National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 131 (26 August 2020)

• National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill 2020
• Broad discretionary powers 4

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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
Bill status	Before the House of Representatives

Broad discretionary powers ^[4]

2.8 The committee initially scrutinised this bill in Scrutiny Digest 8 of 2020 and requested the minister's advice.^[5] The committee considered the minister's response in Scrutiny Digest 9 of 2020 and requested the minister's further advice as to whether the bill can be amended to:

• include a note in section 73ZN to alert readers of the legislation (including delegates of the Commissioner) to the fact that the requirements under paragraph 181D(4)(b) of the Act apply in relation to the exercise of the Commissioner's banning powers; and

• explicitly require that the Commissioner considers the criteria for assessing the suitability of a person to be registered as a registered NDIS provider prescribed by the National Disability Insurance Scheme rules in the exercise of the Commissioner's banning powers.

2.9 The committee also requested that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable.^[6]

Minister's response^[7]

2.10 The minister advised:

As noted by the Committee, amending the Bill to provide additional guidance on the exercise of the banning order power risks unintentionally narrowing the circumstances in which the Commissioner of the NDIS Quality and Safeguards Commission (the NDIS Commissioner) may make a banning order. This could lead to further unintended gaps in the application of banning orders and risks challenges to the NDIS Commissioner's decisions.
In response to the Committee's recommendations, I propose to table an addendum to the explanatory memorandum for the Bill explaining how provisions of the National Disability Insurance Scheme Act 2013 (the Act) guide the exercise of powers by the NDIS Commissioner under section 73ZN.
The Bill would expand the categories of persons against whom a banning order could be made under the Act but the Bill does not otherwise propose to amend the Act to alter how banning order decisions are made. In these circumstances, I do not propose to amend the Bill to include additional amendments that would require the NDIS Commissioner to take account of particular matters when exercising powers under section 73ZN.

Committee comment

2.11 The committee thanks the minister for this response. The committee notes the minister's advice that the bill would expand the categories of persons against whom a banning order could be made under the Act but the bill does not otherwise propose to amend the Act to alter how banning order decisions are made and that, as a result, there is no intention to amend the bill to include additional amendments that would require the NDIS Commissioner to take account of particular matters when exercising powers under section 73ZN.

2.12 The committee welcomes the minister's advice that an addendum to the explanatory memorandum for the bill will be tabled explaining how provisions of the National Disability Insurance Scheme Act 2013 guide the exercise of powers by the NDIS Commissioner under section 73ZN. The committee requests that the addendum be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials 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).

2.13 In light of the information provided and the minister's undertaking to table an addendum to the explanatory memorandum, the committee makes no further comment on this matter.

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[4] 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).

[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2020, p. 7.

[6] Senate Scrutiny of Bills Committee, Scrutiny Digest 9 of 2020, pp. 39-42.

[7] The minister responded to the committee's comments in a letter dated 24 August 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest