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Australian Parliamentary Joint Committee on Human Rights |
2.1 This chapter considers responses to matters raised previously by the committee. The committee has concluded its examination of these matters on the basis of the responses received.
2.2 Correspondence relating to these matters is available on the committee's website.[1]
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Purpose
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This bill seeks to amend the National Disability Insurance Scheme Act
2013 to:
• prescribe additional circumstances in which reportable incidents
must be notified to the NDIS commission;
• amend disclosure of information provisions, including broadening
the circumstances under which information can be shared;
• allow the commissioner to place conditions on, or vary or revoke
the approval of quality auditors;
• allow conditions to be imposed on banning orders; and
• make a number of technical amendments
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Portfolio
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National Disability Insurance Scheme
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Introduced
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House of Representatives, 3 June 2021
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Rights
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Privacy; work; people with disability
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2.3 The committee requested a response from the minister in relation to the bill in Report 7 of 2021. [3]
2.4 The National Disability Insurance Scheme Act 2013 (NDIS Act) currently provides that the NDIS Provider Register must include certain information, including personal information, in relation to persons who are current or former NDIS providers or persons against whom a banning order is, or was, in force.[4] This bill proposes to expand the information that must be included on the NDIS Provider Register in relation to each person who is a registered NDIS provider.[5] Specifically, the NDIS Provider Register would be required to include information about a compliance notice if the person is, or was, subject to a compliance notice.[6] A compliance notice may be given to an NDIS provider by the NDIS Quality and Safeguards Commissioner (Commissioner) if the Commissioner is satisfied than 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 Act.[7] The compliance notice must include the information specified in subsection 73ZM(2) of the NDIS Act, including the name of the provider and the details of (possible) non-compliance.[8] This bill also proposes to amend the definition of 'protected Commission information' to exclude any information covered in whole or part by a publication on the NDIS Provider Register.[9]
2.5 Insofar as this bill facilitates greater information sharing and authorises the publication of compliance information about NDIS providers on a public website, thereby supporting NDIS participants to make informed decisions about their providers and supports, it appears to promote the rights of people with disability. The right to be free from all forms of violence, abuse and exploitation is enshrined in article 16 of the Convention on the Rights of Persons with Disabilities, which requires that 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.[10] Further, '[i]n order to prevent the occurrence of all forms of exploitation, violence and abuse, States Parties shall ensure that all facilities and programmes designed to serve persons with disabilities are effectively monitored by independent authorities'.[11]
2.6 However, by broadening the circumstances in which information can be published on the NDIS Provider Register and excluding any information published on the Register from being classified as 'protected Commission information', the measure also engages and limits the right to privacy. This is because the measure would authorise publishing on a public website the personal details (including personal reputational information) of persons who are, or have been, subject to a compliance notice. By amending the definition of 'protected Commission information' to exclude any information published on the NDIS Provider Register, such information would no longer be protected by the relevant privacy safeguards, including the use and disclosure provisions in the NDIS Act and the Privacy Act 1998 (Privacy Act).[12] Any information published on the NDIS Provider Register is accessible to the public, noting that an internet search of the person's name would bring up search results in relation to information contained on the Register. The right to privacy protects against arbitrary and unlawful interferences with an individual's privacy and attacks on reputation. It includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information. It also includes the right to control the dissemination of information about one's private life.[13]
2.7 The right to privacy may be subject to permissible limitations which are provided by law and are not arbitrary. In order for limitations not to be arbitrary, the measure must pursue a legitimate objective, be rationally connected to that objective and proportionate to achieving that objective.
2.8 In order to assess the compatibility of this measure with the right to privacy, further information is required as to:
(a) the scope of information about a compliance notice that would be published on the NDIS Provider Register, including whether the information would include the grounds on which a compliance notice was issued and whether that notice is subject to review;
(b) whether there are other less rights restrictive means to achieve the stated objective (for example, allowing the NDIS Provider Register to be accessed on request); and
(c) what safeguards, if any, are in place to ensure that an individual's right to privacy is adequately protected, particularly where a compliance notice is issued on a lower evidentiary threshold and/or subject to review.
2.9 The committee considered that the bill generally, which is designed to help prevent the violence, abuse, neglect and exploitation of persons with disabilities, promotes and protects the rights of persons with disabilities. The committee considered that this measure specifically promotes the rights of persons with disabilities by facilitating greater information sharing and authorising the publication of compliance information about NDIS providers on a public website, thereby supporting NDIS participants to make informed decisions about their providers and supports. However, the committee noted that in order to achieve these important objectives, the measure also necessarily limits the right to privacy by publishing on a public website the details of persons who are, or have been, subject to a compliance notice, and sought the minister's advice as to the matters set out at paragraph [2.8].
2.10 The full initial analysis is set out in Report 7 of 2021.
2.11 The minister advised:
(a) The scope of the information about a compliance notice that would be published on the NDIS Provider Register, including whether the information would include the grounds on which a compliance notice was issued and whether that notice was subject to review.
