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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(STRENGTHENING BANNING ORDERS) BILL 2020
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for the National Disability Insurance Scheme,
the Hon Stuart Robert MP)
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(STRENGTHENING BANNING ORDERS) BILL 2020
OUTLINE
This Bill broadens the circumstances in which the NDIS Quality and Safeguards
Commissioner may make a banning order against a provider or person and clarifies
the Commissioner's powers.
FINANCIAL IMPACT STATEMENT
There are no significant financial impacts of this Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(STRENGTHENING BANNING ORDERS) BILL 2020
NOTES ON CLAUSES
Abbreviations and Acronyms used in this explanatory memorandum
Act means the National Disability Insurance Scheme Act 2013;
Commission means the NDIS Quality and Safeguards Commission, as
defined in section 9 of the Act;
Commissioner means the Commissioner of the NDIS Quality and
Safeguards Commission, as defined in section 9 of the Act;
NDIS means the National Disability Insurance Scheme, as defined in section
9 of the Act.
Clause 1 sets out how the new Act is to be cited - that is, as the National Disability
Insurance Scheme Amendment (Strengthening Banning Orders) Act 2020.
Clause 2 provides a table setting out the commencement dates of the various
sections in, and Schedule to, the new Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule to the Bill has
effect according to its terms.
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Schedule 1 - Amendments
Summary
This Bill broadens the circumstances in which the NDIS Quality and Safeguards
Commissioner may make a banning order against an NDIS provider or other person
and clarifies the Commissioner's related powers.
Background
It has become apparent that the circumstances in which the NDIS Quality and
Safeguards Commissioner may issue banning orders (for the purposes of the NDIS)
are too narrow. The Commissioner does not have power to issue a banning order
against a person who is no longer employed or engaged by an NDIS provider.
However, it is common for providers to dismiss staff who are not undertaking their
roles appropriately, prior to the Commissioner being informed of the situation or
having a reasonable opportunity to take appropriate action in relation to those staff.
Additionally, even if a banning order is put in place for a provider's staff before they
leave the sector, there is a risk the order may lapse as soon as the staff member
leaves the sector. Under this Bill, the Commissioner will be empowered to make a
banning order against a provider's former employee or other staff. In addition
banning orders made against staff of a provider would not lapse if they cease to be
engaged by the provider or the provider leaves the sector.
The Commissioner also does not currently have power to make a pre-emptive
banning order against a person (whether an individual or otherwise) who has been
identified as unsuitable to work with people with disability as a result of their actions
in another field, such as aged care or child care. If a person comes to the attention
of the Commissioner, for example, because the Aged Care Quality and Safety
Commissioner has taken action in respect of the person, the NDIS Commissioner
will similarly be able to ban the person from working with people with disability in the
future.
If the Commissioner makes a banning order, the amendments will explicitly empower
the Commissioner to include detail of the order, including enough information to
identify the person, in the NDIS Provider Register. This is a publically available
register, which people with disability and their representatives may search to ensure
that providers they are using are appropriately registered and not subject to any
banning order.
The amendments will apply immediately to any person, regardless of when they
ceased to be engaged in working with people with disability.
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Explanation of the changes
Section 73ZN of the Act empowers the Commissioner to make a banning order.
Item 2 amends subsection 73ZN(2) to expand it to allow a banning order to be
made against a person who is, or was employed or otherwise engaged by an NDIS
provider. This will prevent such a person avoiding being banned by temporarily
ceasing their employment or engagement in the NDIS.
Item 3 inserts new subsection 73ZN(2A) after subsection 73ZN(2). This will
empower the Commissioner to make a banning order prohibiting or restricting a
person from being involved in the provision of specified supports or specified
services to people with disability if the Commissioner reasonably believes that the
person is not suitable to be so involved, the person has not previously been an NDIS
provider, and the person has not previously been employed or otherwise engaged by
an NDIS provider.
Item 4 inserts new subsection 73ZN(5A) after subsection 73ZN(5). For the
avoidance of doubt, this subsection provides that if a banning order is made under
subsection 73ZN(2) against a person who is employed or otherwise engaged by an
NDIS provider, the banning order remains in force despite the person's employment
or engagement ceasing.
As for current banning orders made under section 73ZN, merits review is available of
the decision to make a banning order (see section 99). This includes internal merits
review by a delegate of the Commissioner who was not involved in making the
reviewable decision (section 100) and that review decision may be externally
reviewed by the Administrative Appeals Tribunal (section 103).
Item 5 amends section 73ZS, which empowers the Commissioner to keep an NDIS
Provider Register. New subsection 73ZS(5A), inserted after subsection 73ZS(5),
allows the Register to include various pieces of information in relation to a person
against whom a banning order is made under either subsection 73ZS(2) or
subsection 73ZS(2A). The information included may be the person's name, their
ABN (if any), information about the banning order and any other matter prescribed by
the NDIS Rules.
