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

Bills Digest No. 52, 2017–18                                                                                                                                                  

PDF version [502KB]

Paula Pyburne
Law and Bills Digest Section
13 November 2017

 

Contents

The Bills Digest at a glance

Purpose of the Bill

Structure of the Bill

Background

Development of the National Disability Insurance Scheme
Inquiries into violence and abuse
Community Affairs References Committee
Government response
Independent review

Committee consideration

Community Affairs Committee
Senate Standing Committee for the Scrutiny of Bills

Policy position of non-government parties/independents

Position of major interest groups

Financial implications

Statement of Compatibility with Human Rights

Parliamentary Joint Committee on Human Rights

Key provisions and issues

Establishing the Commission

Appointing the Commissioner
Key issue—independence of the Commissioner
Commissioner’s functions and powers
About the core functions
About the behaviour support function
Stakeholder comments
Performance of the functions
Key issue—assistance to the Commissioner

Registration of NDIS providers

Making an application
Key issue—nature and extent of the Rules
Registration by the Commissioner
Variation, suspension or revocation
Required record keeping
About the Register

Commissioner’s registration function

Quality assurance

Complaint management

By NDIS providers
By the Commissioner
Key issue—application of the framework to the NDIA

Incident management

By NDIS providers
Reportable incidents
By the Commissioner

Protection of disclosers

Operation of the Regulatory Powers Act

Monitoring powers
Investigation powers
Scrutiny of Bills Committee comments
Civil penalty provisions
Infringement notices
Enforceable undertakings
Injunctions
Other enforcement options
Compliance notices
Banning orders
Scrutiny of Bills Committee comments

Privacy

Reviewable decisions

Scrutiny of Bills Committee comments
Table 1: non-reviewable decisions

Delegation

Scrutiny of Bills Committee comments

Concluding comments

 

Date introduced:  31 May 2017
House:  House of Representatives
Portfolio:  Social Services
Commencement: Schedule 1 on 1 July 2018; all other provisions on Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2017.

 

The Bills Digest at a glance

The National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 amends the National Disability Insurance Scheme Act 2013 (NDIS Act) to establish the NDIS Quality and Safeguard Commission (the Commission) as an independent statutory body with a range of regulatory functions.

The Commission will be headed by the Commissioner whose functions include:

  • Specified core functions.
  • The registration and reportable incident functions.
  • The complaints functions.
  • The behaviour support function.
  • Any other functions that are conferred on the Commissioner by the NDIS Act or any other law of the Commonwealth.
  • To do anything incidental or conducive to the performance of any of the above functions.

In support of those functions, the Bill confers on the Commissioner a range of compliance and enforcement powers including:

  • Monitoring and investigating powers.
  • Imposition of civil penalties.
  • Issuing infringement and compliance notices.
  • Imposing banning orders.
  • Seeking enforceable undertakings.
  • Applying to a relevant court for an injunction to require that certain action be taken or that conduct be ceased.

The Bill also contains extensive powers to make Rules by legislative instrument including for matters such as:

  • Conditions of registration of NDIS providers.
  • Prescribed circumstances when registration of a registered NDIS provider may be suspended or revoked.
  • Standards concerning the quality of support or services to be provided by registered NDIS providers.
  • The establishment of an NDIS Code of Conduct for NDIS providers and their employees.
  • Requirements for complaints management and resolution processes regarding registered NDIS providers.
  • Arrangements relating to the notification and management of reportable incidents in connection with support or services by registered NDIS providers.

Purpose of the Bill

The primary purpose of the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (the Bill) is to amend the National Disability Insurance Scheme Act 2013 (NDIS Act) to establish the NDIS Quality and Safeguard Commission (the Commission) as an independent statutory body with a range of regulatory functions.

In addition, the Bill makes amendments to the NDIS Act in accordance with the recommendations of an independent review that was undertaken in 2015.

Structure of the Bill

The Bill contains two Schedules:

  • Schedule 1 establishes the Commission and sets out relevant transitional rules and
  • Schedule 2 contains administrative amendments.

Background

Development of the National Disability Insurance Scheme

In December 2012 the Council of Australian Governments (COAG) signed an Intergovernmental Agreement for the National Disability Insurance Scheme (NDIS).[1] The Commonwealth Government enacted the NDIS Act in the following year to establish the framework for the NDIS and the National Disability Insurance Scheme Launch Transition Agency (the NDIA) and its Board. This enabled the NDIS to be launched, and the NDIA to operate the launch, in five sites across Australia from July 2013.

The basis for the NDIS Act is the UN Convention on the Rights of Persons with Disabilities which came into force and was ratified by Australia in 2008. The Convention provides:

States Parties shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.[2]

The roll out of the NDIS across the states and territories is continuing.[3] Agreements for the full scheme roll out of the NDIS have been reached with New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory and the Northern Territory. This means the scheme has been or will be available to all eligible residents in the Australian Capital Territory from July 2016, in New South Wales and South Australia by July 2018, and in Tasmania, Victoria, Queensland and the Northern Territory by July 2019.[4]

The full scheme Heads of Agreement for each state and territory outline the parameters for transition to full scheme arrangements within specific timelines.[5]

Inquiries into violence and abuse

In the face of Australia’s declared commitment to protect persons with disabilities, allegations were made during an ABC TV Four Corners investigation in November 2014 that violence and abuse of people with disability was widespread.[6] In response to the program which related to Yooralla disability services in Victoria, the Victorian Ombudsman announced an investigation into how allegations of abuse in the disability sector are reported and investigated.[7]

This was followed in May 2015 with an inquiry conducted by the Family and Community Development Committee of the Victorian Parliament into abuse in disability services.[8] The Family and Community Development Committee reported:

Throughout the Inquiry the Committee heard undeniable evidence of the widespread nature of abuse and neglect of people with disability over a long period of time. It found that for too long the lived experience of people with disability, their families and carers has been ignored. The Committee has heard that abuse takes many forms: criminal physical and sexual assault, verbal and emotional abuse, financial abuse, and neglect endangering life. Abuse occurs in a range of different settings, from residential accommodation to day programs, and in services operated by both the Department of Health and Human Services and non-government disability service providers. Witnesses consistently linked the abuse of people with disability to the failure to uphold the rights of people with disability, a cultural problem that goes beyond the quality of care in disability services.[9]

Community Affairs References Committee

In February 2015, the Senate Community Affairs References Committee (References Committee) was also tasked to inquire into and report on 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.[10]

The report of the References Committee was in similar terms to those of the Family and Community Development Committee of the Victorian Parliament stating:

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.[11]

Accordingly, the References Committee made thirty recommendations.[12] Relevant to this Bills Digest were the following:

  • Recommendation 1: a Royal Commission into violence, abuse and neglect of people with disability be called
  • Recommendation 2: the Australian Government establish a national system for reporting and investigating violence, abuse and neglect of people with disability
  • Recommendation 3: the Australian Government establish a scheme to ensure national consistency in disability worker training, including national workforce qualification levels and workplace regulation
  • Recommendation 4: the Australian Government establish a disability worker registration scheme
  • Recommendation 5: the Australian Government establish a national approach to modify state and territory and Commonwealth service deliver accreditation programs
  • Recommendation 9: the Australian Government work with state and territory governments on a nationally consistent approach to existing state and territory disability oversight mechanisms
  • Recommendation 13: state and territory governments and Commonwealth service delivery accreditation programs be modified to impose additional requirements for positive outcomes for individuals with disability and
  • Recommendation 18: state and territory governments implement a national zero-tolerance approach to eliminate restrictive practice in all service delivery contexts.[13]

Government response

The Government published its response to the recommendations in March 2017.[14] With the exception of recommendation 1, with which the Government did not agree, each of the recommendations outlined above was noted. The contents of the References Committee report informed the work of the Council of Australian Governments (COAG) in developing and agreeing to an NDIS Quality and Safeguarding Framework.[15]

The provisions in Schedule 1 to the Bill acknowledge the overwhelming evidence that many persons with disability have been subjected to ‘appalling levels of violence, abuse and neglect’.[16]

Independent review

Subsection 208(1) of the NDIS Act requires an independent review to be undertaken commencing on the second anniversary of the commencement of Chapter 3. As Chapter 3 commenced on 1 July 2013, the Minister commissioned Ernst and Young to conduct the statutory review in July 2015. The review report contains 33 recommendations.[17]

COAG considered the review’s recommendations and developed a response, which was agreed in December 2016.[18] COAG agreed, or agreed in principle, with the majority of the recommendations. The relevant amendments are contained in Schedule 2 to the Bill.

