National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 [2017] AUSStaCSBSD 180 (14 June 2017)

• National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017
• Broad delegation of administrative powers95
• Fair hearing rights97
• Merits review98
• Broad delegation of administrative powers100

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

Purpose	This bill seeks to amends the National Disability Insurance Scheme Act 2013 to establish an independent national NDIS Quality and Safeguards Commission
Portfolio	Social Services
Introduced	House of Representatives on 31 May 2017
Scrutiny principles	Standing Order 24(1)(a)(ii), (iii) and (iv)

Broad discretionary power ^[89]

1.135 Proposed paragraph 67E(1)(a) provides that the NDIS Quality and Safeguards Commissioner may, if he or she considers it to be in the public interest to do so, disclose information acquired pursuant to the Act 'to such persons and for such purposes as the Commissioner determines'. Subsection 67E(2) provides that in disclosing such information the Commissioner must act in accordance with the National Disability Insurance Scheme rules made for the purposes of section 67F. However, proposed section 67F provides that the rules 'may' make provision for and in relation to the exercise of the Commissioner's power to disclose such information, but there is no requirement that such rules be made.

1.136 The explanatory memorandum gives an example of when it might be necessary to disclose such information as 'for the protection of persons with disability or the investigation of a criminal offence'.^[90] It also explains why matters are to be set out in the rules rather than the primary legislation:

It is necessary to provide for the parameters of this discretion in the NDIS rules as the Commissioner will be operating within the context of complex mainstream systems and services. The purposes for disclosure, the bodies to whom disclosure can be made and the type of information which may be disclosed is likely to change over time as States and Territories withdraw from the regulation of disability services under the NDIS and establish new arrangements for the protection of vulnerable people under mainstream service systems.

1.137 The committee notes that the information that may be disclosed under this power may be extremely sensitive, relating as it does to a person's disability, and the provision as drafted is extremely broad. There is no requirement that rules be made in relation to the Commissioner's power to disclose the information and no information on the face of the primary legislation as to the circumstances in which the power can be exercised (other than that the Commissioner must be satisfied that it is in the public interest to make the disclosure). There is also no requirement that before disclosing personal information about a person, the Commissioner must notify the person, give the person a reasonable opportunity to make written comments on the proposed disclosure and consider any written comments made by the person.

1.138 The committee therefore requests the Minister's advice as to:

• why (at least high-level) rules or guidance about the exercise of the Commissioner's disclosure power cannot be included in the primary legislation; and

• why there is no positive requirement that rules must be made regulating the exercise of the Commissioner's power (i.e. the committee requests advice as to why the proposed subsections have been drafted to provide that the rules may make provision for such matters, rather than requiring that the rules must make provision to guide the exercise of this significant power).

Significant matters in delegated legislation^[91]

1.139 The bill enables a number of significant matters to be included in delegated legislation rather than set out in primary legislation. This includes enabling the National Disability Insurance Scheme rules to make provision for matters such as:

• conditions of registration of NDIS providers;

• prescribed circumstances as to when registration of a registered NDIS provider may be suspended or revoked;

• standards concerning the quality of support or services to be provided by registered NDIS providers;

• the establishment of an NDIS Code of Conduct for NDIS providers and their employees;

• requirements for complaints management and resolution regarding registered NDIS providers; and

• arrangements relating to the notification and management of reportable incidents in connection with support or services by registered NDIS providers.^[92]

1.140 In relation to the NDIS Code of Conduct which is to be established by the rules, proposed section 73V provides that a person who fails to comply with a requirement under the NDIS Code of Conduct is subject to a civil penalty of up to 250 penalty units (which for an individual could be up to $45,000 and for a body corporate could be up to $225,000).^[93] The explanatory memorandum explains that in addition to civil penalties, the full range of enforcement action and sanctions available to the Commissioner applies in relation to determining the regulatory response to non-compliance with the Code of Conduct.^[94]

1.141 No explanation is provided in the explanatory memorandum as to why it is necessary to include so much detail about the scheme in the rules and not in the primary legislation.

1.142 The committee’s view is that significant matters, such as the provisions listed at paragraph [1.139] above, in particular the establishment of a Code of Conduct, breach of which could be subject to significant penalties, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this regard, the committee requests the Minister’s advice as to:

• why it is considered necessary, in each instance, to leave the details set out in paragraph [1.139] to delegated legislation; and

• the type of consultation that it is envisaged will be conducted prior to the making of regulations establishing the NDIS rules and whether specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) can be included in the legislation (with compliance with such obligations a condition of the validity of the legislative instrument).

Broad delegation of administrative powers^[95]

1.143 Proposed sections 73ZE and 73ZF trigger the monitoring and investigation powers under the Regulatory Powers (Standard Provisions) Act 2014 in relation to new Part 3A of the National Disability Insurance Scheme Act 2013. Proposed subsections 73ZE(4) and 73ZF(3) provide that an authorised officer may be assisted 'by other persons' in exercising powers or performing functions or duties in relation to monitoring and investigation.