The amendment in item 38 of the Bill will address an inconsistency in the National Disability Insurance Scheme Act 2013 (NDIS Act) between registered and unregistered providers in relation to the scope of information required to be published on the NDIS Provider Register (the Register).
In relation to NDIS providers who are not a registered NDIS provider, the NDIS Act currently enables the Register to include information about any compliance notice to which the unregistered NDIS provider is, or was, subject. Please refer to subsection 73ZS(4)(f).
In contrast, for registered NDIS providers, the NDIS Act currently requires the Register to include information about any compliance notice that is in force. Please refer to paragraph 73ZS(3)G).
This inconsistency is currently addressed by the NDIS Quality and Safety Commissioner (the Commissioner) exercising a discretion under subsection 73ZS(6), which allows additional information (i.e. additional to that specified at subsection 73ZS(6)) to be included on the Register if the Commissioner is satisfied that the information is relevant to the provision of supports or services to people with disability. The Commissioner currently relies on this discretion to include information pertaining to registered NDIS providers with compliance notices that are no longer in force. The amendment in item 38 of the Bill will address the inconsistency and eliminate the need to use discretion for this purpose.
Under the amended provisions the scope of information that would be published on the Register about compliance notices that were issued to registered NDIS providers but are no longer in force would be consistent with the information that is currently being published on the Register about such compliance notices in relation to NDIS providers who are not registered NDIS providers. The information comprises:
• the date on which the notice was issued;
• the fact that it required the provider to take certain action in order to address non-compliances with specified provisions of the NDIS Act or rules; and
• the fact that notice is no longer in force.
The information does not include personal identifiers or enable identification of any individual. The exception is where the notice was issued to an NDIS provider who is an individual, in which case the person would be identified.
To date, the information on the Register does not identify that decisions made to issue a notice are reviewable decisions (noting that a request for a review of a reviewable decision does not affect the operation of the decision or prevent the taking of action to implement the decision: subsection 100(7) of the NDIS Act). But if the notice had been varied, whether as a result of a review or otherwise, the variation of fact is information included on the Register.
The law allows all information on the Register to be published except for any part that the Commissioner considers would be contrary to the public interest, or to the interests of one or more persons with disability receiving supports or services, to publish. The Commissioner is precluded from publishing any part in those circumstances. Please refer to sections 17 and 18 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018. Under the amendments proposed by the Bill, these rules would continue to apply to the publication of information about compliance notices that are no longer in force.
(b) Whether there are other less rights restrictive means to achieve the stated objective (for example allowing the NDIS Provider Register to be accessed on request).
Information that is readily available and easily accessible is a crucial component of supporting NDIS participants to exercise their right to choice and control, allowing them to make informed decisions in respect of the providers from whom they receive supports and services. Transparency and driving better performance is consistent with the expectation of good regulatory practice.
Having the Register available only on request would have a significant and detrimental impact on timely and easy access to information that is directly relevant to choosing providers with full awareness of any past behaviour that may pose a risk to their safety.
Sections 17 and 18 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 constitute a strong safeguard against inappropriate publication of information on the Register (see (a) above). Importantly, as Category D Rules, these cannot be amended without consultation with States and Territories, with any amendment subject to a disallowance period before Parliament.
(c) What safeguards, if any, are in place to ensure that an individual's right to privacy are adequately protected, particularly where a compliance notice is issued on a lower evidentiary threshold and/or subject to review?
For compliance action taken against a provider or worker to be listed on the Register the provider will have had to meet the evidentiary threshold necessary for the Commissioner to take regulatory action. All regulatory action taken by the Commissioner is a reviewable decision providing natural justice to providers and workers. The Register is adjusted to reflect any outcomes of a review. These processes take into consideration the privacy of a provider or worker which is balanced against the right of people with disability to be protected from the risk of harm.
Protecting people with disability is paramount and providing transparency around compliance action taken to inform choice and control is critical for a safe NDIS market.
2.12 As noted in the preliminary analysis, ensuring that NDIS participants are able to make informed decisions about their providers and supports, thereby promoting the rights of people with disability, is a legitimate objective, and making information about NDIS providers publicly accessible, is likely to be effective to achieve that objective. The key question is whether the measure is proportionate. In assessing the proportionality of the measure, relevant considerations include whether the limitation is only as extensive as is strictly necessary; whether there are other less rights restrictive means to achieve the objective; and whether there are appropriate safeguards accompanying the measure.
2.13 The scope of personal information published on the NDIS Provider Register (the Register) is relevant in considering whether the limitation on the right to privacy is only as extensive as is strictly necessary. The minister advised that the information published on the Register in relation to compliance notices that are no longer in force includes the date on which the notice was issued; the fact that it required the provider to take certain action to address the non-compliance; and the fact that the notice is no longer in force. The minister stated that the information does not include personal identifiers unless the NDIS provider is an individual, in which case the person would be identified. The minister noted that the information on the Register does not specify that the decision to issue a notice is reviewable (noting that a request for review does not affect the operation of the decision), but where a notice is varied as a result of a review, the variation of fact is recorded on the Register. The minister stated that all information on the Register can be published except for any part that the Commissioner considers would be contrary to the public interest or the interests of one or more persons with disability receiving supports or services.