Committee consideration

Community Affairs Committee

The Bill was referred to the Senate Standing Committee on Community Affairs (Community Affairs Committee) for inquiry and report by 13 September 2017.[19]  The reporting date was subsequently extended to 8 November 2017. The Community Affairs Committee received 48 submissions.

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee commented on the Bill in its Scrutiny Digest of 9 August 2017.[20] The comments are canvassed under the ‘Key provisions and issues’ heading of this Bills Digest.

Policy position of non-government parties/independents

Australian Labor Party (ALP) Member for Lindsay, Emma Husar, has stated:

... Labor supports the development of a strong quality and safeguards framework for the NDIS scheme. A robust, quality and safeguarding framework is important to protect and prevent people with disability from experiencing harm which arises from poor quality or unsafe support services under the NDIS. This framework is vital to the success of the NDIS.[21]

Other non-government parties and independent Senators and Members had not, at the time of writing this Bills Digest, made comments in relation to the Bill.

Position of major interest groups

The Bill was generally welcomed by stakeholder groups.[22] For example, the Queensland Office of the Public Advocate was:

...pleased to see that the foundations required to establish a sound safeguarding framework for the National Disability Insurance Scheme including specific provision for a code of conduct, behaviour support, complaint management and other important functions will be put in place through this Bill.[23]

Similarly, the National Mental Health Consumer and Carer Forum welcomed the introduction of the Bill:

The aim of establishing an independent national Commission, to protect and prevent people with disability from experiencing harm and oversee the regulatory arrangements for NDIS providers is an enhancement of the protections being afforded to scheme participants who experience psychosocial disability.[24]

However, advocacy groups lamented the absence of an explicit role for independent disability advocates. For instance the Victorian Council of Social Service argued:

Independent disability advocacy is a crucial safeguard for people with disability, particularly those who are most marginalised or those with complex needs. Advocacy organisations can help identify circumstances of violence, abuse and neglect, build people’s capacity to understand their rights and assist people to make a complaint. Advocates can help address the power imbalance between individuals and service providers ... Advocacy organisations are also well placed to identify and report systemic issues or trends to the Commission, to inform investigations.[25]

The Disability Advocacy Network of Australia and the Australian Federation of Disability Organisations stated:

Without advocacy, individualised schemes such as NDIS have the potential to maintain power imbalances between service providers and people with disability that existed under block funding. The design of this new system must take into account that some NDIS participants will require advocacy support to effectively raise or communicate concerns, resolve issues before they escalate, or participate meaningfully in complaints resolution processes.[26]

More specific comments in relation to the Bill are canvassed under the ‘Key provisions and issues’ heading of this Bills Digest.

Financial implications

According to the Explanatory Memorandum to the Bill ‘the establishment of the Commission has a cost of $209 million of the forward estimates. The amendments in Schedule 2 will not have a financial impact, as they do not represent a change to the administration of the NDIS’.[27]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[28]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights (Human Rights Committee) provided comments in relation to the Bill in its report of 8 August 2017.[29] Of particular concern to the Human Rights Committee was the proposed power of the Quality and Safeguards Commissioner to disclose information acquired under the NDIS Act. According to the Human Rights Committee, the relevant provisions engage the right to privacy as enunciated in a number of international treaties.[30] These matters are canvassed more fully under the ‘Key provisions and issues’ heading of this Bills Digest.

Key provisions and issues

Establishing the Commission

Item 60 in Schedule 1 to the Bill inserts proposed Chapter 6A—NDIS Quality and Safeguards Commission into the NDIS Act. In Part 1 of new Chapter 6A, proposed section 181A establishes the NDIS Quality and Safeguards Commission—consisting of the Commissioner and the staff of the Commission.[31]

The Commission’s function is to assist the Commissioner in the performance of the Commissioner’s functions.[32] The staff of the Commission must be persons engaged under the Public Service Act 1999.[33] In addition, the Commissioner may engage consultants to assist in the performance of the Commissioner’s functions.[34]

Appointing the Commissioner

Within Part 2 of new Chapter 6A, proposed section 181C requires that there is a Commissioner of the NDIS Quality and Safeguards Commission. The Commissioner is to be appointed by the Minister in writing on a full‑time basis for a period not exceeding three years.[35] There is no legal impediment to the Commissioner being appointed for a further term or terms.

The Minister may terminate the appointment of the Commissioner for a range of reasons including, but not limited to:

  • for misbehaviour
  • where the Commissioner is unable to perform the duties of his, or her, office because of physical or mental incapacity
  • if the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months or
  • the Commissioner engages in paid work outside the duties of his or her office without Ministerial approval.[36]

Key issue—independence of the Commissioner

Some submitters to the Community Affairs Committee expressed concern about the independence of the Commissioner who is to be appointed by the Minister and may be terminated by the Minister.[37] In particular, proposed section 181K of the NDIS Act provides that the Minister may, by legislative instrument, give directions to the Commissioner about the performance of his, or her, functions and the exercise of his, or her, powers.

The Explanatory Memorandum to the Bill states:

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.[38]

Despite this, Queensland Advocacy Incorporated opined that the ‘Minister’s power over the Commission may compromise its ability to act independently. The proposed model raises the potential for perception of conflict of interest, particularly as it relates to the handling of complaints’.[39] Disabled People’s Organisations Australia expressed its concern that ‘directions could be imposed by the Commonwealth Minister that have the effect of constraining or compromising the independence of the NDIS Commissioner, for example, in investigating systemic issues arising from complaints’.[40]

However, it should be noted that the Quality and Safeguards Commission will be subject to the Public Governance, Performance and Accountability Act 2013 (PGPA Act):

  • the Commission is a listed entity (proposed paragraph 181A(3)(a) of the NDIS Act)[41]
  • the Commissioner is the accountable authority of the Commission (proposed paragraph 181A(3)(b)) [42]
  • the Commissioner, his or her staff, the persons assisting the Commissioner and any consultants engaged by the Commission are officials of the Commission (proposed paragraph 181A(3)(c))[43]
  • the purposes of the Commission include the functions of the Commission and the Commissioner as set out in this Bill (proposed paragraph 181A(3)(d)).[44]

This may provide some protection from any perceived Ministerial interference. In particular, section 15 of the PGPA Act requires the accountable authority (that is, the Commissioner) to govern the entity in a way that, amongst other things, promotes the achievement of the purposes of the entity and promotes the financial sustainability of the entity. This means that the Commissioner must satisfy a range of statutory requirements about the manner in which he, or she, undertakes the role.

Further, any directions from the Minister to the Commission are legislative instruments made under the Legislation Act 2003. However, even though the directions are subject to Parliamentary and public scrutiny, they are not subject to disallowance by the Parliament.[45] Nevertheless they will be publicly available documents.

Commissioner’s functions and powers

The Commissioner has the following functions:

  • the core functions
  • the registration and reportable incident functions
  • the complaints functions
  • the behaviour support function
  • any other functions that are conferred on the Commissioner by the NDIS Act or any other law of the Commonwealth—such as the PGPA Act and
  • anything incidental or conducive to the performance of the above functions.[46]

The Commissioner may, by notifiable instrument, make guidelines relating to the performance of any of those functions.[47]

About the core functions

The Commissioner’s core functions are as follows:

  • 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 NDIS Act through effective compliance and enforcement arrangements
  • 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 NDIA or the Board in relation to the performance of the NDIA’s functions
  • to engage in, promote and coordinate the sharing of information to achieve the objects of the NDIS Act
  • to 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.[48]

These are broadly drawn. They reflect the concerns and the key recommendations of the References Committee as outlined above.

About the behaviour support function

The Commissioner’s behaviour support function is to provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices, by NDIS providers.[49] Item 13 of Schedule 1 to the Bill inserts the definition of restrictive practice into section 9 of the NDIS Act being any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability. (See the discussion about reportable incidents below.)

