriers that people with disability may face in realising their rights.  While the rights under all human rights treaties apply to everyone, including people with disability, the CRPD applies human rights specifically to the context of people with disability.

Article 4(3) of the CRPD states that ‘in the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, State Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organisations’.

The preamble of the CRPD, and the general principles and obligations set out in Articles 3 and 4 reflect the need for the respect for the inherent dignity, individual autonomy (including the freedom to make one’s own choices and the independence of the person), the need for people with disability to be able to participate fully and effectively and be included in society, the need for respect for difference and acceptance of people with disability as part of human diversity and providing people with disability the opportunity to be involved actively in decision-making processes about policies and programmes, including those directly concerning them.

CRPD rights positively engaged by the Bill

The establishment of the NDIS promotes the rights of people with disability in Australia by providing access to nationally consistent funding and support to help them realise their aspirations, and to participate in the social and economic life of the community. 

The relevant human rights which are promoted are those related to the provision of services through the NDIS including the rights of persons with disability to live independently and be included in the community (CRPD, article 19), to personal mobility (article 20), to enjoy the highest attainable standard of health (article 25), to habilitation and rehabilitation (article 26) and to an adequate standard of living for themselves and their families (article 28).

Schedule 1 of the Bill

Objects, functions and principles

The establishment of the Commission and Commissioner (new Chapter 6A, Parts 1 and 2) promotes the rights of persons with disability consistent with Australia’s obligations, by ensuring that the supports and services provided through the NDIS are as safe and effective as possible

The general objects and principles of the Act in sections 3 and 4 align closely with the CRPD principles and will underpin the activities of the Commission and the Commissioner.  The amendments contained in Schedule 1 of the Bill are also closely aligned with the existing objects of the Act in section 3.  In particular, it will:

  • enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports (subsection 3(1)(e));
  • facilitate the development of a nationally consistency approach to the access to, and the planning and funding of, supports for people with disability (subsection 3(1)(f)); and
  • promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the community (subsection 3(1)(g)).

 

A new object to be inserted into section 3 of the Act will be to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS (new subsection 3(1)(ga)).

In performing his or her functions, new subsection 181D(3) provides for the Commissioner to have regard to the interests and needs of persons receiving, or eligible to receive, supports or services under the NDIS.

New subsection 181D(4) requires the Commissioner to use his or her best endeavours to provide opportunities for persons with disability to participate in matters that relate to them and for the Commissioner to take into consideration their wishes and views.

Additionally, the Bill stipulates that, if actions or decisions are required to be made on behalf of others, the following principles apply and will extend to activities of the Commissioner:

·          people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves;

·          people with disability should be encouraged to engage in the life of the community;

·          the judgements and decisions that people with disability would have made in relation to the act or thing should be taken into account;

·          the cultural and linguistic circumstances of people with disability should be taken into account; and

·          the supportive relationships, friendships and connections with other people with disability should be recognised.

Registration and regulation of NDIS providers

The arrangements in respect of the registration of NDIS providers, including imposing conditions on, suspending or revoking their registration (new Part 3A, Division 1A as well as Division 7), the NDIS Practice Standards (Division 3), the NDIS Code of Conduct (Division 4) and the compliance and enforcement provisions (Division 8), are necessary measures to ensure the protection and safety of people with disability in situations of risk (CRPD, article 11).  The NDIS Code of Conduct will apply to all providers, regardless of whether they are registered and will be used to prevent exploitation, violence and abuse of people with disability by providers and workers.

CRPD article 16(3) also obliges State Parties to ensure that, in order to prevent the occurrence of all forms of exploitation, violence and abuse, all facilities and programmes designed to serve persons with disability are effectively monitored by independent authorities.

Information management

The power of the Commissioner to collect information to ensure the integrity of the NDIS as well as provisions protecting that information, including the creation of offences (new section 55A, Part 1, Division 2), promote the rights of persons with disability consistent with Australia’s obligations by enabling the exchange of information to ensure that supports and services provided through the NDIS are as safe and effective as possible.  These amendments are considered in further detail below to the extent to which they may limit the right to privacy under article 22 of the CRPD and article 17 of the ICCPR.

