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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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This bill seeks to amends the National Disability Insurance Scheme Act
2013 to establish an independent national NDIS Quality and Safeguards
Commission
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Portfolio
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Social Services
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Introduced
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House of Representatives on 31 May 2017
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Bill status
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Before Senate
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Scrutiny principles
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Standing Order 24(1)(a)(ii), (iii) and (iv)
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2.187 The committee dealt with this bill in Scrutiny Digest No. 6 of 2017. The Minister responded to the committee's comments in a letter dated 27 June 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.[62]
Broad discretionary power[63]
Initial scrutiny – extract
2.188 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.
2.189 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'.[64] 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.
2.190 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.
2.191 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).
Minister's response
2.192 The Minister advised:
As noted by the committee, the explanatory memorandum explains that the rationale for matters being set out in the rules rather than the primary legislation is that:
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.[65]
States and Territories will remain responsible for quality and safeguards arrangements for mainstream services to people with disability such as health, education and child protection. It is therefore necessary to adapt guidance about the exercise of the Commissioner's disclosure power to the arrangements in each State and Territory during transition to the Commission's regulatory arrangements for NDIS providers.
In relation to the requirement that rules be made to regulate the exercise of the Commissioner's powers, the intention of the reference in subsection 67E(2) to 'the NDIS rules' rather than 'any NDIS rules', is that the Commissioner can only make disclosures under the relevant provisions if there are rules in place. In other words, the existence of the rules is a condition precedent, the satisfaction of which is necessary before a disclosure can be made.
A draft of the NDIS (Protection and Disclosure of Information - Commission) Rules is attached.[66] The Department is currently consulting with the Office of the Australian Information Commission and States and Territories about these draft rules before consulting with peak bodies representing people with disability and providers. It is the intention that these rules be made to commence at the same time as Schedule 1 of the Bill establishing the Commission.
The Bill provides, at paragraph 181D(4)(a), for the Commissioner to use his or her best endeavours to provide opportunities for people with disability to participate in matters that relate to them and to take into consideration the wishes and views of people with disability in relation to those matters. This will guide the Commissioner in the disclosure of information.
Careful consideration has been given to ensuring any personal information held by the Commission is given due and proper protection. There are, however, concerns about including a requirement along the line suggested by the committee for the Commissioner to notify and receive submissions from a person, as a condition precedent to any disclosure on the basis that this would compromise situations of urgency such as where a child is at risk of harm or there are serious allegations of neglect, abuse or exploitation. The protections in relation to personal information contained in the Bill essentially cover the field and override State and Territory laws requiring mandatory reporting for example, section 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW). Provision for the facilitation of urgent disclosures by the Commissioner is consistent with the NDIS (Protection and Disclosure of Information) Rules and operational policy which govern the disclosure of information by the CEO of the NDIA.
Committee comment
2.193 The committee thanks the Minister for this response. The committee notes the Minister's advice that it is necessary to adapt guidance about the exercise of the Commissioner's disclosure power to the arrangements in each State and Territory during a transition period. The committee also notes that it is intended that the Commissioner can only make disclosures under the relevant provisions if there are rules in place, and it is intended that these rules will commence at the same time as Schedule 1 to the bill commences. The committee also notes the advice that the bill provides that the Commissioner must use his or her best endeavours to provide opportunities for people with disability to participate in matters relating to them and take into account their views and wishes, and that this will guide the Commissioner in the disclosure of personal information. The committee further notes the Minister's advice that there are concerns about including a requirement in the bill that the Commissioner should notify and receive submissions from a person before disclosing personal information, as this would compromise situations of urgency.
2.194 The committee understands that there is a need to adapt guidance about the exercise of the Commissioner's disclosure powers during the transition to the Commission's regulatory arrangements. However, the committee reiterates that the information that may be disclosed by the Commissioner may be extremely sensitive information (relating to a person's disability) and there are limited restrictions in the primary legislation as to when that information may be disclosed.