This is consistent with the definition set out in the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector.[50] The References Committee report defines the various forms of restrictive practices as:

  • seclusion: the sole confinement of a person with disability
  • chemical restraint: the use of medication for the primary purpose of influencing a person's behaviour or movement
  • mechanical restraint: the use of a device to prevent or restrict a person's movement for the primary purpose of influencing a person's behaviour
  • physical restraint: the prolonged use of physical force to subdue movement for the primary purpose of influencing a person's behaviour and
  • additional restrictive practices of:
    • psycho-social restraints: the use of 'power-control' strategies
    • environmental restraints: restricting a person's free access to all parts of their environment and
    • consequence driven practices: the withdrawal of activities or items.[51]

The References Committee reported that it ‘received evidence that argued the misuse of “restrictive practices” is viewed as a form of abuse’.[52]

The behaviour support function makes the Commissioner responsible for building capability in the development of behaviour support by developing and implementing a competency framework for registered NDIS providers and assessing the skills and experience of such providers against the competency framework. In addition, the Commissioner is required to develop policy and guidance materials in relation to behaviour supports and the reduction and elimination of the use of restrictive practices by NDIS providers. The Commissioner is to monitor registered NDIS provider compliance with those materials and collect relevant data about the use of behaviour supports and restrictive practices by NDIS providers.[53]

Stakeholder comments

The Queensland Office of the Public Advocate strongly supported ‘the NDIS policy commitment to reduce and eliminate the use of restrictive practices’ but expressed concern ‘about how effectively these policies will be implemented in a young and evolving “free market” populated by a potentially unprecedented number of providers’.[54]

Performance of the functions

In performing any of his or her functions, 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 in relation to those matters
  • conduct compliance and enforcement activities in a risk responsive and proportionate manner and
  • support and maintain a diverse and sustainable NDIS market.[55]

The Commissioner may consult and cooperate with other persons, organisations and governments in carrying out his or her functions.[56]

In addition, proposed section 181J of Schedule 1 to the Bill provides that the Minister may, by legislative instrument, determine the things that the Commissioner does in the performance of his, or her, functions for which fees may be charged and the amount, or the method of working out those fees. The Commissioner is empowered to charge fees in accordance with that instrument. By way of example, the Commissioner may impose a charge on the making of an application for registration.

Key issue—assistance to the Commissioner

According to the Explanatory Memorandum to the Bill:

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.[57]

Whilst these roles may be envisaged as part of the ongoing roll-out of the NDIS, they are not established by the Bill.

Registration of NDIS providers

Making an application

Item 48 of Schedule 1 to the Bill inserts proposed Part 3A—NDIS providers into Chapter 4 of the NDIS Act. Within new Part 3A, proposed section 73B provides that the National Disability Insurance Scheme rules (the Rules) may require that specified classes of supports provided under participants’ plans are to be provided only by NDIS providers who are registered to provide those classes of supports.[58]

Sections 69–71 of the NDIS Act currently contain provisions about registered providers of supports.

The mechanism for national accreditation and registration in proposed Part 3A of Chapter 4 of the NDIS Act will streamline requirements for providers, and in particular those providers whose service provision stretches across several jurisdictions. This reduction in administrative burden is expected to support a market that is growing quickly to meet a demanding implementation schedule, without a reduction in safeguards.

New South Wales and South Australia will transition to the new Quality and Safeguards Commission in July 2018, with all other states (with the exception of Western Australia) transitioning in July 2019. This will mean that dual quality and safeguarding systems will operate in parallel for the 2018/19 financial year.[59]

Item 7 in Schedule 1 to the Bill inserts the definition of NDIS provider into section 9 of the NDIS Act, being:

  • a person (other than the NDIA) who receives funding under the arrangements in Chapter 2 of the NDIS Act (about assistance for people with disability and others) or NDIS amounts other than as a participant[60] or
  • a person or entity who provides supports or services to people with disability other than under the National Disability Insurance Scheme and who is prescribed by the Rules.

Where the Rules require the person to be registered, a person must not provide a support under a participant’s plan if the person is not registered.[61] A contravention of the requirements gives rise to a maximum civil penalty of 250 penalty units.[62]

The Bill confers the registration function on the Commissioner (or his delegate).[63] A person may apply to the Commissioner to be a registered NDIS provider in relation to any or all of the following:

  • the provision of supports or services under the arrangements set out in Chapter 2 of the NDIS Act
  • managing the funding for supports under participants’ plans
  • the provision of supports under participants’ plans.[64]

In addition, a person may also apply to be a registered NDIS provider in relation to the provision of services or supports to people with disability—other than under the NDIS—provided that the person is included in a class of persons prescribed under the Rules.[65]

The application must be made in the manner and form required under the NDIS Act and is to include any information, and be accompanied by any documents, required by the Commissioner.[66] The Commissioner may give an applicant a written notice, requiring the production of further information or documents.[67] In that case, the time specified in the notice for providing the information or documents must not be less than 14 days.[68]

A person who provides information or a document in support of an application for registration that he, or she, knows is false or misleading in a material particular is liable for a maximum civil penalty of 60 penalty units.[69]

Key issue—nature and extent of the Rules

The Scrutiny of Bills Committee noted that the Bill enables a number of significant matters to be included in delegated legislation rather than set out in primary legislation. This includes enabling the Rules to make provision for matters such as:

  • conditions of registration of NDIS providers
  • prescribed circumstances as to when registration of a registered NDIS provider may be suspended or revoked
  • standards concerning the quality of support or services to be provided by registered NDIS providers
  • the establishment of an NDIS Code of Conduct for NDIS providers and their employees
  • requirements for complaints management and resolution regarding registered NDIS providers and
  • arrangements relating to the notification and management of reportable incidents in connection with support or services by registered NDIS providers.

In addition, the Scrutiny of Bills Committee commented that a breach of the NDIS Code of Conduct which is to be established by the Rules is subject to a heavy financial penalty. No explanation had been made for the inclusion of ‘so much detail about the scheme in the Rules and not in the primary legislation’.[70] That being the case, the Scrutiny of Bills Committee sought advice from the Minister about this issue.

Accordingly, the Minister provided the following explanation:

Separating the Rules from the Bill provides appropriate flexibility and enables the Commission to be responsive in circumstances where the NDIS market environment is uncertain and rapidly changing. The NDIS is still in transition and it is growing and evolving rapidly ... The rapid change in scale and complexity of the NDIS market means that unpredictable risks may emerge in the medium term. The Commission will need to deal promptly with new and emerging areas of risk in the effective regulation of NDIS providers, both now and into the future. It is therefore appropriate that these aspects of the scheme be covered by Rules that can be adapted and modified in a timely manner.[71]

Registration by the Commissioner

The Commissioner may register a person who has made an application as a registered NDIS provider if:

  • 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[72] as meeting the applicable standards and other requirements prescribed by the NDIS Practice Standards[73]
  • the Commissioner is satisfied that the applicant is suitable to provide supports or services in accordance with any relevant Rules
  • the Commissioner is satisfied that the applicant’s key personnel (if any) are suitable to be involved in the provision of supports or services which the applicant will be registered to provide under any relevant Rules[74] and
  • the applicant satisfies any other requirements prescribed by the Rules.[75]

The registration may cover managing the funding of supports under participants’ plans, providing specified classes of supports under participants’ plans, providing specified classes of supports or services or providing specified classes of supports or services to people with disability other than under the NDIS.[76]

The Commissioner must give an applicant a written notice, including a statement of reasons, of a decision to register, or refuse to register, the person as an NDIS provider.[77] Where the decision has been made to register the person, the Commissioner must provide a certificate of registration specifying the matters to which the registration relates.[78]

The registration of a person as a registered NDIS provider is subject to a range of conditions including but not limited to requirements to comply with all the laws of the Commonwealth or a law of the State or Territory in which the person or entity operates as a registered NDIS provider,[79] the NDIS Code of Conduct[80] and the NDIS Practice Standards.[81]

About the NDIS Code of Conduct

The NDIS Code of Conduct will apply to all providers and workers who are funded under the NDIS, regardless of whether they are registered, and to persons employed or otherwise engaged by NDIS providers. This includes volunteers and key personnel, such as any person with responsibility or influence over planning, directing or decisions, including board members and other stakeholders of significance.

The NDIS Code of Conduct is a key mechanism for the Commission to oversee, investigate and enforce compliance of providers—including unregistered providers—who engage in unacceptable conduct in the NDIS market.

Department of Social Services, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, 24 July 2017, p. 9.