Complaints and incident management

The establishment of the Commission will enable anyone including Australians with disability and their families and carers to make complaints about NDIS supports and services and report incidents that impact on the quality and safety of supports.

The Commissioner will have monitoring, investigation and enforcement powers including compliance notices, infringement notices, civil penalties, court enforceable undertakings, injunctions, registration suspension and revocation and ban orders.

In respect of the complaints management and resolution (Division 5) and incident management provisions (Division 6), those provisions implement or aim to implement the obligation on State Parties to take all appropriate legislative and other measures to protect persons with disabilities from all forms of exploitation, violence and abuse (CRPD, article 16(1)) and to ensure that instances of exploitation, violence and abuse against persons with disability are identified, investigated and, where appropriate prosecuted (article 16(5)).

The amendments which enable complaints including the complaints management and resolution scheme (new section 73X) and the Commissioner’s complaints function (new section 181G) are formulated to ensure compliance with article 13 of the CRPD.  This requires that persons with disabilities have effective access to justice on an equal basis with others.

The Bill also includes ‘whistle blower’ protections for certain persons who make a disclosure in relation to an NDIS provider.  Persons protected include a person with disability who is receiving a support or service from an NDIS provider, and a nominee, family member, carer or significant other of that person.  This protection ensures that a person is not victimised because they have made a disclosure in relation to an NDIS provider.  In particular, victimisation includes a provider interrupting or detrimentally altering the service or support it provides to a person with disability. 

 

Behaviour support functions

The functions of the Commissioner in relation to behaviour support and the reduction and elimination of the use of restrictive practices (new section 181H and Division 2 of Part 3A) is considered in further detail below.

Children

Article 23 of CROC recognises the rights of children with disability.  The CRPD applies to children; however, a child with disability has additional rights under CROC.  In this context, Article 34 of CROC requires that children be protected from sexual exploitation and sexual abuse and in addition, Article 19 requires that children who are under the care of family or other people are protected from a number of kinds of abuse.  As the NDIS is designed for both people with severe disability and people - including children - who require early intervention to prevent them developing a severe disability later in life, NDIS participants who are children will also be protected by the safeguards provided for in Schedule 1 to this Bill.

Schedule 2 of the Bill

The proposed amendments to the Act in Schedule 2 of this Bill also serve to advance the rights of people with disability in strengthening and clarifying the operation of the Act and the NDIS.

Detailed consideration of rights engaged by Schedule 1

Commissioner’s functions in relation to behaviour support and the reduction and elimination of restrictive practices

The reduction and elimination of restrictive practices engage the following rights:

•               the right to equal recognition before the law and to exercise legal capacity in article 12 of the CRPD;

•               the right of persons with disabilities to physical and mental integrity on an equal basis with others in Article 17 of the CRPD;

•               the right to liberty and security of the person in Article 9 of the ICCPR, Article 5 of the Convention on the Elimination of Racial Discrimination (CERD), Article 37 of the CROC, noting Australia has a reservation to Article 37(c), and Article 14 of the CRPD (noting Australia has a reservation);

•               the right to freedom from exploitation, violence and abuse in Article 16 of the CRPD; and

•               the protection against cruel, inhuman or degrading treatment or punishment in Article 7 of the ICCPR, Article 37 of the CROC and Article 15 of the CPRD.

 

Article 14(1) of the CRPD provides that State Parties shall ensure that persons with disabilities, on an equal basis with others, enjoy the right to liberty and security of person and ‘are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that the existence of a disability shall in no case justify a deprivation of liberty’.  Article 14 of the CRPD has similarities to aspects of article 9 of the International Covenant on Civil and Political Rights (ICCPR).

