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The National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021 (the bill) was introduced into the House of Representatives on 3 June 2021. The bill was subsequently referred to the Community Affairs Legislation Committee (the committee) on 17 June 2021, for inquiry and report by 12 August 2021.
Purpose of the bill
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The bill amends the National Disability Insurance Scheme Act 2013 (NDIS Act) 'to improve the support and protections to NDIS participants who may be at risk of harm'.
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The bill seeks to achieve this purpose by:
strengthening the NDIS Quality and Safeguards Commissioner's (Commissioner) compliance and enforcement powers;
strengthening information sharing provisions; and
clarifying the provider registration provisions contained in the NDIS Act.
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As noted in the Explanatory Memorandum, the bill implements a number of the recommendations of the Robertson Review, which examined the circumstances surrounding the death of an NDIS participant who died in South Australia in April 2020 after a substantial period of neglect.
NDIS Quality and Safeguards Commission
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The Commission was established under the NDIS Act as an independent agency to improve the quality and safety of services and supports for NDIS participants and 'to promote their choice, control and dignity'.
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Although the Commission was established on 1 July 2018, it did not initially operate in every jurisdiction. It commenced operation in New South Wales and South Australia in 2018, and has only been operating nationally since 1 December 2020.
Powers
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From July 2019, the Commission has been responsible for registering NDIS service and support providers, managing complaints and serious incident notifications, and carrying out investigations and enforcement action.
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The Commissioner can enforce civil penalties and has sanction powers, including:
applying conditions to registration, and suspending or revoking registration;
issuing compliance notices, infringement notices and banning orders; and
applying for injunctions or accepting enforceable undertakings.
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If a registered provider poses a danger to the health, safety or wellbeing of a person with disability, the Commissioner may immediately suspend the provider’s registration for up to 30 days, to consider whether to revoke its registration.
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The Commissioner may also issue a compliance notice or banning order that prevents a provider or a worker from providing any NDIS supports or services.
Jurisdiction
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Not all NDIS providers need to be registered with the Commission. Generally, participants may receive support from unregistered providers if they are self‑managed or plan managed. Participants with plans managed by the National Disability Insurance Agency (NDIA) may only use registered providers.
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While all NDIS providers (registered and unregistered) are subject to the NDIS Code of Conduct, there are some differences in the Commission’s oversight of registered and unregistered providers. For example, registered providers must notify the Commission about reportable incidents (such as allegations of abuse) but this requirement does not apply to unregistered providers.
Robertson Review recommendations
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The Department of Social Services explained that the Commission has implemented operational changes in response to recommendations 2 and 3 of the Robertson Review, and that legislative changes passed in November 2020 address recommendation 10 of the review.
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The bill further addresses six of the 10 recommendations from the Robertson Review. In summary, these recommendations are:
(1)
There should be a freer information flow between the Commission and the NDIA so the Commission can act earlier to identify NDIS participants who are vulnerable to harm or neglect.
(5)
The Commission should conduct occasional visits to assess the safety and wellbeing of vulnerable NDIS participants.
(6)
It should be made clear that the definition of reportable incident in the Act includes real or immediate threats of harm; and the definition of complaints should be clarified to include concerns and observations about supports and services.
(7)
The Commission should have ready access to information about the supports an NDIS participant is receiving and who their providers are.
(8)
The exchange of information between the Commission, the NDIA, state and territory emergency services and disability agencies needs to be improved.
(9)
Further to recommendation 8, some of the wording in specific subsections of the Act needs to be amended or expanded to broaden the types of information that can be exchanged.
Key provisions of the bill
Information sharing
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The NDIS Act allows the NDIA to collect, make a record of, use and disclose information for purposes as specified in the NDIS Act. Changes are proposed that would lower the threshold with which information can be shared and used by the NDIA and the Commission.
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For example, Item 7 of the bill would remove qualifiers such as 'serious' to enable the making of a record, disclosure and use of information where the NDIA considers it 'for the purpose of, or in relation to, preventing or lessening a threat (whether current or future)'. The Explanatory Memorandum notes that removing qualifiers such as 'serious' would be 'a reasonable and proportionate means of better protecting vulnerable participants'.
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Items 9 and 13 would explicitly allow for information to be disclosed between the NDIA and the Commission if the disclosure is for, or in connection with, the performance or functions of the NDIA or Commission.
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New paragraph 67(1)(d) would additionally provide for the disclosure of information to a state or territory for a specified purpose, including to carry out a screening check of an NDIS worker or 'for the purpose prescribed by those rules'.
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Item 8 would also enable the NDIA and the Commission to take into consideration past threats.
Reportable incidents
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Registered providers are subject to various reporting requirements, including that they must notify the Commission of a ‘reportable incident’, such as the death, serious injury or abuse of a person with disability.
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Amendments are proposed to enable the NDIS rules to prescribe the arrangements relating to the notification and management of these reportable incidents, which must be reported to the Commission. The bill clarifies that the notification and management of reportable incidents, in accordance with the NDIS rules, applies to registered NDIS providers.