2.14 The scope of information to be included on the Register appears to be quite broad, raising concerns that the potential interference with the right to privacy may be extensive. Of particular concern is the fact that the Register does not include information in relation to the grounds on which the notice was issued (particularly where the notice was issued on the basis of information that suggested the person may not be complying with the NDIS Act as opposed to the Commissioner being satisfied that the person is not complying with the NDIS Act); the fact that the decision to issue the notice is reviewable; and if applicable, the fact that the provider had sought review of the decision, or in the case of a compliance notice that is in force, the fact that the decision is under review. The exclusion of this information may mean the potential interference with an individual provider's right to privacy, which includes the right to reputation, is more extensive than is strictly necessary. Generally, the greater the interference with human rights, the less likely the measure is to be considered proportionate.
2.15 Noting the likely breadth of information published on the Register and the fact that the information would not be subject to existing privacy safeguards (as it would no longer be classified as protected information), it is not clear that the measure pursues the least rights restrictive means of achieving the stated objective. In considering other less rights restrictive options, the minister stated that having the Register available on request (rather than generally available via an internet search engine facility, e.g. via a Google search) would have a significant and detrimental impact on timely and easy access to information that is directly relevant to NDIS participants choosing their providers with full awareness of any past behaviour that may pose a risk to their safety. While perhaps more administratively burdensome (although the extent to which is not clear), making the information on the Register available on request or perhaps available via a secure online platform as opposed to being publicly accessible by default (noting that a search of an individual provider's name, for unrelated purposes, would bring up the information on the NDIS Register), would still appear to be a less rights restrictive way of achieving the stated objective. Questions therefore remain as to whether there are other less rights restrictive methods by which an NDIS participant could determine whether a provider is or was subject to a compliance notice, rather than publishing those details on a public website.[15] As noted in the preliminary analysis, in relation to equivalent sectors such as the aged care or child care sectors, it does not appear that there is an equivalent process to search for the names of employees who have been subject to sanctions in those industries.[16]
2.16 Finally, as to the safeguards accompanying the measure, the minister advised that sections 17 and 18 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 constitute a strong safeguard against inappropriate publication of information on the Register. These sections allow the Commissioner to publish the whole of the Register on the Commissioner's website except if the information would be contrary to the public interest, or to the interests of one or more persons with disability receiving supports or services.[17] While this discretion may protect the rights of people with disability by preventing sensitive information from being published, it does not appear to be an effective safeguard for protecting the right to privacy of individual providers. This is because it seems unlikely that interference with an individual NDIS provider's right to privacy, including reputation, would meet the threshold for non-publication (namely, the public interest or the interests of NDIS participants).
2.17 The other safeguard identified by the minister is the fact that regulatory decisions by the Commissioner are reviewable and the Register is adjusted to reflect any outcomes of a review. The minister states that these processes take into consideration the privacy of a provider or worker – although it is not clear how or to what extent – which is balanced against the right of people with disability to be protected from the risk of harm. While access to review is an important safeguard generally, it is unlikely to assist with the proportionality of this specific measure, as it does not appear that the Commissioner's decision to publish information on the Register is a reviewable decision. Thus, the availability of review for a decision to issue a compliance notice does not seem to be an effective safeguard to ensure that an individual provider's right to privacy is adequately protected in relation to information published on the Register. Noting that the existing privacy safeguards in the NDIS Act and the Privacy Act would no longer apply to information contained on the Register (as a result of the amended definition of 'protected Commission information') and in the absence of any other safeguards, concerns remain that the measure may not be accompanied by effective safeguards so as to ensure that any limitation on the right to privacy is proportionate.
Concluding remarks
2.18 In conclusion, as stated in the preliminary analysis, this measure appears to promote the rights of people with disability by facilitating greater information sharing and authorising the publication of compliance information about NDIS providers on a public website, thereby supporting NDIS participants to make informed decisions about their providers and supports. However, by broadening the circumstances in which information can be published on the Register and excluding any information published on the Register from being classified as 'protected Commission information', the measure also engages and limits the right to privacy. The right to privacy may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.19 While the measure pursues a legitimate objective and appears to be rationally connected to that objective, questions remain as to whether the measure is proportionate. Having regard to the scope of information published on the Register, it is not clear that the proposed limitation is only as extensive as is strictly necessary and is the least rights restrictive way of achieving the objective. It appears that there may be other, less rights restrictive ways, for an NDIS participant to determine whether an NDIS provider is, or was, subject to a compliance notice, such as making the information available via a secure online platform or at least not available via an internet search engine. Noting that the existing privacy safeguards in the NDIS Act and the Privacy Act would no longer apply to information contained on the Register, there are also concerns that the measure is not accompanied by sufficient safeguards. In the absence of other safeguards, the proposed measure does not appear to constitute a permissible limitation on the right to privacy.
2.20 The committee thanks the minister for this response. The committee notes the bill seeks to expand the information that must be published on the NDIS Provider Register and amend the definition of 'protected Commission information' to exclude any information published on the Register from being considered protected information. The effect of this measure would mean any person who is, or was, subject to a compliance notice would have their name and information about the compliance notice published on a public website, and that information would not be classified as protected information, meaning it would not be subject to existing privacy safeguards.