It is not anticipated at this stage that the matters which may be included in the
Register prescribed by the Rules will extend to any highly sensitive or highly
personal information about the person subject to the banning order. However, in
some instances, such as where an individual or business has a common name, it
may be necessary to include further information, to publish an amount of information
that is sufficient to ensure people with disability and their carers can identify the
person. This would not extend, for example, to the nature of the incident that
prompted the making of the banning order. It may include, for example, a broad
description of the town or area in which the banned person was providing services.
The NDIS Rules are a disallowable instrument made under section 209 of the Act,
and are themselves subject to parliamentary tabling and scrutiny.
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Item 1 consequentially amends paragraph 55A(2)(a), which empowers the
Commission to obtain information from other persons for purposes related to
ensuring the integrity of the NDIS. Paragraph 55A(2)(e) allows information to be
sought about particular persons subject to a banning order. The amendment
generalises this section, so that it will also allow information to be required about the
new persons who may now be subject to a banning order.
Item 6 amends paragraph (r) at subsection 209(8) at the cell at table item 4, column
headed "Description" to allow Category D rules to be made for the purposes of new
paragraph 73ZS(5A)(d).
Item 7 is an application provision relating to the amendment at item 1.
The amendment of section 55A of the National Disability Insurance Scheme Act
2013 made by this Schedule applies in relation to a banning order made before, on
or after the commencement of this item.
Item 8 is an application provision relating to a banning order against a person who
ceases to be employed or engaged by an NDIS provider. The amendment of
subsection 73ZN(2) of the National Disability Insurance Scheme Act 2013 made by
this Schedule applies in relation to a person who ceased to be employed or engaged
by an NDIS provider before, on or after the commencement of this item.
Subsection 73ZN(5A) of the National Disability Insurance Scheme Act 2013, as
inserted by this Schedule, applies in relation to the following:
(a) a banning order made on or after the commencement of this item;
(b) a banning order made before the commencement of this item, where
the person against whom the order is made ceases to be employed or otherwise
engaged by the NDIS provider on or after that commencement.
Subsection 73ZS(5A) of the National Disability Insurance Scheme Act 2013, relating
to the NDIS Provider Register, as inserted by this Schedule, applies in relation to a
banning order made before, on or after the commencement of this item.
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Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(STRENGTHENING BANNING ORDERS) BILL 2020
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The NDIS Act 2013 currently provides for a banning order that prohibits or restricts a
registered or unregistered NDIS provider or their employees or other staff from
delivering NDIS services. However, the wording of the legislation limits this power to
those currently delivering services under the NDIS. This means, for example, a
banning order cannot be issued to a person who was employed by an NDIS provider
but is no longer.
The objective of this Bill is to expand the NDIS Commissioner's powers to allow a
banning order to be made against such a person. This means the NDIS
Commissioner may issue a banning order to an employee who has been dismissed
by an NDIS provider because of the misconduct leading to such an order, for
instance, or who is employed by a provider that has closed its NDIS service arm to
avoid being subject to a ban. Further, the Bill provides that if a banning order is
made against a person the banning order remains in force despite the person's
ceasing to deliver NDIS services.
Importantly, the Bill also allows for the NDIS Commissioner to proactively take
banning action against a person (whether an individual or otherwise) that may be
considered unsuitable to work with people with disability as a result of their actions in
another field, such as aged care or child care. If a person comes to the attention of
the Commissioner, for example, because the Aged Care Quality and Safety
Commissioner has taken action in respect of the person, the NDIS Commissioner
will be able to consider the circumstances and make their own determination on
whether to ban the person from working with people with disability in the NDIS
before they commence in the NDIS.
If the NDIS Commissioner makes a banning order, the Bill also empowers the NDIS
Commissioner to include detail of the order, including enough information to identify
the person, in the NDIS Provider Register. This is a generally publically available
national register, which people with disability and their representatives may search to
ensure that providers they are using are appropriately registered and not subject to
any banning order.
The amendments in the Bill will apply immediately to any person, regardless of when
they ceased to be engaged in working with people with disability.
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Statement of compatibility with human rights
Human rights implications
The Bill engages the following rights under international human rights law:
the rights of people with disabilities, especially Article 16 of the Convention on
the Rights of Persons with Disabilities (CRPD);
the right to work (Article 6) of the International Covenant on Economic, Social
and Cultural Rights (ICESCR); and
the right to privacy in Article 17 of the International Covenant on Civil and
Political Rights (ICCPR).
Rights of people with disability - Article 16 of the CRPD
Article 16 of the CRPD requires that States Parties take measures to protect people
with disabilities from all forms of exploitation, violence and abuse. The Bill promotes
the rights of people with disability to be free from exploitation, violence and abuse,
consistent with Australia's obligations by ensuring that the supports and services
provided through the NDIS are delivered by a suitable workforce.