The United Nations Committee on the Rights of People with Disabilities (UNCRPD) has expressed concern about the unregulated use of restrictive practices and recommended that State parties take immediate steps to end such practices.  Consistent with the CRPD, Commonwealth, State and Territory Governments endorsed the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector in 2014 (the Restrictive Practices Framework).

The Restrictive Practices Framework outlines high-level guiding principles (such as human rights and a person-centred approach), and core strategies, including use of data to inform practice and workforce development.  These principles and strategies underpin the approach taken in the NDIS Quality and Safeguarding Framework. The establishment of the Commissioner’s behaviour support functions will align with the commitment of all Australian governments to reduce and eliminate the use of restrictive practices in disability services and with Australia’s obligations under the CRPD and ICCPR.

The implementation of the Commissioner’s behaviour support functions through this Bill will assist Australia in meeting these obligations in the context of the NDIS by providing for nationally consistent regulatory and registration arrangements for providers engaged in developing and implementing behaviour support plans including those which may include a restrictive practice (new section 181H and Division 2 of Part 3A). 

New section 181H outlines the functions of the Commissioner to provide leadership in behaviour support, and in the reduction and elimination of the use of restrictive practices, by NDIS providers, including by:

·                      building capability in the development of behaviour support through:

 

o    developing and implementing a competency framework for registered NDIS providers whose registration includes the provision of behaviour support assessments and developing behaviour support plans; and

 

o    assessing the skills and experience of such providers against the competency framework; and

 

·                      developing policy and guidance materials in relation to behaviour support and the reduction and elimination of the use of restrictive practices by NDIS providers; and

 

·                      providing education, training and advice to promote the use of behaviour supports and to reduce and eliminate the use of restrictive practices; and

·                      overseeing the use of behaviour support and restrictive practices by;

 

o    monitoring registered NDIS provider compliance with the conditions of registration relating to behaviour support plans; and

 

o    collecting, analysing and disseminating data and other information relating to the use of behaviour supports and restrictive practices by NDIS providers; and

 

·                      undertaking and publishing research to inform the development and evaluation of the use of behaviour supports and to develop strategies to encourage the reduction and elimination of restrictive practices by NDIS providers.

 

Restrictive practices are defined to mean any intervention that has the effect of restricting the rights or freedom of movement of a person with disability. This includes the use of seclusion, as well as chemical, mechanical and physical restraint, psycho-social and environmental restraints, and consequence driven practices (usually involving withdrawal of activities or items) .

These functions will be implemented largely through the registration arrangements for providers (Division 2 of Part 3A). 

Behaviour support practitioners who will be engaged in the development of behaviour support plans will be required to meet the competency framework established by the Commissioner.  Behaviour support practitioners, and any providers implementing an authorised restrictive practice under a behaviour support plan, will be required to be registered under the rules to be developed for new section 73B.

Where a behaviour support practitioner is registered to develop a behaviour support plan for a participant and the plan includes the use of restrictive practices, the restrictive practice will need to be authorised through the relevant State or Territory system.  The Commissioner will not have any role in authorising the use of restrictive practices; rather he or she will have a monitoring, oversight, reporting and clinical leadership role in promoting the use of behaviour supports and the reduction and elimination of restrictive practices.

As part of the registration process, practice standards (new section 73T) will require providers to ensure that workers are appropriately trained to deliver the supports in line with a behaviour support plan.

Providers implementing behaviour support plans that contain a restrictive practice will be required to lodge those plans with the Commissioner (new section 73H).  In addition providers will also be required to submit any interim or short term plans that contain restrictive practices.

As part of their conditions of registration, providers will be required to comply with relevant state or territory authorisation or consent processes in relation to the use of restrictive practices.

Providers will be required to report any use of a restrictive practice to the Commission (new section 73H).

Any unauthorised use of a restrictive practice, including emergency use, will be required to be reported to the Commission as a reportable incident (new section 73Z(4)).