The Commissioner may impose additional conditions which are to be specified on the certificate of registration.[82] Further, the Rules may determine that each registration, or each registration included in a specified class of registration, is taken to include one or more specified conditions.[83]

A registered NDIS provider who breaches a condition of his, or her, registration is subject to a maximum civil penalty of 250 penalty units.[84]

Variation, suspension or revocation

The Bill provides for the variation of registration either on the Commissioner’s own initiative or on receipt of a formal written application from the NDIS provider.[85] The Bill also provides for the Commissioner to suspend the registration of an NDIS provider for a maximum period of 30 days at a time and for the revocation of registration by the Commissioner.[86]

In making a decision to revoke the registration of a person, the Commissioner must have regard to matters such as the nature, significance and persistence of any contravention of the NDIS Act, the extent (if any) to which the person is conducting its affairs in a way that may cause harm to, or jeopardise, public trust in the National Disability Insurance Scheme and the health, safety or wellbeing of people with disability receiving supports or services from the person.[87]

Required record keeping

The Rules prescribe the kind of records that a registered NDIS provider must keep and the period for which they are to be retained.[88]  A person who has ceased to be a registered NDIS provider must retain records for three years commencing on the day that the person ceased to be a registered NDIS provider.[89] A person who contravenes this requirement is liable for a maximum civil penalty of 60 penalty units.[90]

About the Register

The Bill requires the Commissioner to establish and maintain the NDIS Provider Register.[91] The NDIS Provider Register must include the information contained in proposed subsection 73ZS(3) which includes (but is not limited to) the name of the NDIS Provider, any conditions which have been imposed on the registration, any information about the suspension of registration, the imposition of a banning order or any other compliance action which is on foot.

The Rules may make provision for the correction of entries in the NDIS Provider Register.[92]

Commissioner’s registration function

Quality assurance

The Rules may make provision for, or in relation to, standards concerning the quality of supports or services to be provided by registered NDIS providers—to be known as the NDIS Practice Standards.[93] The NDIS Practice Standards may deal with the standards to be complied with to become, or to remain as, a registered NDIS provider as well as matters relating to the screening of workers employed or otherwise engaged by registered NDIS providers.[94]

Proposed paragraph 181F(b) of the NDIS Act (at item 60 of Schedule 1) empowers the Commissioner to approve and publish a list of persons or bodies who have been approved as quality auditors for the purpose of the NDIS Practice Standards.[95] The Commissioner’s registration function also includes monitoring registered NDIS provider compliance with the conditions of their registration.[96]

Complaint management

By NDIS providers

A registered NDIS provider must 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 Rules.[97] Those rules may deal with a range of matters including, but not limited to:

  • how complaints may be made, managed and resolved, including methods to support the early resolution of complaints[98]
  • the roles, rights and responsibilities of people with disability, complainants, NDIS providers and other persons in relation to the management and resolution of complaints[99]
  • actions that must, or may, be taken (including making requirements of NDIS providers) to address complaints[100] and
  • authorising the provision of information relating to complaints to the Minister, the NDIA or other specified bodies.[101]

By the Commissioner

The Rules may also confer functions on the Commissioner (consistent with proposed section 181G of the NDIS Act) relating to the investigation, management, conciliation and resolution of complaints. In addition, the Commissioner’s complaints functions include, but are not limited to, educating people about, and developing resources relating to best practice in the handling of complaints in order to build the capability of people with disability to pursue complaints about the provision of supports or services by NDIS providers. The Commissioner must also collect and analyse data about the provision of supports or services by NDIS providers—and any complaints about those supports or services.

Key issue—application of the framework to the NDIA

Of concern to the Disability Advocacy Network of Australia and the Australian Federation of Disability Organisations is that the Code of Conduct will not apply to the NDIA, the NDIA Board, the Quality and Safeguarding Commission or the NDIA operational staff.[102]

The Victorian Council of Social Service is also concerned that the Commission is not enabled to ‘receive and investigate complaints about the NDIA and NDIA funded Local Area Co-ordinators’. Were this to occur, it would ‘make it easier for individuals and the disability sector to know where to make a complaint’.[103]

Incident management

By NDIS providers

A registered NDIS provider must implement and maintain an incident management system that is appropriate for the size of the provider and for the classes of supports or services provided by the provider and that complies with any requirements prescribed by the Rules.[104]

Reportable incidents

Proposed subsection 73Z(4) provides that a reportable incident is any of the following:

  • 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 disability, including grooming of the person for sexual activity or
  • 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.[105]

The Rules may provide that a specified act, omission or event is, or is not, a reportable incident.[106] In addition, the Rules must 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 registered NDIS providers.[107]

By the Commissioner

The Commissioner has a broader reportable incident function. The Rules may set out functions (consistent with proposed section 181F of the NDIS Act) relating to the notification and management of reportable incidents. The Commissioner’s reportable incidents function includes developing effective incident management systems to build provider capability to prevent and manage incidents. The Commissioner must also collect and analyse data relating to incidents, in order to identify trends or systemic issues.

Protection of disclosers

Proposed section 73ZA of the NDIS Act applies to a disclosure of information by a person (the discloser) who is, in relation to an NDIS provider, any of the following:

  • 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[108]
  • 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.

The disclosure of the information will be protected if all of the following are satisfied:

  • the disclosure is made to the Commissioner, the NDIA, a member of the key personnel of a body corporate or an unincorporated association which is an NDIS provider, or if the NDIS provider is a partnership—the disclosure was made to a partner
  • the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure
  • the discloser has reasonable grounds to suspect that the information indicates that an NDIS provider has, or may have, contravened a provision of the NDIS Act and
  • the discloser makes the disclosure in good faith.[109]

Where the disclosure qualifies for protection then the person who made it is not subject to any civil or criminal liability for making the disclosure and no contractual or other remedy may be enforced, and no other right may be exercised, against the person because of the disclosure.[110]

Proposed section 73ZC of the NDIS Act gives rise to two civil penalty provisions. The first is where a person intentionally engages in conduct which causes any detriment to another person because that person made a protected disclosure.[111] The second is where a person threatens[112] to cause detriment to a second person, intends the second person to fear that the threat will be carried out or is reckless as to causing the second person to fear that the threat will be carried out and the reason for the threat is that the second person made a protected disclosure.[113] In either case, the maximum penalty is 500 penalty units.[114]

Operation of the Regulatory Powers Act

Many of the provisions in proposed Division 8 of new Part 3A of Chapter 4 of the NDIS Act trigger a range of enforcement powers under the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act).

Providing criminal and civil remedies allows flexibility to respond to contraventions of the NDIS Act, with remedies proportionate to the seriousness of the conduct. A criminal offence must be proved ‘beyond reasonable doubt’ and results in a criminal record, whereas contravention of a civil penalty provision is proved on the ‘balance of probabilities’ and does not result in a criminal conviction.

Monitoring powers

Proposed subsection 73ZE(2) of the NDIS Act provides that information given in compliance with Part 3A is subject to monitoring under Part 2 of the Regulatory Powers Act.

The monitoring powers (set out at section 19 of the Regulatory Powers Act) which may be exercised on premises that an authorised person[115] has entered under warrant or consent, include the power to:

  • search the premises and any thing on the premises
  • examine or observe any activity conducted on the premises
  • inspect, examine, take measurements of or conduct tests on any thing on the premises
  • make any still or moving image or any recording of the premises or any thing on the premises
  • inspect any document on the premises
  • take extracts from, or make copies of, any such document
  • take onto the premises such equipment and materials as the authorised person requires in order to exercise powers in relation to the premises
  • operate electronic equipment on the premises, to put relevant data in documentary form or copy the data onto a device and remove the documents or device from the premises[116]
  • secure electronic equipment where an authorised person enters premises under a monitoring warrant[117]
  • secure a thing for a period of 24 hours in circumstances where the thing is found during the exercise of monitoring powers on the premises and an authorised person believes on reasonable grounds that it relates to the contravention of a related provision.[118]

These powers may only be exercised to:

  • determine whether a provision of new Part 3A of Chapter 4 of the NDIS Act is being complied with and/or
  • determine whether information supplied under new Part 3A of Chapter 4 of the NDIS Act is correct.[119]

Investigation powers

Proposed subsection 73ZF(1) of the NDIS Act sets out the provisions that are subject to investigation under Part 3 of the Regulatory Powers Act. They are:

  • a civil penalty provision under new Part 3A of Chapter 4 of the NDIS Act or
  • an offence against the Crimes Act or the Criminal Code that relates to the new Part 3A of Chapter 4 of the NDIS Act.

