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.
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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