National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020 [2020] AUSStaCSBSD 109 (17 June 2020)

• National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020
• Broad discretionary powers 8
• Significant matters in delegated legislation
• Privacy9

---

National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020

Purpose	This bill seeks to broaden the circumstances in which the NDIS Quality and Safeguards Commissioner may make a banning order against a provider or person, and clarifies the Commissioner’s powers
Portfolio	National Disability Insurance Scheme
Introduced	House of Representatives on 12 June 2020

Broad discretionary powers ^[8]

1.18 Item 3 of Schedule 1 to the bill seeks to amend the National Disability Insurance Scheme Act 2013 to insert proposed subsection 73ZN(2A) to provide that the NDIS Quality and Safety Commissioner (the Commissioner) may make an order prohibiting or restricting a person from being involved in the provision of specified supports or specified services to people with disability if the Commissioner reasonably believes that the person is not suitable to be so involved. The banning order applies to persons who have not previously been an NDIS provider or employed or otherwise engaged by an NDIS provider.

1.19 The committee notes that this provision provides the Commissioner with a broad discretionary power to ban persons from providing disability services in circumstances where there is limited guidance on the face of the bill as to how or when the power should be exercised. The committee notes that there is no definition of when a person will not be suitable nor are there any criteria regarding suitability on the face of the bill.

1.20 The committee expects that the inclusion of broad discretionary powers should be justified in the explanatory memorandum. In this instance, the explanatory memorandum contains no justification for the inclusion of this broad discretionary power.

1.21 The committee therefore requests the minister’s advice as to:

• why it is necessary and appropriate to provide the Commissioner with a broad power to ban persons from providing disability services; and

• whether the bill can be amended to include additional guidance on the exercise of the power on the face of the primary legislation.

Significant matters in delegated legislation
Privacy^[9]

1.22 Proposed subsection 73ZS(5A) provides that the NDIS Provider Register (the Register) may include the name of a person, their ABN and any details of the banning order in relation to a person against whom a banning order is made under subsection 73ZN(2) or (2A). The rules (delegated legislation) may prescribe any other matter that may be included on the Register.

1.23 The committee's view is that significant matters, such as the matters that can be included on a public register, should be in the primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum states:

It is not anticipated at this stage that the matters which may be included in the Register prescribed by the Rules will extend to any highly sensitive or highly personal information about the person subject to the banning order. However, in some instances, such as where an individual or business has a common name, it may be necessary to include further information, to publish an amount of information that is sufficient to ensure people with disability and their carers can identify the person. This would not extend, for example, to the nature of the incident that prompted the making of the banning order. It may include, for example, a broad description of the town or area in which the banned person was providing services.^[10]

1.24 While noting the explanation in the explanatory memorandum, the committee notes that there is nothing on the face of the bill which would prevent the inclusion of highly sensitive or highly personal information about persons on the Register. As a result, the committee notes that the potential disclosure of information regarding persons subject to banning orders will not be subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill.

1.25 The committee therefore requests the minister’s advice as to:

• why it is necessary and appropriate to leave significant matters, such as what personal information can be included on the Register, to delegated legislation, noting the potential impact on a person’s privacy; and

• whether the bill can be amended to set out the information that can be included on the Register on the face of the primary legislation.

---

[8] Schedule 1, item 3, proposed subsection 73ZN(2A). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(ii).

[9] Schedule 1, item 5, proposed subsection 73ZS(5A). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

[10] Explanatory memorandum, p. 2.