2.21 The committee considers that the bill generally, which is designed to help prevent the violence, abuse, neglect and exploitation of persons with disabilities, promotes and protects the rights of persons with disabilities. The committee considers that this measure specifically promotes the rights of persons with disabilities by facilitating greater information sharing and authorising the publication of compliance information about NDIS providers on a public website, thereby supporting NDIS participants to make informed decisions about their providers and supports. However, the committee notes that in order to achieve these important objectives, the measure also necessarily limits the right to privacy by publishing on a public website the details of persons who are, or have been, subject to a compliance notice. The right to privacy may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.22 The committee considers that while the measure pursues a legitimate objective and appears to be rationally connected to that objective, questions remain as to whether the measure is proportionate. Having regard to the scope of information published on the Register, and noting that information about individual providers would appear to be available via a general internet search engine, it is not clear to the committee that the proposed limitation on the right to privacy would be only as extensive as is strictly necessary and would necessarily be the least rights restrictive way of achieving the objective. While the committee acknowledges that making the relevant information available on request (as opposed to publicly available by default) may be more administratively burdensome, it notes that there may still be other less rights restrictive ways of achieving the objective, such as making the information available via a secure online platform, or at least not accessible via an general internet search. The committee notes that because the existing privacy safeguards in the NDIS Act and the Privacy Act would no longer apply to information contained on the Register, there are concerns that the measure may not be accompanied by sufficient safeguards. In the absence of other safeguards, the committee notes that the proposed measure may not constitute a permissible limitation on the right to privacy.
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Suggested Action
2.23 The committee recommends the statement of compatibility with human
rights be updated to reflect the information which has been
provided by the
minister.
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2.24 The committee draws these human rights concerns to the attention of the minister and the Parliament.
2.25 The NDIS Act currently provides that the Commissioner may make a banning order prohibiting or restricting specified activities by current or former NDIS providers and persons currently or formerly employed or engaged by an NDIS provider.[18] A banning order may also be made to prohibit or restrict a person from being involved in the provision of specified supports or services to people with disability.[19] The grounds on which a banning order may be made are set out in section 73ZN of the NDIS Act, including where the Commissioner reasonably believes that the person is not suitable to be involved in the provision of supports or services to people with disability.
2.26 The bill seeks to broaden the circumstances in which the Commissioner may make a banning order, so as to allow an order to be made against a person who is or was a member of the key personnel of an NDIS provider, such as current or former board members and chief executive officers of NDIS providers.[20] Where a banning order is made against a person who is a member of the key personnel of an NDIS provider, the bill proposes that the continuity of the order is not affected by the person ceasing to be such a member.[21] For instance, if a banning order is made against a board member of an NDIS provider, that banning order remains in force even when the person ceases to be a board member.
2.27 In addition, the bill seeks to amend the NDIS Act to enable banning orders to be made subject to specified conditions.[22] The NDIS Act currently provides that a banning order may apply generally or be of limited application and be permanent or for a specified period.[23] The bill proposes to allow the variation of a banning order by imposing new conditions on the order or varying or removing existing conditions.[24] The bill also proposes to make it a civil penalty offence to contravene a condition of a banning order, with a penalty of up to 1,000 penalty units ($222,000).[25]
2.28 As these amendments seek to expand the Commissioner's powers to make a banning order, including subject to specified conditions where appropriate, against a broader range of people who may pose a risk of harm to people with disability, it appears to promote the rights of persons with disabilities. In particular, the measure may promote the right to be free from all forms of violence, abuse and exploitation as enshrined in article 16 of the Convention on the Rights of Persons with Disabilities (as outlined above at paragraph [2.5]).
2.29 However, by allowing the Commissioner to make a banning order subject to potentially broad conditions against a wide range of people, including those who have ceased to be key personnel of an NDIS provider, the measure also engages and limits the rights to privacy and work. The content of the right to privacy is set out above at paragraph [2.6]. Banning orders limit the right to privacy by authorising interference with a person's private and work life, noting that the extent of the interference will depend on the scope of the banning order and the conditions imposed. The publication of banning orders on the NDIS Provider Register also limits the right to privacy, particularly the right to control the dissemination of information about one's private life, as such data contains personal reputational information that may affect an individual's ability to get employment in other, unrelat[26] sectors.26 The right to work provides that everyone must be able to freely accept or choose their work, and includes a right not to be unfairly depriv[27] of work.27 This right is limited to the extent that the measure adversely interferes with a person's work and results in the unfair deprivation of work. The statement of compatibility does not address these potential rights limitations in relation to this specific measure, and as such, there is no compatibility assessment provided.