Banning orders
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The bill would broaden the scope of persons who may be subject to a banning order to include 'a person who is or was a member of the key personnel of an NDIS provider'. The bill clarifies that key personnel—such as board members and chief executive officers—are to be held to the same standard as providers and workers. Moreover, the bill proposes amendments to ensure a banning order would continue to apply to a person, even when the person ceases to work for the relevant provider.
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The bill would enable the Commissioner to make a banning order 'subject to specified conditions', as well as allow for the variation of a banning order to involve imposing new conditions or varying or removing existing conditions.
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The contravention of a condition of a banning order would be subject to a civil penalty, which the Explanatory Memorandum notes would enable the enforcement of a condition of a banning order.
Compliance notices
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Currently, the Commissioner is required to maintain a register—the NDIS Provider Register—which must include information about registered NDIS providers and banning orders. Item 38 of the bill would allow the NDIS Provider Register to include information about a compliance notice that was in force in the past, as well as is in force.
Review of decisions
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The bill would allow for the review of specified decisions by the Commission, including a decision of the Commissioner to vary or revoke a compliance notice pursuant to subsection 73ZM(4) of the NDIS Act.
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Other review processes would be clarified, including that the decision-maker or a delegate of the decision-maker cannot review a decision if they were involved in making that decision.
Financial implications
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The Explanatory Memorandum notes that this bill has no financial impacts.
Legislative scrutiny
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The bill was considered by the Senate Standing Committee for the Scrutiny of Bills (scrutiny committee) and the Parliamentary Joint Committee on Human Rights (human rights committee).
Senate Standing Committee for the Scrutiny of Bills
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The scrutiny committee raised concerns that the bill provides the Commissioner with broad discretionary powers to impose conditions on banning orders and to impose significant civil penalties for breaches of those orders. In addition, the scrutiny committee noted its concern that the bill would allow for the disclosure of protected information as prescribed by the NDIS rules, rather than prescribed by primary legislation.
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In response to the concerns related to broad discretionary powers, the responsible minister advised:
A broad discretion to impose conditions on banning orders is needed so the Commissioner can tailor the orders to the particular circumstances of each case.
Requiring the Commissioner to consider the NDIS rules in making banning orders is unnecessary because the NDIS Act requires that compliance and enforcement responses are proportionate and risk is considered.
Significant penalties for serious breaches of banning orders are needed as a deterrent and to demonstrate that behaviour or actions that pose an unacceptable risk of harm to NDIS participants will not be tolerated.
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In relation to significant matters being outlined in delegated legislation, the minister explained that the amendment would allow flexibility and argued that providing high-level guidance in the NDIS Act could limit the entity types and disclosure purposes, and could be counterproductive. It was noted that changes to the NDIS rules are subject to consultation with the states and territories (and other key stakeholders), and are subject to a disallowance period before the Parliament.
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Following the minister's response, the scrutiny committee requested an addendum to the Explanatory Memorandum be tabled containing the key information provided by the minister.
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It drew these matters to the attention of senators and left it to the Senate as a whole to determine the appropriateness of these amendments.
Parliamentary Joint Committee on Human Rights
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The human rights committee raised the following issues:
Privacy concerns in relation to the information that would be published on the NDIS Provider Register.
The right to privacy and work in regard to the scope with which the Commission may make a banning order and the conditions that may be imposed.
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In response to concerns that information would be published on the NDIS Provider Register, the minister advised:
The amendment would make the scope of information that could be published consistent between registered and unregistered providers.
The information published on the NDIS Provider Register does not include information that would identify an individual (unless the provider is an individual).
The details published do not include any information that would be against the public interest or the interests of the people receiving supports or services from the provider.
The bill would note change the scope of the information published – only whether information about compliance notices that are no longer in force can be published.
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In relation to banning orders and the conditions that may be imposed, the minister advised:
A banning order is one of the most serious compliance tools the Commissioner can make and would only be contemplated after other compliance responses were found to be inappropriate.
The current provision is a 'blunt instrument' and the proposed amendments would allow for conditions to be tailored.
The NDIS Act guides the Commissioner as to what conditions should be imposed, so further legislative guidance is not required.
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The human rights committee concluded that questions remain as to whether the proposed amendments are proportionate to the impact on the affected individuals’ rights to privacy and work.
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The committee considered that the bill would be more proportionate if it contained legislative guidance as to the conditions that may be imposed on a banning order, and recommended that the statement of compatibility with human rights be updated to include the information provided by the minister.
Concurrent inquiry
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The powers of the Commission are also being reviewed by the Joint Standing Committee on the National Disability Insurance Scheme's inquiry into the operation of the NDIS Quality and Safeguards Commission.
Conduct of the inquiry
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The committee advertised the inquiry on its website and invited submissions by 12 July 2021. The committee received 17 submissions and held a public hearing in Canberra on 2 August 2021. Submitters and witnesses are listed at appendices 1 and 2.
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The committee thanks all who contributed to the inquiry.