2.195 The committee notes that the draft rules provided to the committee in confidence include a provision stating that the Commissioner is to use his or her best endeavours to provide opportunities for people with disability affected by a proposed disclosure to comment on the disclosure and take those comments into account; seek informed consent for disclosure; or provide de-identified information. This is subject to a qualification that the Commissioner is not required to do so if there is an immediate danger to the health, safety or wellbeing of a person with a disability. The committee considers this to be an important safeguard, however, it is unclear why such a safeguard cannot be included in the primary legislation, which would allow for greater parliamentary oversight. Including an exception for urgent situations (as is currently provided for in the draft rules) would appear to address the Minister's stated concern regarding situations of urgency.
2.196 From a scrutiny perspective, the committee considers it would be appropriate that the bill provide at least high-level guidance about the exercise of the Commissioner's disclosure powers, including that affected persons be consulted before personal information is disclosed, except in specified urgent circumstances.
2.197 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.198 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of the Commissioner's broad discretionary power to disclose personal information.
Significant matters in delegated legislation[67]
Initial scrutiny – extract
2.199 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.[68]
2.200 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).[69] 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.[70]
2.201 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.
2.202 The committee's view is that significant matters, such as the provisions listed at paragraph [2.8] 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 [2.8] 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).
Minister's response
2.203 The Minister advised:
The Bill sets out the core functions and framework for the Commission, and the NDIS rules provide the detail necessary for supporting the Commission's regulatory activities. The Commission will be established in jurisdictions over time and some flexibility will be needed to allow adjustments for the lessons learnt from the Commission's operations in participating jurisdictions.
Separating the rules from the Bill provides appropriate flexibility and enables the Commission to be responsive in circumstances where the NDIS market environment is uncertain and rapidly changing. The NDIS is still in transition and it is growing and evolving rapidly. Currently the NDIS involves almost 7,000 providers with about 73,000 workers, supporting about 75,000 participants with approved plans, and in full scheme this is expected to grow to 13,500-40,000 providers with perhaps 160,000 workers, supporting over 460,000 participants. These providers and workers will include current disability service providers and new entrants, including a number of emerging new "digital disrupter" models with "Uber" type service provision. The rapid change in scale and complexity of the NDIS market means that unpredictable risks may emerge in the medium term. The Commission will need to deal promptly with new and emerging areas of risk in the effective regulation of NDIS providers, both now and into the future. It is therefore appropriate that these aspects of the scheme be covered by rules that can be adapted and modified in a timely manner.
The following draft rules are attached for the Committee's consideration:[71]
• NDIS (Protection and Disclosure of Information - Commission) Rules
• NDIS (Incident Management and Reportable Incidents) Rules
• NDIS (Complaints Management and Resolution) Rules
• NDIS Practice Standards Rules[72]
• NDIS Code of Conduct Rules[73]
These rules are subject to ongoing consultation with States and Territories and peak bodies representing people with disability and providers.
The Bill codifies a list for conditions of registration at proposed section 73F and outlines the circumstances in which the registration of a registered NDIS provider may be suspended or revoked (at sections 73N and 73P).
All of the rules are subject to consultation with States and Territories (item 79) with rules relating to behaviour support and worker screening subject to agreement with host jurisdictions as they interact with State and Territory laws and policies (item 78).
The draft NDIS Code of Conduct was developed in consultation with States and Territories and peak bodies and is currently the subject of public consultation, accompanied by a discussion paper which can be found at the following link: www.engage.dss.gov.au/ndis-code-of-conduct-consultation/
The NDIS Code of Conduct will cover a diverse range of NDIS providers (both registered and unregistered), from lawn mowing services through to providers of residential accommodation for people with disability. It is the mechanism through which participants, including self-managing participants will be empowered to enforce standards of conduct and service to which an appropriate and escalating range of sanctions will apply. The NDIS Code of Conduct will need to be subject to regular review and consultation to ensure that it is responsive to the needs and expectations of people with disability, providers and the community in terms of the appropriate standards and quality and safety of NDIS funded supports and services.