2.30 These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.31 In order to assess the compatibility of this measure with the rights to privacy and work, further information is required as to:
(a) the breadth of conditions that may be imposed on a banning order, and why it is not considered necessary to include legislative guidance as to the kinds of conditions that may be imposed on a banning order;
(b) how the conditions would likely operate in practice in relation to a banning order against a person who has ceased to be a member of the key personnel of an NDIS provider. For example, would a former member be required to comply with banning order conditions, such as a requirement to undertake training or provide a copy of the banning order to prospective employers, if they are no longer engaged or involved in the disability service sector;
(c) whether there are other less rights restrictive means to achieve the stated objective; and
(d) what safeguards, if any, are in place to ensure that an individual's rights to privacy and work are adequately protected.
2.32 The committee considered that the bill generally, which is designed to help prevent the violence, abuse, neglect and exploitation of persons with disabilities, promotes and protects the rights of persons with disabilities. The committee considered that this measure specifically promotes the rights of persons with disabilities by expanding the Commissioner's powers to make banning orders, thereby strengthening protections for NDIS participants and ensuring that responsible personnel are held accountable in circumstances where a participant may be at risk of harm. However, the committee noted that in order to achieve these important objectives, the measure also necessarily limits the rights to privacy and work for persons against whom a banning order is made, and sought the minister's advice as to the matters set out at paragraph [2.31].
2.33 The full initial analysis is set out in Report 7 of 2021.
2.34 The minister advised:
(a) The breadth of conditions that may be imposed on a banning order, and why it is not considered necessary to include legislative guidance as to the kinds of conditions that may be imposed on a banning order.
The purpose of making a banning order is to remove a provider or worker entirely from the NDIS market or to restrict their involvement in that market. The order is made because the continued involvement of that provider or person would pose a risk to NDIS participants which cannot be averted in any other way. Making a banning order is one of the most serious compliance actions the Commission can take in response to conduct by a provider or worker. Banning orders are only contemplated after other possible compliance responses such as education, warning letters or infringement notices are considered but found to be inappropriate in the circumstances.
The current banning order provisions empower the Commissioner to prevent or restrict a provider or person who is or was employed or engaged by a provider (worker) from engaging in specified activities either permanently or for a specified period.
Most banning orders are made for specified periods. They mostly state that a provider or worker is banned from providing or being involved in the provision of disability support services, both directly and indirectly. This is to ensure that banned persons also do not work in a clerical or administrative role with a provider, which does not involve direct support work and contact with participants.
The current provisions are a 'blunt instrument' and do not allow the Commissioner to refine the banning order to address specific concerns in particular cases. The ability to impose conditions allows a more fine-tuned regulatory response to enhance participant safeguarding.
A broad discretion to impose conditions on a banning order enables the Commissioner to be flexible and tailor banning orders to the specific circumstances of each case. The Commissioner would be guided by paragraph 181D(4)(b) of the NDIS Act in deciding what conditions should be imposed. Paragraph 181D(4)(b) provides that the Commissioner must use best endeavours to conduct compliance and enforcement activities in a risk responsive and proportionate manner. In practice this would mean that when determining conditions on a banning order, the Commissioner would consider matters such as the risk to participants, the nature of the conduct which led to banning order being made, previous work, conduct history of the banned person, expressions or actions of remorse/commitment to rehabilitation/co-operation of the banned person, support for the banned person from NDIS participants or their families based on past experience of service provision by that person.
In some cases, it would be beneficial if the Commissioner could require the subject of the banning order to undertake action to remedy identified deficits in the way they have provided supports or services to people with a disability. This could be skill development or training in a particular area, such as medication management.
The Commissioner routinely reviews banning orders which are near the end of their term and can decide to extend them for a further period. Where a banning order is for a specified time, the Commissioner can consider the person's compliance with a condition ( e.g. if a person was banned until such time that they had successfully completed particular training) in deciding whether to vary the banning order to extend it. Compliance with the condition could demonstrate to the Commissioner that the banning order subject has addressed the concerns which led to the order being made.
The imposition of conditions can also provide greater safeguards where a banning order restricts a person from providing direct disability support services but not from providing indirect disability support services, such as working in an administrative or clerical role which involves no direct contact with people with disability. The condition might be that the worker provides a copy of the banning order with this restriction to each prospective employer. This ensures the employer knows not to employ the person in a direct service role. Without the power to impose this condition on the banned worker, the Commission relies on the honesty of the worker to inform the new employer of the restrictions in the banning order and to comply with it themselves, although the worker screening system provides some protections in this regard.
In this context, it is important to note that the Commissioner's practice is to notify worker screening units of banning orders which may then affect the worker's NDIS worker screening check. Registered providers must only engage or employ workers who have an NDIS clearance in a risk assessed role. However, an unregistered provider is not subject to this requirement and may choose to employ workers without an NDIS worker screening check. It may therefore be appropriate in some cases to impose a condition that the banned worker gives a copy of the banning order to any employer who is an NDIS provider to ensure the employer has knowledge of any restriction on their work duties.
Due to the nature of NDIS services there is no finite list of the types of conditions that can be imposed on providers or workers. Any attempt to include legislative guidance around conditions that can be imposed, such as including examples or types of conditions, introduces the risk of limiting the conditions the NDIS Commission can apply to those examples or types listed. This may inadvertently reduce protections to NDIS participants.