Oversight of behaviour support and use of restrictive practices

The Commission will provide leadership in behaviour support through guidance, education and advice to the sector, the Agency, NDIS participants and their families and carers, with a view to building capability in behaviour support and reducing and eliminating the use of restrictive practices.

To inform and implement this function the Commission will collect information and data from relevant persons and bodies, analyse this information to identify patterns, trends and anomalies in the use of behaviour supports and restrictive practices and report on the use of restrictive practices to the Ministerial Council, including policy issues and recommendations.

Any information indicating provider non-compliance with the law and associated registration requirements regarding behaviour support and the use of restrictive practices may invoke a regulatory response including investigation, referral to police and sanctions such as suspension or revocation of registration.

Information sharing arrangements discussed below will enable a co-ordinated regulatory response and protection and support for people with disability.

Over time the Commission will build up significant information about what is happening across Australia in terms of the authorisation and use of restrictive practices in the NDIS.  It will have an important leadership role in working with states and territories to improve existing arrangements to reduce and eliminate such practices.

Information gathering and disclosure powers

Article 22 of the CRPD provides that no person with disability, regardless of place of residence or living arrangements, shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence or other types of communication, or to unlawful attacks on his or her honour and reputation.  It also provides that the privacy of personal, health and rehabilitation information of people with disability should be protected on an equal basis with others.  This right contains similar protections to those in Article 17 of the ICCPR.

Under new section 55A, the Commissioner will have the power to obtain information from persons on reasonable grounds provided that it is relevant to certain enumerated matters for example, whether a registered NDIS provider is meeting conditions of registration or complying with the NDIS Code of Conduct. Under new subsections 56(4) and (5), a person may be required to appear before a specified officer to answer questions.  Refusal or failure to comply with a requirement to give information to the Commissioner will be an offence under subsection 57(1).

The Bill includes the following safeguards:

•               Under subsection 56(1) the Commissioner will be required to give written notice of the requirement to give information;

•               New section 67A sets out the limited circumstances in which a person may make a record of, disclose or use Commission information;

•               New sections 67B - 67D create offences for unauthorised access to, use or disclosure of, soliciting disclosure of and offering to supply Commission information;

•               New section 73AA sets out disclosures qualifying for protection and new section 73AB sets out when a disclosure will not be actionable;

•               The Commissioner will not be able to make any disclosures without NDIS rules having been made for the purposes of new section 67F; and

•               New section 67G protects certain documents from production to court except for the purposes of the Act.

 

These powers engage the right to protection against arbitrary and unlawful interferences with privacy found in article 17 of the ICCPR and article 22 of the CRPD.  Consistent with the provisions of article 31 of the CRPD, relating to statistics and data collection, information may be disclosed or used for the specific purposes provided under the legislation, or under the NDIS rules to be made for the purposes of the Act (new section 67A).

The legitimate object of these amendments is to ensure that the Commissioner has access to information in response to allegations of provider non-compliance to be able to take immediate action to ensure the safety of people with disability and the quality of NDIS supports.  The amendments enable appropriate safeguards to be applied in relation to the handling of sensitive information.

The amendments are necessary to provide a mechanism for the Commissioner to gather relevant information, particularly in relation to unregistered providers in response to allegations or information that a provider is not complying with its obligations.  Without the amendments, the Commissioner will not be able to fulfil its object to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS.

The amendments include protections to encourage the appropriate use of information and ensure that such information is not used for personal or other gain.  Information provided and stored in Commission records about a person is defined to be protected Commission information (section 9).  The stringent conditions attached to the treatment of protected Commission information under this Bill also serve to support and protect the right to privacy under the CRPD and ICCPR.

New subsection 67E(1) enables the Commissioner to disclose information if he or she is satisfied on reasonable grounds that it is necessary in the public interest, to such persons and for such purposes as the Commissioner determines.  New section 67F will set up rules to guide the Commissioner in the exercise of this disclosure power which will themselves include safeguards. The Commissioner cannot make any disclosures without NDIS rules having been made for the purposes of new section 67F.