In addition to the consultation obligations in section 17 of the Legislation Act 2003, the Bill provides for the Commissioner to consult and cooperate with persons, organisations and governments on matters relating to his or her functions including in the course of making legislative instruments should the power to make rules be delegated to the Commissioner.
The consultation approach that has been adopted throughout the development of the NDIS Quality and Safeguarding Framework, the Bill and continuing development of the rules has proven to be effective and appropriate.
Committee comment
2.204 The committee thanks the Minister for this response. The committee notes the Minister's advice that the Commission will be established in jurisdictions over time and some flexibility is needed to allow for adjustments for lessons learnt from participating jurisdictions, so separating the rules from the bill provides appropriate flexibility and allows for responsiveness with rules that can be adapted and modified in a timely manner. The committee also notes the advice that the rules are currently subject to ongoing consultation and will need to be subject to regular review and consultation to ensure it is responsive to the needs and expectations of people with disability, providers and the community. The committee also notes the Minister's advice that in addition to the consultation obligations in section 17 of the Legislation Act 2003, the bill provides for the Commissioner to consult relating to his or her functions, including the making of legislative instruments 'should the power to make rules be delegated to the Commissioner'. However, the committee notes that the power under section 209 of the National Disability Insurance Scheme Act 2013 is for the Minister to make the rules.
2.205 The committee appreciates the importance of flexibility and responsiveness in this area, however, reiterates that the bill proposes enabling a number of significant matters to be included in delegated legislation. The committee considers that, in general, significant matters should be included in primary legislation in order to be subject to the full range of parliamentary scrutiny, and not left to subordinate legislation. In particular, the committee remains concerned that the bill establishes 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[74] and subject to the full range of enforcement action and sanctions available to the Commissioner, yet no detail is provided in the bill as to what type of failure to comply will be subject to this sanction.
2.206 In addition, while the committee welcomes the Minister's commitment to consultation, there is nothing on the face of the bill that requires the Minister to undertake such consultation (other than an existing requirement that rules only be made when a host jurisdiction has agreed to the making of those rules).[75] The committee takes this opportunity to reiterate its general view that where the Parliament delegates its legislative power in relation to significant regulatory schemes it is appropriate that specific consultation obligations (beyond those in section 17 of the Legislation Act 2003) are included in the bill and that compliance with these obligations is a condition of the validity of the legislative instrument.
2.207 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.208 The committee reiterates its scrutiny view that significant matters, particularly the establishment of a Code of Conduct (breach of which could be subject to significant penalties), are more appropriate for primary legislation and it would be appropriate for specific consultation obligations to be included in the bill. It draws these scrutiny concerns to the attention of Senators and leaves this issue to the Senate as a whole.
Initial scrutiny – extract
2.209 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.
2.210 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.[77] 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.
2.211 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.
Minister's response
2.212 The Minister advised:
Within the limited resources of the Commission, it is not possible to employ experts across the diverse ranges of supports who are appropriately qualified to investigate complex and often technical matters arising in connection with NDIS supports.
The disability support market is diverse and geographically dispersed and includes specialised supports such as aids and equipment. The investigation of a complaint or incident can be extremely complex for particular groups of NDIS providers including those providing supports to participants:
• with complex, specialised or high intensity needs, or very challenging behaviours
• from culturally and linguistically diverse backgrounds
• who are Aboriginal and Torres Strait Islander Australians
• who have an acute and immediate need (crisis care or accommodation).
It is therefore necessary to engage other persons who have specialist skills, training or expertise to assist an investigation including experts currently involved in regulating disability services.
Proposed section 73ZR provides for the appointment of inspectors, investigators and persons assisting under proposed section 181W and provides that the Commissioner may only make such an appointment if he or she is satisfied that:
• the person has suitable training or experience to properly exercise the powers for which the person will be authorised to use; and
• the person is otherwise an appropriate person to be appointed as an inspector, investigator or both (as the case requires).