In addition, it is also envisaged that the inclusion of conditions like requiring workers to make any new NDIS employer aware of the banning order will promote awareness of the existence of such orders. At present, subsection 73ZN(9) of the NDIS Act makes it a requirement that the Commissioner notify an NDIS provider of a banning order where one is made against one of the provider's workers. If that worker changes employment there is currently no guarantee that the new employer will be made aware of the banning order.
(b) How the conditions would likely operate in practice in relation to a banning order against a person who has ceased to be a member of the key personnel of an NDIS provider. For example, would a former member be required to comply with banning order conditions, such as a requirement to undertake training or provide a copy of the banning order to prospective employers, if they are no longer engaged or involved in the disability service sector?
At present, a banning order can only prohibit or restrict a provider or worker from engaging in specified activities, without providing a clear avenue by which the provider or worker could seek to address the matters of concern that led to the ban. The capacity to make a banning order subject to specified conditions will allow the Commissioner greater flexibility to tailor banning orders to the specific circumstances of each case, increasing protections to NDIS participants.
In practice, where a person is subject to a banning order and is no longer involved in providing services under the NDIS, the banning order will remain in force. If a person wishes to return to the disability sector, they will need to have complied with the conditions in the banning order, such as completed training. Where a person is no longer involved in providing services and is not wishing to return to the disability sector, the Commissioner's remit does not allow further compliance and enforcement action to be taken.
A banning order is the most serious regulatory action that the Commission can apply to a person involved in the delivery of NDIS services. Any condition to notify prospective employers of the existence of the banning order would be limited to employers in the disability services sector, generally NDIS providers.
(c) Whether there are other less rights restrictive means to achieve the stated objective.
The Commissioner considers that the NDIS Act does not currently provide another means to achieve the stated objective. The NDIS Act allows the Commissioner to apply a banning order against a provider or worker to restrict or prohibit them from operating under the NDIS. A banning order is proportionate to the severity of the offence. The imposition of conditions provides a clearer way forward for banning order recipients to address the safeguarding issues that underpinned the making of the order and for prospective employers to manage risk.
This amendment provides the necessary means to improve protections for NDIS participants and promotes the rights of persons with disability to be free from exploitation, violence and abuse.
(d) What safeguards, if any, are in place to ensure that an individual's rights to privacy and work are adequately protected?
The imposition of conditions on banning orders would not affect or impact an individual's right to privacy and work, any more than section 73ZN as currently in force might affect those same rights. Specifically, in relation to privacy, the imposition of conditions would not materially change what is currently published on the NDIS Provider Register.
Protecting people with disability is paramount and providing transparency around compliance action taken to inform participant choice and provide assurance and control is critical for a safe NDIS market.
2.35 As noted in the preliminary analysis, the objectives of protecting people with disability from harm, holding responsible persons accountable in circumstances where an NDIS participant is at risk of harm, and minimising the risk of banned individuals from working with people with disability, are capable of constituting legitimate objectives for the purposes of international human rights law. Expanding the Commissioner's powers in relation to banning orders would likely be effective to achieve these objectives. The key question is whether the measure is proportionate. In this regard, further information was sought from the minister as to whether the proposed limitation is sufficiently circumscribed; how the banning order conditions would likely operate in practice so as to determine the extent to which the measure interferes with rights; whether there are less rights restrictive means to achieve the objectives; and whether the measure is accompanying by adequate safeguards.
2.36 Regarding the breadth of conditions that may be imposed on a banning order, the minister stated that the broad discretion to impose conditions enables the Commissioner to be flexible and tailor banning orders to the specific circumstances of each case. The minister stated that in imposing conditions, the Commissioner would be guided by paragraph 181D(4)(b) of the NDIS Act. This provision requires the Commissioner to use his or her best endeavours to conduct compliance and enforcement activities in a risk responsive and proportionate manner.[28] The minister stated that in practice this would mean that when determining conditions, the Commissioner would consider matters such as:
• the risk to participants;
• the nature of the conduct which led to the banning order being made;
• previous work and conduct history of the banned person;
• expressions or actions of remorse or commitment to rehabilitation or cooperation of the banned person; and
• support for the banned person from NDIS participants or their families based on past experience of service provision by that person.
2.37 In relation to the types of conditions that may be imposed, the minister noted that the Commissioner may impose conditions relating to skill development or training if they considered that it would be beneficial to remedying the identified deficit in the way the person had provided supports or services. Another condition that may be imposed would require the individual worker to provide a copy of the banning order – which may restrict the person from providing direct disability support services, but not indirect disability support services (such as administrative or clerical work) – to any prospective employers. The minister stated that such a condition would ensure the prospective employer knows not to employ the person in a direct service role and knows of any other restrictions on the person's work duties. The minister explained that this may be appropriate in the case of unregistered NDIS providers because they can employ workers without an NDIS worker screening check and may be unaware of a banning order imposed on a prospective worker.