The Commission will receive information from a variety of sources about potential abuse, neglect or exploitation of people with disability.  That information may reveal abuse which is happening outside the context of NDIS supports and services and require co-ordination with the family or carers of people with disability or relevant Commonwealth and State and Territory bodies.

Recent inquiries into abuse have emphasised that system-level oversight is required to ensure reportable incidents are thoroughly investigated, responses are co-ordinated, and systemic issues are identified and addressed.  The Commission will need to work with mainstream systems within States and Territories including child protection agencies and guardianship boards when it receives information about abuse, neglect or exploitation.  The mainstream systems in States and Territories which are responsible for responding to allegations of neglect and abuse vary considerably and will further change with the establishment of the Commission.

The legitimate object of these amendments is to ensure that the Commission can share information to enable the thorough investigation and co-ordinated response in relation to a reportable incident or allegation of abuse or neglect.  The Commissioner will be operating within the context of complex mainstream services including bodies responsible for acting on information that may indicate a serious threat to an individual’s life, health or safety.  As each State and Territory transitions from existing disability safeguarding arrangements, it is necessary to ensure that appropriate information gathering and disclosure provisions can operate to take immediate action to protect vulnerable people at risk. 

The amendments are a necessary, reasonable and proportionate approach to achieving the legitimate objective for a number of reasons.

The amendments are proportionate as the Commissioner must be ‘satisfied on reasonable grounds’ that a disclosure is necessary in the public interest.  Including an element of reasonableness mitigates the risk that this provision will operate in a manner that is inconsistent with international human rights law.  The rules will enumerate specific bodies and purposes for which the Commissioner may disclose information in the public interest and include limitations on the further use and disclosure of such information.  Further laws exist to protect information when it is received by the Commission or disclosed in the public interest.  Most NDIS providers are covered by the Privacy Act 1988 (Cth) as they would fall within the definition of a health service provider.  The Privacy Act 1988 (Cth) protects privacy by regulating the collection, use and disclosure of personal information, including health information and state and territory privacy laws and guidelines further operate to protect privacy.  Importantly, this means that any party or agency to which information will be disclosed has its own legal obligations concerning the collection, storage and use of personal information.

Review of Decisions

Article 12(4) of the CRPD requires signatories to the CRPD to ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law.  Such safeguards shall ensure that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person, are free of conflict of interest and undue influence, are proportional and tailored to the person's circumstances, apply for the shortest time possible and are subject to regular review by a competent, independent and impartial authority or judicial body.  The safeguards shall be proportional to the degree to which such measures affect the person's rights and interests.  This is relevant also to NDIS providers to ensure that decisions made that may adversely affect the provision of supports to a number of NDIS participants (for example, by banning a provider from providing a certain support to them) are made fairly and reasonably.

Schedule 1 to this Bill provides additional rights under the Act for review of decisions in relation to NDIS providers.  These additional reviewable decisions are:

·          a decision to refuse to register a person as a registered NDIS provider;

·          a decision to impose conditions to which a person’s registration as a registered NDIS provider is subject;

·          a decision to vary, or refuse to vary, the registration of a registered NDIS provider;

·          a decision to suspend the registration of a registered NDIS provider;

·          a decision to revoke, or not to revoke, the registration of a person as a registered NDIS provider;

·          a decision to make a banning order;

·          a decision to vary, or to refuse to vary or revoke, a banning order; and

·          a decision to give a compliance notice to an NDIS provider.

Written notice of a person’s review rights must be given to NDIS providers when a reviewable decision is made, as well as details of how to request a review.  The reviewer must not have been involved in the original decision, and must confirm the original decision, vary it, or set it aside and substitute a new decision.  The legislation provides a further avenue of review to the Administrative Appeals Tribunal.

Worker screening

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

The right to work is engaged by new subsection 181F of the Bill which provides for the Commissioner to monitor registered NDIS provider compliance with their conditions of registration, including in relation to the screening of workers. 