This Bill broadens the circumstances in which the NDIS Quality and Safeguards
Commissioner may make a banning order against a person (provider or employee)
and clarifies the Commissioner's powers. Broadening the NDIS Commissioner'
powers promotes the rights of people with disability by:
sending a strong signal to the community as a whole about the priority placed
on the rights of people with disability to be safe and protected;
ensuring appropriate regulatory action is taken against providers and
employees who do cause harm to prevent them causing further harm in the
future; and
reducing the potential for providers and employees who pose a risk to people
with disability from entering the NDIS market.
This recognises that some NDIS participants are amongst the most vulnerable
people in the community and that people with disability have the right to be protected
from exploitation, violence and abuse.
The Bill ensures that persons who pose risk of harm to people with disability, are
excluded from delivering NDIS services and supports. This promotes the right of
people with disability to live free from abuse, violence, neglect and exploitation,
consistent with Australia's obligations.
Right to work - Article 6 of the ICESCR
Article 6 of the ICESCR recognises the right to work and 'includes the right of
everyone to the opportunity to gain his living by work which he freely chooses or
accepts'. This right applies to workers who work with people with disability, including
NDIS participants.
By providing a broad power to ban workers from delivering NDIS services and
supports, this Bill limits Article 6 of the ICESCR.
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Statement of compatibility with human rights
The existing provisions of section 73ZN establish clear boundaries on the use of the
banning order, ensuring that it is solely used to ensure a suitable NDIS workforce
and to uphold the requirements of Article 16 of the CRPD. This Bill only extends and
clarifies section 73ZN to the extent necessary to ensure that banning orders can be
applied despite the current employment status or sector of an individual. The use of
banning orders will still be subject to the same conditions and protections for
workers. As a proportionate regulator, the NDIS Commission has a flexible range of
powers to respond to incidents and risks in the NDIS, ensuring that banning orders
are only used in the most serious cases where they are appropriate.
Right to privacy - Article 17 of the ICCPR
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy. The right to privacy includes respect for
informational privacy, including in respect of storing, using and sharing private
information and the right to control the dissemination of private information. For
interference with privacy not to be arbitrary, it must be in accordance with the
provisions, aims and objectives of the ICCPR and should be reasonable in the
particular circumstances. Reasonableness in this context incorporates notions of
proportionality to the end sought and necessity in the circumstances.
The NDIS Provider Register is expected to hold information about the identity of
persons who had a banning order made against them by the NDIS Commissioner,
including enough information to identify the person. The register will be generally
publically available to allow people with disability and their representatives to search
to help ensure that providers they are using are appropriately registered and not
subject to any banning order. This is consistent with the objective to ensure that
information about whether a person who works, or seeks to work, with people with
disability poses a risk to such people, is current, accurate, and available to all States
and Territories, and to employers engaging workers in the NDIS.
The range of information that may be contained on the NDIS Provider Register is
limited to information necessary for the performance of the Commissioner's functions
and for the purposes of the register set out in the Bill. The Register will not contain
detailed information on the circumstances leading to the banning order, highly
sensitive information relied on to support the banning decision, or information about
a person's sexual identity or preferences.
The range of information that will be shared with persons or bodies will be
proportionate and necessary for the objective of minimising the risk of banned
persons delivering NDIS supports and services to people with disability under the
NDIS.
All personal information stored on the register is 'protected Commission information'
under the Act. and will be handled in accordance with rules under section 73Z(7) of
the Act concerning publication of the register and the limitations placed on the use
and disclosure of protected Commission information under the Act, the Privacy Act
1988, and any other applicable legislation. Information will be only dealt with where
reasonably necessary for the fulfilment of the Commissioner's lawful and legitimate
functions, or as otherwise permitted under section 67A of the Act in the case of
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Statement of compatibility with human rights
employers. The penalty provisions in sections 67B to 67D of the Act will also apply
to any unauthorised disclosure of information in respect of the Register.
Information on the register may also be used for policy development, evaluation and
research purposes. Personal information used for this purpose will be de-identified in
accordance with the requirements of the Office of the Australian Information
Commissioner and used for the Commissioner's core functions. These requirements
will be addressed through the Commission's standard operating procedures.
Conclusion
The Bill advances the protection of the rights of people with disability in Australia
consistent with the CRPD, particularly in relation to preventing exploitation, violence
and abuse in the disability sector. To the extent the Bill impinges on the human
rights of workers, these impositions are reasonable, necessary and proportionate to
achieving the protection of people with disability and confidence in the safety of the
NDIS market, thereby ensuring the long-term integrity and sustainability of the NDIS.
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Statement of compatibility with human rights
[Circulated by the authority of the Minister for the National Disability Insurance
Scheme, the Hon Stuart Robert MP]
2019-2020
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