2.38 While the minister provided some examples of the types of conditions that may be imposed, she stated that there is no finite list and any attempt to include legislative guidance around conditions, such as including examples or types of conditions, introduces the risk of limiting the conditions the NDIS Commissioner can apply. The minister stated that this may inadvertently reduce protections for NDIS participants. The minister further noted that the Commissioner routinely reviews banning orders and would consider a person's compliance with the order and any conditions in deciding whether to extend the order and the associated conditions for a further period.
2.39 By conferring a broad discretion on the Commissioner to impose any conditions on a banning order, the measure provides flexibility to treat different cases differently, having regard to the individual circumstances of each case. This flexibility may assist with the proportionality of the measure. However, the breadth of the discretion also gives rise to concerns that the measure may not be sufficiently circumscribed. International human rights law jurisprudence states that laws conferring broad discretion or rule-making powers must indicate with sufficient clarity the scope of any such power or discretion conferred on competent authorities and the manner of its exercise.[29] This is because, without sufficient safeguards, broad powers may be exercised in such a way as to be incompatible with human rights. As noted in the preliminary analysis, the explanatory materials provide some guidance as to how the Commissioner's discretion may be exercised. The minister's response provides further guidance as to the types of conditions that may be imposed and considerations that the Commissioner may have regard to in exercising their discretion (as outlined in paragraphs [2.36]–[2.38]). For example, the Commissioner may be guided by paragraph 181D(4)(b), which requires compliance and enforcement activities to be proportionate. This provision as well as the other matters that may be considered by the Commissioner, such as the risk to participants, the nature of the conduct and the individual's work history, would likely provide useful guidance as to the scope of the discretion and the types of conditions that may be imposed. However, it remains unclear why all such matters cannot be included in the legislation itself. The minister states that the inclusion of legislative guidance around conditions would risk limiting the Commissioner's powers to impose conditions. However, some form of legislative guidance, such as the inclusion of a non-exhaustive list of the types of conditions that may be imposed and the matters that should be considered in exercising the discretion – for example, whether the conditions are the least rights restrictive and the consequent interference with rights is proportionate and only to the extent necessary – would likely assist with the proportionality of this measure. In the absence of clear legislative guidance, concerns remain that the measure may not be sufficiently circumscribed.
2.40 Another relevant factor in assessing proportionality is the extent to which the measure may interfere with rights, noting that the greater the interference with rights, the less likely the measure is to be considered proportionate. Depending on the breadth of conditions imposed, there may be a significant interference with the rights of the person who is the subject of the banning order. How the conditions are likely to operate in practice is therefore relevant in considering the potential interference with rights. The minister advised that where a person is subject to a banning order but is no longer involved in providing NDIS services, the banning order will reman in force. If that person sought to return to the disability sector they would need to comply with the conditions of the banning order, such as completing training. If the person is no longer providing disability services and does not want to return to the disability sector, the minister stated that the Commissioner's remit does not allow further compliance and enforcement action to be taken against that person. This clarification regarding the scope of the Commissioner's enforcement powers alleviates the concern raised in the preliminary analysis that if a person was required to comply with conditions of a banning order in circumstances where they had left the disability sector (noting that failure to comply could result in a civil penalty of up to $222,000), this may constitute a significant interference with their rights to work and privacy. The fact that the Commissioner's powers to enforce compliance with banning order conditions appears to extend only to persons working in the disability sector or persons seeking to return to the disability sector, assists with the proportionality of this measure.
2.41 Regarding the existence of safeguards, as noted in the preliminary analysis, access to internal and external merits review and judicial review in relation to banning order decisions would serve as an important safeguard and assist with the proportionality of this measure. However, it is unclear whether access to review alone is sufficient, noting that the minister's response did not identify any other safeguards accompanying the measure.
Concluding remarks
2.42 In conclusion, as noted in the preliminary analysis, by expanding the Commissioner's powers to make a banning order, including subject to specified conditions, against a broader range of people who may pose a risk of harm to people with disability, the measure appears to promote the rights of persons with disabilities. However, by conferring a broad discretion on the Commissioner to make a banning order subject to potentially broad conditions against a wide range of people, including those who have ceased to be key personnel of an NDIS provider, the measure also engages and limits the rights to privacy and work. These rights may be subject to permissible limitations where the limitation pursues a legitimate objective, is rationally connected to that objective and is a proportionate means of achieving that objective.
2.43 The measure appears to pursue a legitimate objective and is rationally connected to that objective, and may be proportionate, though some questions remain in relation to this. In particular, the wide range of conditions that may be imposed on a banning order provides flexibility to treat different cases differently. Depending on how the conditions are applied and enforced in practice, this flexibility may assist with the proportionality of the measure as it would allow the Commissioner to tailor the banning order to each individual case. However, the breadth of the discretion also raises concerns as to whether the measure is sufficiently circumscribed, noting that there is no legislative guidance as to the types of condition that may be imposed and the matters that the Commissioner should consider when exercising their discretion. As such, some questions remain as to whether the measure will be exercised in a manner that is proportionate, noting that much will depend on the type of conditions imposed in practice.
2.44 The committee thanks the minister for this response. The committee notes the bill proposes to allow the Commissioner to impose a banning order on key personnel of NDIS providers and make banning orders subject to specified conditions, with contravention of a condition attracting a civil penalty of up to $222,000.