A core function of the Commissioner in new paragraph 181E(f) is to develop and oversee the broad policy design for a nationally consistent approach to the screening of workers involved in the provision of supports and services to people with disability under the NDIS.

The function of screening workers will remain with States and Territories.  It is envisaged that the national approach to be developed will require people who provide NDIS supports that entail more than incidental contact with a participant will be required to undergo and pass worker screening to be able to deliver supports to NDIS participants.  A registered NDIS provider will be required to ensure that its workers have undergone the necessary screening processes as part of their registration requirements. 

The legitimate object of these amendments is to support the rights of people with disability by ensuring they have access to quality and safe supports and services under the NDIS.  A nationally consistent approach to worker screening is an important element of this system that minimises the risk of harm to people with disability from the people who work closely with them.  While the primary responsibility for recruiting and providing a safe environment for people with disability rests with employers (including sole traders and self-employed), a worker screening outcome is one source of information that can support employers in fulfilling this responsibility.

The purpose of nationally consistent and recognised worker screening includes:

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

•               reducing the potential for providers to employ workers who pose a high risk of harm to people with disability;

•               prohibiting those persons, that pose a high risk or are proven to have harmed vulnerable people, from working in the sector; and

•               deterring individuals who pose a high risk of harm from seeking work in the sector.

 

The NDIS worker screening policy including information sources to be considered by State and Territory worker screening units, will take into account the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, Working with Children Checks Report .  This recognises that NDIS participants are amongst the most vulnerable people in the community and also that people with disability have the right to be protected from exploitation, violence and abuse.

Under the Framework and Schedule 1 to this Bill, the Commission will have oversight and broad policy responsibility for worker screening for people who provide support to NDIS participants.  The amendments are a reasonable, necessary and proportionate approach to achieving the objective.  A person is not prevented from choosing to work in the NDIS market, but they will have to show they are suitable for certain high-risk work with the most vulnerable people with disability.

Conclusion

 

The National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 is compatible with human rights because it advances the protection of human rights.  In particular, Schedule 1 to this 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.

The proposed amendments to the Act in Schedule 2 of this Bill also serve to advance the rights of people with disability in strengthening and clarifying the operation of the Act and the NDIS.

In addition to the Commission addressing complaints and reportable incidents, there are a number of other bodies who act as an independent voice promoting the rights of people with disability and resolving complaints about disability services.  The Commission will be working closely with the range of these organisations to collectively address quality and safety issues in the NDIS.

 

To the extent that this Bill limits human rights in some circumstances, those limitations are reasonable, necessary and proportionate to ensure the long term integrity, safety and sustainability of the NDIS.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[Circulated by the authority of the Minister for Social Services, the Hon Christian Porter MP]




[1] Harper Report on Competition Policy Review, Chapter 12, 31 March 2015 ; Government  response, November 2015.

[2] NOUS Group, NDIS quality and safeguarding framework: Impact analysis report, July 2015, pp 111.

[3] Productivity Commission, Disability Care and Support Report , pp 438.

[4] Ibid, pp 434

[5] http://www.ndis.gov.au/document/outcomes-framework-pilot

[6] See Appendix 1.

[7] Telecommunications Consumer Protections Code - Regulation Impact Statement - Australian Communications and Media Authority, 11 July 2012.

[8] The Victorian Parliamentary Inquiry noted that the complaint rate in Victoria, for example, which has actively promoted idea that it is ‘alright to complain’ is around 10%. [Other jurisdictions data]

[9] Queensland Office of the Public Advocate, Upholding the Right to Life and Health: a review of the deaths in care of people with disability in Queensland , March 2016; NSW Ombudsman, Report of Reviewable Deaths in 2012 and 2013 volume 2: Deaths of people with disability in care, June 2015.

[10] ALRC

[11] ALRC 124, chapter 8.

[12] http://www.scientificamerican.com/article/antipsychotic-drugs-often-given-to-intellectually-disabled-in-absence-of-mental-illness/

[13] See also Hartford Courant Investigative Report, 1999.