Part 3 of the Regulatory Powers Act applies to the evidential material relevant to the criminal offences and civil penalty provisions specified above.[120] The investigation powers (set out at section 49 of the Regulatory Powers Act) which may be exercised on premises that an authorised person has entered under warrant or consent, include the power to:

  • where the occupier consents to entry—search the premises and any thing on the premises for the evidential material the authorised person suspects on reasonable grounds may be on the premises
  • where the entry is under warrant—search the premises and any thing on the premises for the kind of evidential material specified in the warrant and to seize evidential material of that kind if the authorised person finds it on the premises
  • inspect, examine, take measurements of, or conduct tests on, the evidential material
  • make any still or moving image or any recording of the premises or evidential material
  • take onto the premises such equipment and materials as the authorised person requires for the purpose of exercising powers in relation to the premises
  • operate electronic equipment on the premises, to put relevant data in documentary form or copy the data onto a device and remove the documents or device from the premises. If the entry is under warrant, the equipment may be seized[121]
  • secure electronic equipment where an authorised person enters premises under an investigation warrant.[122]

Where an authorised person suspects on reasonable grounds that there may be evidential material on any premises, he, or she, may enter the premises and use investigation powers so long as the occupier consents or the authorised person has an investigation warrant.[123] The provisions in Part 3 of the Regulatory Powers Act set out the requirements for applying for an investigation warrant and its contents.[124]

Scrutiny of Bills Committee comments

In relation to the monitoring and investigation powers, the Bill provides that an authorised person may be assisted by other persons in exercising the powers or performing the functions or duties under Parts 2 and 3 of the Regulatory Powers Act respectively.[125]

The Scrutiny of Bills Committee sought the Minister’s advice as to why it is necessary to confer monitoring and investigatory powers on any ‘other person’ to assist an authorised person. According to the Minister:

Within the limited resources of the Commission, it is not possible to employ experts across the diverse ranges of supports who are appropriately qualified to investigate complex and often technical matters arising in connection with NDIS supports. The disability support market is diverse and geographically dispersed and includes specialised supports such as aids and equipment. The investigation of a complaint or incident can be extremely complex for particular groups of NDIS providers ...

It is therefore necessary to engage other persons who have specialist skills, training or expertise to assist an investigation including experts currently involved in regulating disability services.[126]

Civil penalty provisions

Each civil penalty provision of new Part 3A of Chapter 4 of the NDIS Act is enforceable under Part 4 of the Regulatory Powers Act which allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.[127]

Proposed subsection 73ZK(2) provides that the Commissioner is an authorised applicant in relation to the civil penalty provisions. This allows the Commissioner to apply to the Federal Court of Australia, the Federal Circuit Court of Australia or a court of a state or territory that has jurisdiction under the NDIS Act, for a civil penalty order requiring a person who is alleged to have contravened a civil penalty provision, to pay the Commonwealth a pecuniary penalty.[128]

The authorised applicant must make the application within six years of the alleged contravention.[129]

In determining the pecuniary penalty, the court must take into account all relevant matters, including:

  • the nature and extent of the contravention
  • the nature and extent of any loss or damage suffered because of the contravention
  • the circumstances in which the contravention took place and
  • whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.[130]

A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.[131]

Infringement notices

The Bill also inserts provisions into the NDIS Act which will enable the Commissioner to take other enforcement actions which are more educative than punitive in nature.

The issuing of infringement notices is governed by Part 5 of the Regulatory Powers Act. They apply to civil penalty provisions in new Part 3A of Chapter 4 of the NDIS Act. Proposed section 73ZL provides that the Commissioner is an infringement officer. The Commissioner is also the relevant chief executive under Part 5, which allows him, or her, to exercise powers such as allowing a person more time to pay an infringement notice amount or withdraw an infringement notice.[132]

If an infringement officer believes on reasonable grounds that a person has contravened a provision subject to an infringement notice, he or she may give to the person an infringement notice for the alleged contravention. That notice must be given within 12 months after the day on which the contravention is alleged to have taken place.[133] The amount payable under the notice must be the lesser of: one-fifth of the maximum penalty that a court could impose on the person for that contravention; or 12 penalty units for an individual or 60 penalty units for a body corporate.[134]

Enforceable undertakings

A provision is enforceable under Part 6 of the Regulatory Powers Act if it is an offence or a civil penalty provision arising from new Part 3A of Chapter 4 of the NDIS Act.[135]

Proposed subsection 73ZP(2) provides that the Commissioner is an authorised person for the purposes of Part 6 of the Regulatory Powers Act. This allows the Commissioner to accept an undertaking relating to compliance with an enforceable provision of the NDIS Act.[136]

That undertaking may be enforced by a relevant court—that is, the Federal Court of Australia, the Federal Circuit Court of Australia or a court of a state or territory that has jurisdiction in relation to matters under the NDIS Act. The court may make any order that it considers appropriate, include an order directing compliance, an order requiring any financial benefit from the failure to comply to be surrendered and an order for damages.[137]

The Bill also authorises the Commissioner to accept additional written undertakings in respect of a breach of an enforceable provision.[138]

Injunctions

Proposed subsection 73ZQ(2) provides that the Commissioner is an authorised person for the purposes of Part 7 of the Regulatory Powers Act. This allows the Commissioner to apply to the Federal Court of Australia, the Federal Circuit Court of Australia or a court of a state or territory that has jurisdiction in relation to matters under the NDIS Act for an injunction restraining a person from engaging in specified conduct or requiring a person to do a thing.[139]

Other enforcement options

Compliance notices

The Commissioner may give to an NDIS provider a written notice (a compliance notice) if the Commissioner is satisfied that an NDIS provider is not complying with the NDIS Act or is aware of information that suggests that an NDIS provider may not be complying with the NDIS Act.

The Commissioner must issue a compliance notice to an NDIS provider in the form set out in proposed subsection 73ZM(2). Where an NDIS provider fails to comply with the notice within the time specified in the notice, the NDIS provider incurs a maximum penalty of 60 penalty units.[140]

Banning orders

Under proposed subsection 73ZN(1) of the NDIS Act, the Commissioner may, by written notice, make an order (known as a banning order) prohibiting or restricting specified activities by an NDIS provider if:

  • the Commissioner has revoked the registration of the person as a registered NDIS provider
  • the Commissioner reasonably believes that the person has contravened, is contravening, or is likely to contravene the NDIS Act; has been involved in, or is likely to become involved in, a contravention by another person; 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 with disability if the person continues to be an NDIS provider
  • the person is convicted of an offence involving fraud or dishonesty or
  • the person becomes an insolvent under administration.

The Commissioner may also make a written banning order prohibiting or restricting a person who is employed or otherwise engaged by an NDIS provider from engaging in specified activities if the Commissioner reasonably believes that the person has contravened, is contravening, or is likely to contravene the NDIS Act; has been involved in, or is likely to become involved in, a contravention by another person; 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 with disability if the person continues to be an NDIS provider; or if the person is convicted of an offence involving fraud or dishonesty or becomes an insolvent under administration.

A person who engages in conduct which breaches a banning order incurs a maximum civil penalty of 1,000 penalty units.[141] The Bill also empowers the Commissioner to vary the terms of, or revoke, a banning order.[142]

The Commissioner may only make a banning order against a person after giving the person an opportunity to make submissions to the Commissioner on the matter.[143] However, the Bill provides an exception to this general rule if the Commissioner’s grounds for making the banning order are, or include, that there is an immediate danger to the health, safety or wellbeing of a person with disability; or that the Commissioner has revoked the registration of the person as a registered NDIS provider.[144]

Scrutiny of Bills Committee comments

The Scrutiny of Bills Committee requested advice from the Minister about the justification for removing the right of a person to make submissions to the Commissioner before a banning order in the circumstances stated above. The Minister justified the exception with the following explanation of the interaction of the various options which are available to the Commissioner:

The approach taken in relation to banning orders in the Bill is that it represents the highest level of enforcement action that can be taken in the most serious cases in which a NDIS provider, or person employed (or otherwise engaged) by an NDIS provider poses an unacceptable risk to people with disability in the NDIS ...

In the case of a registered provider, prior to the application of a ban order, even in cases where there is an immediate danger to the health, safety or wellbeing of a person with disability, the provider's registration must first be revoked under proposed section 73P which includes the right of a person to make submissions before registration is revoked (subsection 73P(4)). In practice, if a registered NDIS provider poses an immediate danger to a person with disability, the Commissioner may suspend the registration of the provider pending consideration of whether the provider's registration should be revoked. While the Commissioner is considering whether a provider's registration should be revoked, the Commissioner may also issue a compliance notice preventing the provider from providing any NDIS supports or services. In the case of an unregistered provider, there is a series of compliance and enforcement action available to the Commissioner prior to issuing a ban order, ranging from compliance notices through to requiring a provider to undergo quality assurance checks. If, in the most serious of cases, the Commissioner has grounds to believe that there is an immediate danger to the health, safety or wellbeing of a person with disability, he or she may issue a ban order under proposed subsection 73ZN(7) for a specified period to allow for submissions to be made by the provider about the ongoing nature of the ban order. A ban order is also a reviewable decision and a person may apply under proposed subsection 73ZO(2) for the revocation or variation of a ban order ...