A person appointed must also comply with any directions of the Commissioner in exercising powers (73ZR(3)).
The Bill triggers the Regulatory Powers Act (Standard Provisions) Act 2014 (Regulatory Powers Act) which creates a consistent Commonwealth framework for investigations, compliance and enforcement powers. Proposed section 73ZE of the Bill provides that new Part 3A is subject to monitoring under Part 2 of the Regulatory Powers Act. Section 23 of the Regulatory Powers Act provides that an authorised person may be assisted by other persons if that assistance is reasonable and necessary. Any use of powers is subject to the direction of an authorised person who will be an inspector.
Proposed section 73ZF of the Bill provides that Part 3A is subject to investigation under Part 3 of the Regulatory Powers Act. Similar to section 23 of the Regulatory Powers Act, section 53 provides that an authorised person may be assisted by other persons if that assistance is necessary and reasonable and any use of powers is subject to the direction of an authorised person (an investigator).
The Bill provides for persons who may assist the Commissioner under proposed section 181W to be employees of agencies (within the meaning of the Public Service Act 1999), officers or employees of a State or Territory, or officers or employees of authorities of the Commonwealth, a State or a Territory. A person who is engaged to assist the Commissioner under section 181W may also assist an authorised officer in the course of an investigation if they have suitable training or experience or they may be appointed as an inspector, investigator or both.
The approach taken in the Bill is comparable to other Commonwealth regulators such as for work health and safety and consistent with the Regulatory Powers Act which applies uniform regulatory powers and arrangements for Commonwealth bodies.
Committee comment
2.213 The committee thanks the Minister for this response. The committee notes the Minister's advice that it is not possible to employ experts across the diverse range of supports that are appropriately qualified to investigate complex and often technical matters. The advice notes that as the investigation of a complaint or incident can be extremely complex it is necessary to engage other persons who have specialist skills, training or expertise to assist an investigation. The committee also notes the Minister's advice that other persons assisting an authorised person must act subject to the direction of an inspector, and that a person appointed under a different power (proposed section 181W) may be used to assist an authorised officer in the course of an investigation.
2.214 The committee notes it has not raised concerns regarding the appointment of inspectors or investigators under proposed section 73ZR. It notes that proposed section 73ZR, which requires that a person only be appointed if they have suitable training or experience and is otherwise an appropriate person, does not relate to the appointment of 'persons assisting' in relation to proposed sections 73ZE and 73ZF. Proposed subsections 73ZE(4) and 73ZF(3) provide that inspectors and investigators may be assisted by 'other persons' in exercising powers or performing functions or duties. No detail is provided as to who these 'other persons' may be. While the Minister's response noted that these other persons may be the same as those appointed under the separate power in proposed section 181W, there is nothing in the bill limiting it to such persons (and nothing in proposed section 181W requires that such persons have appropriate training or experience).
2.215 The committee's consistent scrutiny position in relation to the exercise of coercive or investigatory powers is that persons authorised to use such powers should have received appropriate training. The committee understands the need for flexibility in determining who may be appropriate 'other persons' in the particular circumstances of an investigation, however the committee remains concerned that 'other persons' will be authorised to assist in monitoring and investigation without any requirement for them to have received training in the use of the relevant monitoring or investigatory powers.
2.216 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of allowing 'other persons' to assist authorised officers in exercising potentially coercive or investigatory powers[78] in circumstances where there is no legislative guidance about the appropriate skills and training required of those 'other persons'.
Initial scrutiny – extract
2.217 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.
2.218 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.
Minister's response
2.219 The Minister advised:
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. Under proposed section 73ZN(3), a ban order may apply generally or be of limited application, it may also be permanent or for a specified period. 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.
The committee notes that the exercise of this power could remove fair hearing requirements in these specified circumstances and notes the explanatory memorandum does not give a justification for limiting the right to a fair hearing in this way.