[14] Wynn (2003), cited in https://www.psychology.org.au/Assets/Files/Restrictive-Practices-Guidelines-for-Psychologists.pdf

[15] Australian Psychological Society paper “Evidence-based guidelines to reduce the need for restrictive practices in the disability sector”.

[16] The Discussion Paper suggested that the figure could be in the order of 8,000-9,000 individuals, based on data from the Victorian system.  Subsequent audits of services suggests that this may be a significant underestimate.

[17] See Report, chapter 2: http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Violence_abuse_neglect/Report

[18] See for example Sally Robinson and Leslie Chenowith, Understanding emotional and psychological harm of people with intellectual disability: an evolving framework, http://www98.griffith.edu.au/dspace/bitstream/handle/10072/47425/80101_1.pdf?sequence=1; D. Woodlock, et al, ‘Voices Against Violence: Paper 6: Raising Our Voices - Hearing from with Women with Disabilities.’ Women with Disabilities Victoria, Office of the Public Advocate and Domestic Violence Resource Centre Victoria, 2014

[19] For a discussion of the basis for the estimates and other key assumptions used in the cost-benefit analysis, see Appendix 1.

[20] Senate Report, ch 3

[21] Recommendation 2 and chapter 12.

[22] See especially Report of the Senate Inquiry into Violence, Abuse and Neglect against People with Disability, esp ch 8; Victorian Disability Services Commissioner, Beyond doubt: the experiences of people with disabilities reporting crime , July 2014; Victorian Parliament, Inquiry into Disability Services , Interim Report, July 2015.

[23] Recommendation 2; Chapter 12.

[24] Although some jurisdictions have already or are in the process of amending their enabling legislation for the purposes of managing the period of transition to the NDIS.

[25] Phase 1 Report, 24 June 2015.

[26] Senate Community Affairs Committee, Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability , 25 November 2015, chapter 5.

[27] Senate inquiry Report, chapter 5.31

[28] See in particular the Victorian Ombudsman’s Phase 2 Report, and the Senate Inquiry Report.

[29] See for example ALRC, DP 81, Equality, Capacity and Disability in Commonwealth Laws; Victorian Equal Opportunity and Human Rights Commission, Beyond doubt: the experiences of people with disabilities reporting crime, July 2014.

[30] See for example ACCC Submission to the Harper Inquiry; Patrick Xavier, Behavioural Economics and Customer Complaints in the Communications Industry, A Report prepared for ACMA, 2011; UK Legal Ombudsman, The Business Case for good Complaints Handling in Legal Services, Report, 2013; Claes Fornell and Birger Wernerfelt, A Model for Customer Complaint Management, Marketing

Science, vol 7 (3), Summer 1988, 297-298; Piangham Liang, Exit and Voice: An Economic Theory of Complaint Management, SSRN, 2010.

[31] In Australia the Telecommunications Ombudsman function was introduced in response to the Industry's own recognition of this: https://www2.le.ac.uk/departments/law/research/cces/documents/Complainthandling-PrinciplesandBestPractice-April2007_000.pdf.  Similar mechanisms have been introduced in a  number of  other industries.  Se also UK Department of Business Innovation and Skills, Alternative Dispute Resolution for Customers, March 2014.

[32] AS ISO 10002-2006.  An example of specific requirements based on it can be found in the Telecommunications Consumer Protections Code, 2015: http://www.commsalliance.com.au/__data/assets/pdf_file/0019/50914/TCP-C628_2015-FINAL.pdf

[33] https://www.tio.com.au/about-us

[34] May 2016, see especially Chapter 7.

[35] New complaint numbers fell from 193,702 in 2011-12 to 124,417 in 2014-15, TIO Annual Report.

[36] Oral advice, 22 March 2016.

[37] The NSW Ombudsman's Annual Report 2014-15 noted that between 3 December 2014 and 30 June 2015, the Ombudsman received 350 reports of disability serious incidents, and 21 complaints relating to reportable serious incidents.