The discretion for the Commissioner to apply a banning order for a limited period is intended to enable the Commissioner to act quickly if the circumstances indicate that it is appropriate to do so pending any further consideration of the matter. On the basis that a ban order can be applied for a limited period and that a person may apply for revocation or review, the approach taken is considered to be the most appropriate to protect people with disability from unsafe NDIS providers or workers.[145]

Privacy

Currently Chapter 4 of the NDIS Act contains provisions relating to the power to obtain information and the requirement to protect that information. The Bill creates three new Divisions in Part 2—Privacy.

Item 28 of Schedule 1 to the Bill inserts the heading Division 1—Information held by the Agency. Items 31–42 make minor amendments to sections 60–66 so that they relate specifically to the protection of information held by the NDIA. Accordingly, the existing definition of protected information is repealed by item 10 of Schedule 1 to the Bill. A new definition of protected Agency information is inserted into section 9 of the NDIS Act by item 9 of the Bill. Protected Agency information is information about a person that is, or was, held in the records of the NDIA or information to the effect that there is no information about a person held in the records of the NDIA.

Item 45 of Schedule 1 to the Bill inserts the heading Division 2—Information held by the Commission. Division 2 contains proposed sections 67A–67F which are in equivalent (or near equivalent) terms to sections 60–66 of the NDIS Act—except that they relate specifically to the Commission. A new definition of protected Commission information is inserted into section 9 of the NDIS Act by item 9 of the Bill. Protected Commission information is information about a person that is, or was, held in the records of the Commission or information to the effect that there is no information about a person held in the records of the Commission.

Proposed section 67E provides broad powers for the Commissioner to disclose protected information, which may include personal or sensitive information. The Office of the Australian Information Commissioner expressed its concern that any such provision achieves an appropriate balance between the needs and objectives of the Commission and the privacy of individuals:

The Privacy Act 1988 and the Australian Privacy Principles (APPs) seek to achieve such a balance ...

APP 6 provides limits around the use and disclosure of personal (including sensitive) information for purposes other than the primary purpose for which the information was collected. Section 67E would engage an exception under APP 6.2(b) permitting disclosures that are authorised by law. Where a law engages this exception under the Privacy Act, the authorisation should be reasonable, necessary and proportionate to achieve the relevant policy goals. Given the breadth of circumstances in which personal or sensitive information could be disclosed under s 67E, it is not clear whether the authorisation under s 67E is reasonable, necessary and proportionate.

Additionally, because APP 6.2(b) would be engaged, an individual who felt their information had been disclosed inappropriately may have limited redress. Under the Privacy Act, an individual who is concerned that an entity has not handled their personal information in accordance with the APPs may lodge a complaint. The broad authorisation of s 67E may mean that a complaint about a disclosure by the Commissioner would have limited prospects.[146]  

The Human Rights Committee also drew attention to proposed subsection 67E(2) of the NDIS Act which provides that, in disclosing such information, the Commissioner must act in accordance with the Rules made for the purposes of proposed section 67F.[147] The measure engages the right to privacy (as confirmed by the Department’s statement of compatibility).[148]

According to the Human Rights Committee the right to privacy may be limited where the measure pursues a legitimate objective and is proportionate to achieve that objective. In this case, the objective of the provision 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 Human Rights Committee agreed that the requirement that the impugned law has a legitimate objective is satisfied but it questioned whether the measure is the least rights-restrictive way of achieving its legitimate objective, and therefore a proportionate limitation on the right to privacy.[149]

Proposed Division 3—Information generally contains proposed sections 67G and 67H. Proposed section 67G is in equivalent terms to existing section 65 (which is repealed by item 38). The effect of the amendment is to set out the requirements for the protection of information in a more orderly way so that the responsibilities of the NDIA and the Commission—including the offences relating to unauthorised use or disclosure of protected information—are separate and clear.[150]

Reviewable decisions

Currently Part 6 of Chapter 4 of the NDIS Act provides that certain decisions are reviewable, that reviewable decisions are to be reviewed by the CEO (or his or her delegate) who must confirm, vary or set aside the reviewable decision and substitute a new decision. A decision that has been reviewed in this way may be the subject of an application for further review to the Administrative Appeals Tribunal.

Item 50 of Schedule 1 to the Bill repeals and replaces section 99 to set out in table form those decisions that are reviewable decisions and who is the decision maker in respect of those decisions. This may be either the CEO (as currently) or the Commissioner, depending on the nature of the decision. Item 51 of Schedule 1 to the Bill repeals subsection 100(1) and inserts proposed subsection 100(1) which requires the decision-maker of a reviewable decision to give a written notice of that decision to each person who is directly affected by it. In addition, proposed subsection 100(1A) requires the notice to include a statement setting out any other appeal rights.

Currently Chapter 3 of the NDIS Act, which relates to participants and their plans, refers to the review of a participation plan. In order to avoid confusion, references to review in this context have been repealed and replaced with references to reassessment.[151]

Scrutiny of Bills Committee comments

In response to a request for advice from the Scrutiny of Bills Committee, the Minister has set out those decisions that are not reviewable decisions in the table below.

Table 1: non-reviewable decisions

Decision

Proposed section

Subject to

A decision to grant (or not to grant) financial assistance to a person or entity in relation to applications for registration/variations of registration. 73S Commonwealth grants guidelines
A decision to approve (or not to approve) a quality auditor 73U Based on accreditation through a third party accreditation body
Monitoring and investigations warrants, civil penalties and injunctions—must be issued by a court under the Regulatory Powers Act   Appeal to relevant court
A decision to issue an infringement notice (Regulatory Powers Act) 73ZL Appeal to relevant court

Source: Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 9 August 2017, p. 122.

Delegation

Currently, section 209 of the NDIS Act permits the Minister, by legislative instrument, to make the Rules. The section divides the types of Rules to be made into four categories:

  • the Minister must not make Category A Rules unless the Commonwealth and each host jurisdiction has agreed to the making of the rules[152]
  • the Minister must not make Category B Rules about an area, law or program of a host jurisdiction; or the commencement of the facilitation of the preparation of plans of participants who are identified (wholly or partly, and directly or indirectly) by reference to a host jurisdiction—unless the host jurisdiction has agreed to the making of the rules[153]
  • the Minister must not make Category C Rules unless the Commonwealth and a majority of host jurisdictions have agreed to the making of the rules[154] and
  • the Minister must not make Category D Rules unless each host jurisdiction has been consulted in relation to the making of the rules.[155]

Item 79 of Schedule 1 to the Bill amends the table in subsection 209(8) of the NDIS Act which sets out the Rules which are to be made in each category. The effect of the amendment is that the Rules to be made arising from this Bill will be Category D Rules. This means, for instance, that in making the NDIS Code of Conduct and the NDIS Practice Standards, each host jurisdiction must be consulted but there is no requirement that each agrees to the making of those Rules. This was of particular concern to the Minister for Housing, Disability and Ageing in the Victorian Government, Martin Foley. Mr Foley expressed his view that this ‘is inadequate and strongly believes that rules that relate to key elements of the Framework should be subject to agreement from all jurisdictions’.[156]

Item 68 of Schedule 1 to the Bill inserts proposed section 201A into the NDIS Act. Under the section the Minister may delegate to the Commissioner in writing his, or her, powers under section 209 to make the Rules which arise from the amendments in this Bill. In addition, item 67 of the Bill inserts proposed subsection 201(4) to put beyond that the power to make such Rules may not be delegated to the CEO of the NDIA.

Item 71 of Schedule 1 to the Bill inserts proposed section 202A into the NDIS Act so that the Commissioner may delegate to a Commission officer any or all of his or her powers under the Act, regulations or Rules.

Scrutiny of Bills Committee comments

Where broad delegations are provided for, the Scrutiny of Bills Committee considers that an explanation of why these are considered necessary should be included in the Explanatory Memorandum. However, the relevant Explanatory Memorandum is silent on this issue. That being the case the Scrutiny of Bills Committee requested advice from the Minister.

According to the Minister ‘a broad delegation is necessary to enable the Commission to regulate the national NDIS market in an efficient manner which is responsive to the rapidly emerging and changing NDIS market’. The Minister reiterated the advice contained in the Explanatory Memorandum to the Bill that the Commissioner’s registration and reportable incidents functions will be undertaken by a Registrar; the complaints functions will be undertaken by a Complaints Commissioner and the behaviour support function will be undertaken by a Senior Practitioner.[157]

Concluding comments

The Bill establishes the NDIS Quality and Safeguards Commission and empowers the Commissioner to undertake broad functions. On the one hand the Commissioner must give priority to protecting vulnerable persons who are living with a disability. On the other hand the Commissioner’s functions must assist in the development and education of a rapidly expanding number of NDIS providers.