The approach taken in relation to banning orders in the Bill is that it represents the highest level of enforcement action that can be taken in the most serious cases in which a NDIS provider, or person employed (or otherwise engaged) by an NDIS provider poses an unacceptable risk to people with disability in the NDIS. This is in response to a series of recent inquiries and reports which have documented the weaknesses of current safeguarding arrangements and failures to respond to abuse, neglect and exploitation of people with disability.
In the case of a registered provider, prior to the application of a ban order, even in cases where there is an immediate danger to the health, safety or wellbeing of a person with disability, the provider's registration must first be revoked under proposed section 73P which includes the right of a person to make submissions before registration is revoked (paragraph 73P(4)). In practice, if a registered NDIS provider poses an immediate danger to a person with disability, the Commissioner may suspend the registration of the provider pending consideration of whether the provider's registration should be revoked. While the Commissioner is considering whether a provider's registration should be revoked, the Commissioner may also issue a compliance notice preventing the provider from providing any NDIS supports or services.
In the case of an unregistered provider, there is a series of compliance and enforcement action available to the Commissioner prior to issuing a ban order, ranging from compliance notices through to requiring a provider to undergo quality assurance checks. If, in the most serious of cases, the Commissioner has grounds to believe that there is an immediate danger to the health, safety or wellbeing of a person with disability, he or she may issue a ban order under proposed section 73ZN(7) for a specified period to allow for submissions to be made by the provider about the ongoing nature of the ban order. A ban order is also a reviewable decision and a person may apply under proposed section 73ZO(2) for the revocation or variation of a ban order.
The committee also 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. The discretion for the Commissioner to apply a banning order for a limited period is intended to enable the Commissioner to act quickly if the circumstances indicate that it is appropriate to do so pending any further consideration of the matter.
On the basis that a ban order can be applied for a limited period and that a person may apply for revocation or review, the approach taken is considered to be the most appropriate to protect people with disability from unsafe NDIS providers or workers.
Committee comment
2.220 The committee thanks the Minister for this response. The committee notes the Minister's advice that the approach to ban orders is that it represents the highest level of enforcement action that can be taken where an NDIS provider or person employed or engaged by a provider poses an unacceptable risk to people with disability. The Minister advised that in the case of registered providers, prior to the application of a ban order, the provider's registration must first be revoked, at which time submissions can be made, and in relation to unregistered providers the Commissioner has the discretion to apply for a ban order for a specified period to allow for submissions to be made. The Minister also noted that a ban order is subject to review.
2.221 The committee notes that the Commissioner's ability to apply for a ban order for a specified time, rather than a permanent order, is discretionary and non-compellable. While registered providers would have had an opportunity to make submissions in relation to revocation or registration, unregistered providers could (on the face of the bill) be subject to a permanent ban without having been given an opportunity to make submissions on that decision. From a scrutiny perspective, the committee considers it would be more appropriate for the bill to be amended to provide that if a ban order is to be made in circumstances where a person is not given an opportunity to make submissions, such an order can only be made for a limited period and made permanent only after an opportunity for submissions is provided.
2.222 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of limiting fair hearing rights in this manner.
Initial scrutiny – extract
2.223 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)[81] 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.
2.224 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'.
Minister's response
2.225 The Minister advised:
Proposed section 99 of the Bill includes all of the decisions which might have an adverse impact on an individual and which are reviewable internally and externally by the Administrative Appeals Tribunal.
The following table lists decisions that are not a reviewable decision and the circumstances around which they are made. The decisions are not reviewable because they are subject to separate review processes and/or guidelines not administered by the Commissioner.
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Decision
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Proposed section
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Subject to
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A decision to grant (or not to grant) financial assistance to a person or
entity in relation to applications for registration/variations
of
registration.