1.144 The proposed new provisions apply to any 'other persons' providing assistance. The powers granted to 'other persons' could be coercive, including entering premises, inspecting documents, operating electronic equipment, etc.^[96] There is no explanation in the explanatory memorandum of the need to confer such powers on 'other persons' and the bill does not confine who may exercise such powers by reference to any particular expertise or training.

1.145 The committee therefore requests the Minister's advice as to why it is necessary to confer monitoring and investigatory powers on any 'other person' to assist an authorised officer and whether it would be appropriate to amend the bill to require that any person assisting an authorised officer have specified skills, training or experience.

Fair hearing rights^[97]

1.146 Proposed section 73ZN provides that the Commissioner may, by written notice, make a banning order that prohibits or restricts specified activities by an NDIS provider in certain circumstances. Subsection 73ZN(7) provides that the Commissioner may only make a banning order against a person after giving the person an opportunity to make submissions to the Commissioner on the matter. However, subsection 73ZN(8) provides that subsection 73ZN(7) does not apply if the Commissioner's grounds for making the banning order include that there is an immediate danger to the health, safety or wellbeing of a person with a disability or where the Commissioner has revoked the registration of the person as a registered NDIS provider. This would appear to remove fair hearing requirements in these specified circumstances. The explanatory memorandum does not give a justification for limiting the right to a fair hearing in this way. The committee notes that it would be possible to reconcile the need for urgent action and the right to a fair hearing by providing for the banning order to have immediate effect but only making it permanent after a hearing has been provided.

1.147 The committee requests the Minister's advice as to the justification for removing the right of a person to make submissions to the Commissioner before a banning order is made in certain listed circumstances. The committee also requests the Minister's advice as to the appropriateness of amending the bill to provide that the banning order could have a temporary immediate effect in specified circumstances but that it would only become a permanent order after the affected person has been given an opportunity to make submissions to the Commissioner on the matter.

Merits review^[98]

1.148 Proposed section 99 sets out a table that lists all of the 'reviewable decisions' under the National Disability Insurance Scheme Act 2013. Under that Act, section 100 (as amended by the bill)^[99] provides that the decision-maker must notify a person directly affected by a reviewable decision of the right to request a review of the decision (or that there will be automatic review in certain circumstances), and section 103 provides that applications may be made to the Administrative Appeals Tribunal (AAT) for review of such decisions. The explanatory memorandum does not explain whether there are decisions that may be made under the Act that may not be described as a 'reviewable decision'. It is therefore difficult to assess whether there are any decisions that may be made under the Act that may not be subject to internal review and AAT review processes.

1.149 The committee requests the Minister's advice as to whether there are any decisions that could be made under the National Disability Insurance Scheme Act 2013 that are not listed as being a 'reviewable decision', and if any decisions are excluded that might have an adverse impact on an individual, the justification for not including these in the list of 'reviewable decisions'.

Broad delegation of administrative powers^[100]

1.150 Proposed section 202A provides that the Commissioner may delegate to 'a Commission officer' any or all of his or her power or functions under the NDIS (except in relation to privacy powers, which may only be delegated to an SES employee in the Commission).

1.151 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee’s preference is that delegates be confined to the holders of nominated officers or to members of the Senior Executive Service. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.152 The explanatory materials provide no information about why these powers are proposed to be delegated to any Commission officer at any level.

1.153 The committee has generally not accepted a desire for administrative flexibility as a sufficient justification for allowing a broad delegation of administrative powers to officials at any level.

1.154 The committee requests the Minister's advice as to why it is necessary to allow most of the Commissioner's powers and functions to be delegated to any Commission officer at any level and also requests the Minister's advice as to the appropriateness of amending the bill to provide some legislative guidance as to the scope of powers that might be delegated, or the categories of people to whom those powers might be delegated.

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[89] Schedule 1, item 45, proposed sections 67E and 67F. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(ii) of the committee’s terms of reference.

[90] Explanatory memorandum, p. 12.

[91] Schedule 1, items 48, proposed section 73H, 73N(1)(f), 73P(1)(f), 73T, 73V, 73X and 73Z. The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(iv) of the committee’s terms of reference.

[92] See Schedule 1, items 48, proposed section 73H, 73N(1)(f), 73P(1)(f), 73T, 73V, 73X and 73Z.

[93] See section 4AA of the Crimes Act 1914.

[94] Explanatory memorandum, p. 29.

[95] Schedule 1, item 48, proposed subsections 73ZE(4) and 73ZF2(3). The committee draws Senators’ attention to these provisions pursuant to principle 1(a)(ii) of the committee’s terms of reference.

[96] See Part 2 of the Regulatory Powers (Standard Provisions) Act 2014.

[97] Schedule 1, item 48, proposed section 73ZN. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iii) of the committee’s terms of reference.

[98] Schedule 1, item 50, proposed section 99. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(iii) of the committee’s terms of reference.

[99] See Schedule 1, items 51 to 56.

[100] Schedule 1, item 71, proposed section 202A. The committee draws Senators’ attention to this provision pursuant to principle 1(a)(ii) of the committee’s terms of reference.