2.45 The committee considers that the bill generally, which is designed to help prevent the violence, abuse, neglect and exploitation of persons with disabilities, promotes and protects the rights of persons with disabilities. The committee considers that this measure specifically promotes the rights of persons with disabilities by expanding the Commissioner's powers to make banning orders, thereby strengthening protections for NDIS participants and ensuring that responsible personnel are held accountable in circumstances where a participant may be at risk of harm. However, the committee notes that in order to achieve these important objectives, the measure also necessarily limits the rights to privacy and work for persons against whom a banning order is made. These rights may be permissibly limited if it is shown to be reasonable, necessary and proportionate.
2.46 The committee considers that the measure pursues a legitimate objective and appears to be rationally connected to that objective, and may be proportionate, although some questions remain in relation to this. The committee notes that the wide range of conditions that may be imposed on a banning order provides flexibility to treat different cases differently. However, the breadth of the discretion also raises concerns as to whether the measure is sufficiently circumscribed, noting that there is no legislative guidance as to the types of condition that may be imposed and the matters that the Commissioner should consider when exercising their discretion.
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Suggested action
2.47 The committee considers that the proportionality of the measure may
be assisted were the bill amended to include legislative
guidance as to the
conditions that may be imposed on a banning order, for example, the inclusion of
a
non-exhaustive list of the types of conditions that may be imposed and
the matters that should be considered by the Commissioner in
exercising their
discretion, such as, whether the conditions are the least rights restrictive and
the consequent interference with
rights is proportionate and only to the extent
necessary.
2.48 The committee recommends that the statement of compatibility with
human rights be updated to reflect the information which has
been provided by
the minister.
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2.49 The committee draws these human rights concerns to the attention of the minister and the Parliament.
[1] See https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[2] This entry can be cited as: Parliamentary Joint Committee on Human Rights, National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants)
Bill 2021, Report 9 of 2021; [2021] AUPJCHR 84.
[3] Parliamentary Joint Committee on Human Rights, Report 7 of 2020 (16 June 2021), pp. 16-26.
[4] National Disability Insurance Scheme Act 2013, section 73ZS.
[5] National Disability Insurance Scheme Act 2013, subsection 73ZS sets out the information that must be included on the NDIS Provider Register.
[6] Schedule 1, item 38, amended subsection 73ZS(3)(j).
[7] National Disability Insurance Scheme Act 2013, subsection 73ZM(1).
[8] National Disability Insurance Scheme Act 2013, subsection 73ZS(2).
[9] Schedule 1, item 1, proposed section 9.
[10] Convention on the Rights of Persons with Disabilities, article 16(1).
[11] Convention on the Rights of Persons with Disabilities, article 16(3).
[12] See National Disability Insurance Scheme Act 2013, Chapter 4, Part 2, sections 60–67H.
[13] International Covenant on Civil and Political Rights, article 17.
[14] The minister's response to the committee's inquiries was received on 1 July 2021. This is an extract of the response. The response is available in full on the committee's website at: https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Human_Rights/Scrutiny_reports.
[15] The committee considered similar issues in relation to the publication of information about banning orders on the NDIS Provider Register. See Parliamentary Joint Committee on Human Rights, National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020, Report 8 of 2020 (1 July 2020) pp. 32–36; Report 10 of 2020 (26 August 2020) pp. 20–27.
[16] For example, sections 59 and 59A of the Aged Care Quality and Safety Commission Act 2018 provide that information about an aged care service or a Commonwealth-funded aged care service may be made publicly available (including any action taken to protect the welfare of care recipients), but this does not apply to information relating to action taken against employees of those service providers.
[17] National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 [F2020C01088] sections 17 and 18.
[18] National Disability Insurance Scheme Act 2013, section 73ZN.
[19] National Disability Insurance Scheme Act 2013, subsection 73ZN(2A).
[20] Schedule 1, item 28, amended subsection 73ZN(2); explanatory memorandum, pp. 9–10.
[21] Schedule 1, item 33, proposed subsection 73ZN(5B).
[22] Schedule 1, item 32, proposed subsection 73ZN(3)(c).
[23] National Disability Insurance Scheme Act 2013, subsection 73ZN(3).
[24] Schedule 1, item 36, proposed subsection 73ZO(2A).
[25] Schedule 1, item 35, amended subsection 73ZN(10)(b).
[26] International Covenant on Civil and Political Rights, article 17.
[27] International covenant on Economic, Social and Cultural Rights, articles 6–7. See also, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [4].
[28] National Disability Insurance Scheme Act 2013, paragraph 181D(4)(b).
[29] UN Human Rights Committee, General Comment No. 27, Freedom of Movement (Art. 12) (1999) [13]; Hasan and Chaush v Bulgaria, European Court of Human Rights App No.30985/96 (2000) [84]; Rotaru v Romania, European Court of Human Rights (Grand Chamber), Application No. 28341/95 (2000) [61]; Gillan and Quinton v UK, European Court of Human Rights, Application No. 415/05 (2010) [77].
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