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73S
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Commonwealth Grants
Guidelines[82]
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A decision to approve (nor not to approve) a quality auditor
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73U
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Based on accreditation through a third party accreditation body
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Monitoring & Investigations warrants, civil penalties and injunctions
– must be issued by a court under the Regulatory Powers
Act
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Appeal to Relevant Court
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A decision to issue an infringement notice (Regulatory Powers Act)
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73ZL
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Appeal to Relevant Court
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Committee comment
2.226 The committee thanks the Minister for this response. The committee notes the Minister's advice listing the decisions that are not reviewable, and the explanation given that these are not reviewable because they are subject to separate review processes and/or guidelines not administered by the Commissioner.
2.227 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.228 In light of the information provided, the committee makes no further comment on this matter.
Initial scrutiny – extract
2.229 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).
2.230 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.
2.231 The explanatory materials provide no information about why these powers are proposed to be delegated to any Commission officer at any level.
2.232 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.
2.233 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.
Minister's response
2.234 The Minister advised:
A broad delegation is necessary to enable the Commission to regulate the national NDIS market in an efficient manner which is responsive to the rapidly emerging and changing NDIS market.
Consistent with the NDIS Quality and Safeguarding Framework released by the Disability Reform Council, the core functions of the Commission outlined in proposed section 181E, will be undertaken by the Commissioner of the NDIS Quality and Safeguards Commission to be appointed under proposed 181L.
The explanatory memorandum (at pages 50 to 60) indicates that the Commissioner's registration and reportable incidents functions will be undertaken by a Registrar; the Commissioner's complaints functions will be undertaken by a Complaints Commissioner; and the Commissioner's behaviour support function will be undertaken by a Senior Practitioner. The draft organisational chart below indicates how those functions are intended to operate.[84]
The organisational chart was provided to stakeholders during the development of the Bill and is intended to illustrate the scope of powers to be delegated and the categories of people to whom specific powers will be delegated.
Committee comment
2.235 The committee thanks the Minister for this response. The committee notes the Minister's advice that a broad delegation is necessary to enable the Commission to regulate the NDIS market in an efficient and responsive manner. The committee also notes the Minister's advice that it is intended that certain powers will be granted to specified officers.
2.236 The committee reiterates its preference that delegations of administrative power be confined to the holders of nominated offices or members of the Senior Executive Service or, alternatively, a limit is set on the scope and type of powers that might be delegated. While the committee notes the Minister's advice as to how it is intended this power will be exercised, there is nothing on the face of the bill to limit it in the way set out in the response.
2.237 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of these documents as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.238 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of the broad delegation of administrative power.
[62] See correspondence relating to Scrutiny Digest No. 8 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest
[63] 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.
[64] Explanatory memorandum, p. 12.
[65] Explanatory memorandum. Page 12.
[66] Note, the Minister's covering letter states: 'These draft rules are subject to ongoing consultation with states, territories, peak bodies representing people with disability and providers. As such, I would request they not be published'. As such, the committee has not published the draft rules.
[67] 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.
[68] See Schedule 1, items 48, proposed section 73H, 73N(1)(f), 73P(1)(f), 73T, 73V, 73X and 73Z.
[69] See section 4AA of the Crimes Act 1914.
[70] Explanatory memorandum, p. 29.
[71] Note, the Minister's covering letter states: 'These draft rules are subject to ongoing consultation with states, territories, peak bodies representing people with disability and providers. As such, I would request they not be published'. As such, the committee has not published the draft rules.
[72] Not attached and subsequent advice stated these draft rules were not available.
[73] Not attached and subsequent advice stated these draft rules were not available.
[74] Which for an individual could be up to $45,000 and for a body corporate could be up to $225,000, see section 4AA of the Crimes Act 1914.
[75] See section 209 of the National Disability Insurance Scheme Act 2013.
[76] 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.
[77] See Part 2 of the Regulatory Powers (Standard Provisions) Act 2014.
[78] See Parts 2 and 3 of the Regulatory Powers (Standard Provisions) Act 2014.
[79] 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.
[80] 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.
[81] See Schedule 1, items 51 to 56.
[83] 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.
[84] Note, the organisational chart is published together with the ministerial correspondence, available on the committee's website. See correspondence relating to Scrutiny Digest No. 8 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest
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