[38] Senate Submission, pg 8 -9

[39] Report of the NSW Ombudsman, More than board and lodging: the need for boarding house reform — Special report to Parliament , October 2011; Disability Services Commissioner (Vic), Safeguarding people’s right to be free from abuse: key considerations for preventing and responding to alleged staff to client abuse in disability services , Learning from Complaints Occasional Paper No. 1,June 2012; Victorian Equal Opportunity and Human Rights Commission, Beyond doubt: the experience of people with disabilities reporting crime — Research findings, July 2014; SA Health and Community Complaints Commissioner, Report on HCSCC’s role in contributing to improving the safety and quality of disability services provided to vulnerable people , March 2013; The Royal Commission into Institutional Responses to Child Sexual Abuse, Interim report, July 2014; Victorian Ombudsman, Reporting and investigation of allegations of abuse in the disability sector: Phase 1 - the effectiveness of statutory oversight, June 2015; Parliament of Victoria, Inquiry into Abuse in Disability Services, Interim Report , August 2015; Australian Senate, Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability,  November 2015 .

 

[40] Vic Parliamentary Report, pg 13.  Victoria subsequently introduced a worker exclusion scheme for accommodation services.

[41] NOUS Group, Impact Analysis Report.

[42] Literature review prepared for the Royal Commission on Institutional Responses to Child Abuse,  Parenting Research Centre and University of Melbourne, Scoping Review: Evaluations of Pre-employment Screening Practices , February 2015.

[43] Parenting Research Centre, Scoping Review, op cit.

[44] B Naylor, Living Down the past...2012 cited by NOUS, pg 92.

[45] The Fair Work Ombudsman's guidance to employers in relation to referees, for example, suggests that workplace privacy protections mean that generally, a former employer should not disclose information about the former employee without the person's consent. https://www.fairwork.gov.au/about-us/policies-and-guides/best-practice-guides/workplace-privacy#bestpractice

[46] Many employers surveyed as part of the Impact Analysis said they would seek Police Checks even if Working with Vulnerable People Checks were in place, NOUS Report.

[47] 2015

[48] PRC, Scoping Review, op cit, pg 41, 46.  According to media reports, one of five alleged sexual offenders employed by a large Victorian disability provider worked 32 shifts while being investigated by police on suspicion of repeatedly raping a disabled woman at another disability provider.  The report suggests that one of the alleged abusers was hired after he was sacked by the other provider in early 2013 over his alleged repeated rape of an intellectually disabled woman.  In that case police investigated but the evidence was deemed insufficient to prosecute the case. 

[49] The most recent data on Working with Children Checks in NSW shows that 78 per cent of applications were processed within 2 days and 98 per cent within 10 days.

[50] In NSW, 84 per cent of full risk assessments were completed within 16 weeks in 2012-13.

[51] NOUS pg 92

[52] Nous Report, pg 111

[53] NOUS Group estimate.

[54] NOUS Group estimate.

[55] Nous Group Report, pg 110.

[56] Nous Group Impact Analysis, pg 120.

[57] ibid

[58] Nous Group Impact Assessment, pg 120

[59] Nous Group Impact Assessment, pg 137.

[60] Data provided is set out on page 23 of the Report

[61] This is a revised estimate.  The original NOUS modelling assumed a higher figure, but subsequent work has found that it significantly underestimated compliance costs to employers, and significantly over-estimated the likely impacts.   It should be noted though that the actual impacts of this option depend heavily on the  effectiveness of the worker exclusion scheme adopted: complaints-based worker exclusion schemes (such as code of conduct schemes) are significantly less effective than a Working with Vulnerable People’s check system which pro-actively vet potential workers because of the difficulty of detection of malfeasance and underreporting; schemes based on mandated reporting of misconduct and alleged crimes are likely to have stronger impacts, albeit still less than a Working With Vulnerable People check that includes both pre-employment screening and assessment of any subsequent misconduct.

.