The Bill contains extensive Rule making powers. In particular neither the NDIS Code of Conduct nor the NDIS Practice Standards are to be contained in the NDIS Act. This has, unsurprisingly, led to concerns amongst some stakeholders. However, the advice to the Scrutiny of Bills Committee from the Minister is worth repeating:

Separating the Rules from the Bill provides appropriate flexibility and enables the Commission to be responsive in circumstances where the NDIS market environment is uncertain and rapidly changing. The NDIS is still in transition and it is growing and evolving rapidly ... The rapid change in scale and complexity of the NDIS market means that unpredictable risks may emerge in the medium term. The Commission will need to deal promptly with new and emerging areas of risk in the effective regulation of NDIS providers, both now and into the future.[158]

In addition the Bill sets out a suite of compliance and enforcement powers that can be exercised by the Commissioner as set out in the infographic below.

a suite of compliance and enforcement powers that can be exercised by the Commissioner

Source: Explanatory Memorandum, National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, p. 36.

What needs to be remembered is that the NDIS is still in a transition phase. It is not yet fully operational nationally. That being the case, it is likely that as new risks emerge and are recognised legislative change will be needed. Given the vulnerability of the clients of the NDIS, it is important to be able to respond quickly.

The difficulty for the NDIS Quality and Safeguards Commission is the weight of stakeholder expectation. Many stakeholders will be watching closely to see how the Commissioner responds to complaints and how the compliance and enforcement powers which are at his, or her, disposal are used.

 


[1].         For the background to the NDIS see L Buckmaster and J Tomaras, National Disability Insurance Scheme Bill 2012, Bills digest, 72, 2012–13, Parliamentary Library, Canberra, 2013.

[2].         Article 16 of the Convention on the Rights of Persons with Disabilities, done at New York 30 March 2007, [2008] ATS 12 (entered into force for Australia 16 August 2008).

[3].         NDIS, ‘The NDIS in your area’, NDIS website.

[4].         Ibid.

[5].         NDIS, ‘Intergovernmental agreements’, NDIS website.

[6].         Editorial, ‘Protect the vulnerable, prosecute the culpable’, Age, 24 November 2014, p. 18.

[7].         Victorian Ombudsman, VO to investigate disability abuse reporting, media release, 8 December 2014; N McKenzie and R Baker, ‘Ombudsman to investigate Yooralla scandal’, The Age, 9 December 2014, p. 3.

[8].         The terms of reference, submissions to the Family and Community Development Committee, the Committee report and the Government response to that report are available on the inquiry homepage.

[9].         Family and Community Development Committee, Inquiry into abuse in disability services: final report, Parliament of Victoria, May 2016, p. xiii.

[10].      The terms of reference, submissions to the Community Affairs References Committee, the final report of the inquiry are available on the inquiry homepage.

[11].      Community Affairs References 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, The Senate, Canberra, 25 November 2015, p. 45.

[12].      The recommendations which relate to quality and safeguards are 1–5, 9, 13 and 18. Source: Australian Government, Australian government response to the Senate Community Affairs References Committee report: 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, 2 March 2017, p. 2.

[13].      ‘People with disability who are supported by disability service providers and engage in challenging behaviours that are perceived to be harmful to themselves or others are at risk of being subjected to restrictive practices. The National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector focuses on the reduction of the use of restrictive practices in disability services that involve restraint (including physical, mechanical or chemical) or seclusion. It aims to contribute to the promotion and full realisation of all human rights for people with disability, including liberty and security of the person and freedom from exploitation, violence and abuse ... Restrictive practices should only be used where they are proportionate and justified in order to protect the rights or safety of the person or others.’ Source: Department of Social Services (DSS), ‘National framework for reducing and eliminating the use of restrictive practices in the disability service sector’, DSS website, last updated 7 November 2014.

[14].      Australian Government, Australian government response to the Senate Community Affairs References Committee report: 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, op. cit.

[15].      Council of Australian Governments (COAG), ’COAG meeting communiqué’, COAG, 9 December 2016.

[16].      Victorian Council of Social Service, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, July 2017, p. 2.

[17].      Ernst and Young, Independent review of the NDIS Act, Canberra, December 2015, pp. 6–7.

[18].      COAG, COAG response to the independent review of the NDIS Act 2013, COAG, March 2017.

[19].      Details of the terms of reference, submissions to the Committee and the final report (when published) are available on the inquiry homepage.

[20].      Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 9 August 2017, pp. 107–124.

[21].      E Husar, ‘Second reading speech: National Disability Insurance Scheme Amendment (Quality Safeguards Commission and Other Measures) Bill 2017’, House of Representatives, Debates, 21 June 2017, p. 7277. See also, C Hayes, ‘Second reading speech: National Disability Insurance Scheme Amendment (Quality Safeguards Commission and Other Measures) Bill 2017’, House of Representatives, Debates, 21 June 2017, p. 7283.

[22].      For example Catholic Social Services Australia, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, 28 July 2017, p. 1.

[23].      Office of the Public Advocate (Queensland), Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, 21 July 2017, p. 1.

[24].      National Mental Health Consumer and Carer Forum, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, 8 August 2017, p. 1.

[25].      Victorian Council of Social Service, Office of the Public Advocate (Queensland), Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, op. cit., p. 21.

[26].      Disability Advocacy Network of Australia and the Australian Federation of Disability Organisations, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, August 2017, p. 16.

[27].      Explanatory Memorandum, National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, p. vi.

[28].      The Statement of Compatibility with Human Rights can be found at pages 1–16 at the end of the Explanatory Memorandum to the Bill.

[29].      Parliamentary Joint Committee on Human Rights, Report, 7, 8 August 2017, pp. 27–29.

[30].      Article 17 of the International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1994); article 22 of the Convention on the Rights of Persons with Disabilities, done in New York on 13 December 2006, opened for signature 30 March 2007, [2008] ATS 12 (entered into force for Australia 16 August 2008); article 16 of the Convention on the Rights of the Child, done in New York 20 November 1989, [1991] ATS 4 (entered into force for Australia 16 January 1991).

[31].      NDIS Act, proposed section 181A.

[32].      NDIS Act, proposed section 181B.

[33].      NDIS Act, proposed section 181U.

[34].      NDIS Act, proposed section 181V.

[35].      NDIS Act, proposed section 181L.

[36].      NDIS Act, proposed section 181T. Note that the Commissioner as the accountable authority under the Public Governance, Performance and Accountability Act 2013 may be terminated under section 30 of that Act, in the event that he, or she is found to have breached the relevant general duties.

[37].      Disabled People’s Organisations Australia, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, July 2017, p. 7.

[38].      Explanatory Memorandum, National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, p. 59.

[39].      Queensland Advocacy Incorporated, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, 2 August 2017, p. 21.

[40].      Disabled People’s Organisations Australia, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, op. cit., p. 7.

[41].      Section 8 of the PGPA Act defines a listed entity as any body (except a body corporate), person, group of persons or organisation (whether or not part of a Department of State); or any combination of bodies (except bodies corporate), persons, groups of persons or organisations (whether or not part of a Department of State) that is prescribed by an Act or the rules to be a listed entity. Note that section 10 of the PGPA Act provides that a listed entity is a Commonwealth entity.

[42].      Sections 15–19 of the PGPA Act set out the general duties of accountable authorities.

[43].      Sections 25–29 of the PGPA Act set out the general duties of officials.

[44].      Section 8 of the PGPA Act provides that the purposes of the Commonwealth entity include the objectives, functions or role of the entity.

[45].      Legislation Act, section 44.

[46].      NDIS Act, proposed subsection 181D(1).

[47].      Generally, unlike legislative instruments, notifiable instruments are not subject to Parliamentary scrutiny, nor are they subject to automatic repeal 10 years after registration: Legislation Act 2003, section 7.

[48].      NDIS Act, proposed section 181E.

[49].      NDIS Act, proposed section 181H.

[50].      DSS, ‘National framework for reducing and eliminating the use of restrictive practices in the disability service sector’, op. cit.

[51].      Community Affairs References 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, op. cit., pp. 91–2.

[52].      Ibid., p. 92.

[53].      NDIS Act, proposed paragraphs 181H(a)–(d).

[54].      Office of the Public Advocate (Queensland), Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, op. cit., p.1.

[55].      NDIS Act, proposed subsection 181D(4).

[56].      NDIS Act, proposed subsection 181D(3).

[57].      Explanatory Memorandum, National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, p. 50.

[58].      NDIS Act, proposed subsection 73B(1).

[59].      National Disability Insurance Agency, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, n.d., p.1.

[60].      NDIS Act, section 9 defines the term NDIS amount as an amount paid under the National Disability Insurance Scheme in respect of reasonable and necessary supports funded under a participant’s plan.

[61].      Section 31 of the NDIS Act sets out the principles of participation plans.

[62].      Under section 4AA of the Crimes Act 1914, a penalty unit is equivalent to $210. This means that the maximum penalty is $52,500.

[63].      NDIS Act, proposed paragraph 181F(a).

[64].      NDIS Act, proposed subsection 73C(1).

[65].      NDIS Act, proposed subsection 73C(2).

[66].      NDIS Act, proposed subsection 73C(3).

[67].      NDIS Act, proposed subsection 73C(4).

[68].      NDIS Act, proposed subsection 73C(5).

[69].      NDIS Act, proposed section 73D. This means that the maximum penalty is $12,600.

[70].      Senate Standing Committee of the Scrutiny of Bills, Scrutiny digest, 8, 9 August 2017, p. 112.

[71].      Ibid.

[72].      Item 7 of Schedule 1 to the Bill inserts the definition of approved quality auditor being a person or body approved by the Commissioner under proposed section 73U.

[73].      NDIS Act, proposed sections 73T and 73U.

[74].      Item 16 of Schedule 1 to the Bill inserts proposed section 11A into the NDIS Act so that each of the following is one of the key personnel of a person or entity: (a) a member of the group of persons who is responsible for the executive decisions of the person or entity (b) any other person who has authority or responsibility for (or significant influence over) planning, directing or controlling the activities of the person or entity.

[75].      NDIS Act, proposed subsection 73E(1).

[76].      NDIS Act, proposed subsection 73E(2).

[77].      NDIS Act, proposed subsection 73E(4).

[78].      NDIS Act, proposed subsection 73E(5).

[79].      NDIS Act, proposed paragraph 73F(2)(a).

[80].      NDIS Act, proposed paragraph 73F(2)(b). Proposed section 73V of the NDIS Act provides that the Rules may make provision for, or in relation to, a code of conduct that applies to either or both NDIS providers and persons employed or otherwise engaged by NDIS providers. Those rules are to be known as the NDIS Code of Conduct.

[81].      NDIS Act, proposed paragraph 73F(2)(c). Proposed section 73T of the NDIS Act provides that the Rules may make provision for or in relation to standards concerning the quality of supports or services to be provided by registered NDIS providers. Those rules are to be known as the NDIS Practice Standards.

[82].      NDIS Act, proposed subsection 73G(1).

[83].      NDIS Act, proposed section 73H.

[84].      NDIS Act, proposed section 73J.This means the maximum civil penalty is equivalent to $52,500.

[85].      NDIS Act, proposed sections 73L and 73M.

[86].      NDIS Act, proposed sections 73N and 73P respectively.

[87].      NDIS Act, proposed subsection 73P(2).

[88].      NDIS Act, proposed section 73Q. Note that keeping records is a requirement for registration as an NDIS provider: NDIS Act, proposed paragraph 73F(2)(d).

[89].      NDIS Act, proposed section 73R.

[90].      This means the maximum civil penalty is equivalent to $12,600.

[91].      NDIS Act, proposed subsection 73ZS(1).

[92].      NDIS Act, proposed subsection 73ZS(7).

[93].      NDIS Act, proposed subsections 73T(1) and (2).

[94].      NDIS Act, proposed subsection 73T(3).

[95].      NDIS Act, proposed section 73U.

[96].      NDIS Act, proposed paragraph 181F(c).

[97].      NDIS Act, proposed section 73W. Note that non-compliance is a breach of a condition of registration as an NDIS provider: NDIS Act, proposed paragraph 73F(2)(e).

[98].      NDIS Act, proposed paragraph 73X(2)(a).

[99].      NDIS Act, proposed paragraph 73X(2)(b).

[100].   NDIS Act, proposed paragraph 73X(2)(e).

[101].   NDIS Act, proposed paragraph 73X(2)(f).

[102].   Disability Advocacy Network of Australia and the Australian Federation of Disability Organisations, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, op. cit., p. 11.

[103].   Victorian Council of Social Service, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, op. cit., p. 11.

[104].   NDIS Act, proposed section 73Y. Note that non-compliance is a breach of a condition of registration as an NDIS provider: NDIS Act, proposed paragraph 73F(2)(g).

[105].   NDIS Act, proposed subsection 73Z(4).

[106].   NDIS Act, proposed subsection 73Z(5).

[107].   NDIS Act, proposed subsection 73Z(1).

[108].   The term officer has the same meaning as in the Corporations Act 2001: NDIS Act, proposed subsection 73ZA(3).

[109].   NDIS Act, proposed subsection 73ZA(2).

[110].   NDIS Act, proposed subsection 73ZB(1).

[111].   NDIS Act, proposed subsection 73ZC(1).

[112].   In this case, the threat may be express or implied; or conditional or unconditional. NDIS Act, proposed subsection 73ZC(3).

[113].   NDIS Act, proposed subsection 73ZC(2).

[114].   This means the maximum civil penalty is equivalent to $105,000.

[115].   Proposed subsection 73ZE(3) of the NDIS Act provides that an inspector (appointed under proposed section 73ZR) is an authorised applicant as well as an authorised person under Part 2 of the Regulatory Powers Act.

[116].   Regulatory Powers Act, subsections 20(1) and (4).

[117].   Regulatory Powers Act, subsection 21(2).

[118].   Regulatory Powers Act, subsection 22(1).

[119].   Regulatory Powers Act, section 18.

[120].   Section 39 of the Regulatory Powers Act contains the definition of evidential material.

[121].   Regulatory Powers Act, subsections 50(1) and (2).

[122].   Regulatory Powers Act, subsection 51(2).

[123].   Regulatory Powers Act, section 48.

[124].   Regulatory Powers Act, section 70.

[125].   NDIS Act, proposed subsections 73ZE(4) and 73ZF(3).

[126].   Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 9 August 2017, p. 116.

[127].   NDIS Act, proposed subsection 73ZK(1).

[128].   Regulatory Powers Act, subsection 82(1).

[129].   Regulatory Powers Act, subsection 82(2).

[130].   Regulatory Powers Act, subsection 82(6).

[131].   Regulatory Powers Act, section 85.

[132].   Regulatory Powers Act, sections 105 and 106.

[133].   Regulatory Powers Act, subsections 103(1) and (2).

[134].   Regulatory Powers Act, subsection 104(2).

[135].   NDIS Act, proposed subsection 73ZP(1).

[136].   Regulatory Powers Act, section 114.

[137].   Regulatory Powers Act, section 115.

[138].   NDIS Act, proposed subsections 73ZP(4) and (6).

[139].   Regulatory Powers Act, section 121.

[140].   This means the maximum civil penalty is equivalent to $12,600.

[141].   This means the maximum civil penalty is equivalent to $210,000.

[142].   NDIS Act, proposed section 73ZO.

[143].   NDIS Act, proposed subsection 73ZN(7).

[144].   NDIS Act, proposed subsection 73ZN(8).

[145].   Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 9 August 2017, p. 119.

[146].   Office of the Australian Privacy Commissioner, Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, 3 August 2017, p. 2.

[147].   Parliamentary Joint Committee on Human Rights, Report, 7, 8 August 2017, pp. 27–29.

[148].   The Statement of Compatibility with Human Rights can be found at pages 1–16 at the end of the Explanatory Memorandum to the Bill.

[149].   Ibid.

[150].   Item 48 in Schedule 2 to the Bill repeals existing section 61 of the NDIS Act which creates the offence of unauthorised access to protected information.

[151].   Items 18 and 22–43 of Schedule 2 to the Bill.

[152].   NDIS Act, subsection 209(4).

[153].   NDIS Act, subsection 209(5).

[154].   NDIS Act, subsection 209(6).

[155].   NDIS Act, subsection 209(7).

[156].   M Foley (Minister for Housing, Disability and Ageing, Government of Victoria), Submission to the Senate Standing Committee on Community Affairs, Inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, n.d., p.2.

[157].  Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 9 August 2017, p. 123.

[158].   Ibid., pp. 112–113.

 

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