National Disability Insurance Scheme Amendment (Improving Supports for at Risk Participants) Bill 2021 [2021] AUSStaCSBSD 113 (16 June 2021)

• National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021
• Broad discretionary power
• Significant penalties85
• Significant matters in delegated legislation
• Privacy92

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National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021

Purpose	This bill seeks to amend the National Disability Insurance Scheme Act 2013 in order to strengthen supports and protections for NDIS participants who may be at risk of harm, and to clarify the NDIS Commissioner's powers
Portfolio	National Disability Insurance Scheme
Introduced	House of Representative on 3 June 2021

Broad discretionary power
Significant penalties^[85]

Banning orders

1.114 Under existing section 73ZN of the National Disability Insurance Scheme Act 2013 (the NDIS Act), the NDIS Quality and Safety Commissioner (the Commissioner) may make a banning order prohibiting or restricting a person from being involved in the provision of specified supports or specified services to people with a disability. A banning order may be made against:

• an NDIS provider (subsection 73ZN(1));

• a person who is or was employed or otherwise engaged by an NDIS provider (subsection 73ZN(2)); or

• a person who is not suitable to be involved in the provision of support who has not previously been an NDIS provider or previously employed or engaged by an NDIS provider (subsection 73ZN(2A)).

1.115 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.^[86] Schedule 1 to the bill seeks to make a number of amendments regarding the making of banning orders.

1.116 Item 32 seeks to amend subsection 73ZN(3) of the NDIS Act to provide that the Commissioner may make a banning order subject to 'specified conditions'. There is no guidance on the face of the bill as to what types of conditions could be imposed, how long any condition will be imposed for or the criteria the Commissioner will use when determining the imposition of a condition is appropriate.

1.117 The committee considers that this provision provides the Commissioner with a broad discretionary power to impose conditions on banning orders in circumstances where there is no guidance on the face of the bill as to how or when the power should be exercised. The committee expects that the inclusion of broad discretionary powers should be justified in the explanatory materials. In this instance, the explanatory memorandum states:

Without limiting the kinds of conditions that may be imposed, this may include conditions that the subject of the banning order must provide a copy of the banning order to prospective employers where the banning order restricts them from engaging in some but not all activities related to disability service provisions. This assists the employer to ensure the worker is not involved in those activities.
[...] The decision to subject a provider or worker to a banning order is the most serious regulatory action the Commission can enforce.^[87]

1.118 While noting this explanation, it is unclear why at least high-level guidance cannot be provided on the face of the primary legislation as to the types of conditions that can be imposed. The committee notes that items 26, 29 and 30 of the bill amend the banning order provisions to provide that when considering whether a person is not suitable to provide supports or services, the Commissioner must have regard to any matters prescribed by the NDIS rules. It is unclear to the committee why, at a minimum, a similar requirement cannot be provided in relation to the imposition of specified conditions.

1.119 Additionally, item 28 seeks to amend subsection 73ZN(2) to provide that such a banning order may also apply to a person who is or was a member of the key personnel of an NDIS provider. The explanatory memorandum notes that this would include current or former board members and chief executive officers of NDIS providers.^[88] Item 33 seeks to provide that if a banning order is made against a person who is a member of the key personnel, the continuity of the order is not affected by the person ceasing to be a member. This further heightens the committee's concerns outlined above as this would expand the categories of persons who may be subject to a banning order.

Civil penalties

1.120 Item 35 seeks to amend paragraph 73ZN(10)(b) of the NDIS Act to provide that by contravening a condition of a banning order, a person may attract a civil penalty of up to 1,000 penalty units (or $222,000).^[89] Further, item 36 seeks to insert subsection 73ZO(2A) into the NDIS Act to provide that a banning order may be varied to impose new conditions on the order, or to vary or remove existing conditions.

1.121 The explanatory memorandum states that 'the maximum penalty for a breach of a condition is the same as the breach of the banning order'.^[90] The explanatory memorandum also states that proposed subsection 73ZO(2A) 'allows the Commissioner to adjust and apply necessary regulatory action where circumstances change or new information supports the need for an adjustment to provide effective safeguards to participants'.^[91]

1.122 Noting the broad discretionary nature of the Commissioner's power to impose conditions on a banning order and the lack of guidance on the face of the bill as to the types of conditions that can be imposed, the committee has scrutiny concerns regarding the imposition of a significant civil penalty for persons who breach conditions of banning orders. For example, in cases where a person is required to comply with banning order conditions but has since left the disability sector, it is unclear to the committee whether these conditions—which may include compulsory training—would remain enforceable, with failure to comply resulting in a civil penalty of up to $222,000. The committee does not consider the explanatory memorandum has adequately explained why it is appropriate to provide a civil penalty of up to 1,000 penalty units for the breach of a condition of a banning order.

1.123 The committee therefore requests the minister's advice as to:

• why it is considered necessary and appropriate to provide the Commissioner with a broad discretion to impose specified conditions on a banning order;

• whether the bill can be amended to provide, at a minimum, that the Commissioner must consider any matters set out in the NDIS rules when imposing a specified condition on a banning order; and

• why it is considered necessary and appropriate to apply a significant civil penalty to breaches of specified conditions on banning orders.

Significant matters in delegated legislation
Privacy^[92]

1.124 Current section 67A of the NDIS Act provides that a person may use or disclose protected Commission information in certain circumstances. Item 10 of Schedule 1 seeks to insert proposed paragraph 67A(1)(db) to provide that a disclosure is permitted if the disclosure of information is to a person or body prescribed by the NDIS rules for the purpose prescribed by the rules.

1.125 The committee's consistent scrutiny view is that significant matters, such as when protected information may be disclosed, should be included in primary legislation unless a sound justification is provided for the use of delegated legislation. In this instance, the explanatory memorandum states:

This will enable the NDIS rules to specify entities with a role in relation to persons with disability and facilitate information disclosure to those entities, including: early identification of people with disability who are at risk of harm or neglect; and to support a reasonable, necessary and proportionate safeguarding response by those entities.^[93]

1.126 While noting this explanation, the committee has scrutiny concerns regarding allowing the NDIS rules to expand the permitted disclosures of information to any person or body prescribed by the rules for any purpose prescribed by the rules. The committee considers that it would be possible to include at least high-level guidance regarding the types of entities or purposes that could be prescribed in the rules. The committee's scrutiny concerns in this instance are heightened as this could allow for broad permitted disclosures of personal information.

1.127 The committee therefore requests the minister's more detailed advice regarding:

• why it is considered necessary and appropriate to allow delegated legislation to expand the permitted disclosures of information to any person or body prescribed by the rules for any purpose prescribed by the rules; and

• whether the bill could be amended to include at least high-level guidance as to the types of entities information can be disclosed to and the purposes for which it can be disclosed.

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[85] Item 28, proposed subsection 73ZN(2); item 32, proposed paragraph 73ZN(3)(c); item 35, proposed paragraph 73ZN(10)(b); item 36, proposed subsection 73ZO(2). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i) and (ii).

[86] National Disability Insurance Scheme Act 2013, subsection 73ZN(3).

[87] Explanatory memorandum, pp. 11–12.

[88] Explanatory memorandum, pp. 9–10.

[89] National Disability Insurance Scheme Act 2013, subsection 73ZN(10).

[90] Explanatory memorandum, p. 12.

[91] Explanatory memorandum, p. 12.

[92] Schedule 1, item 10, proposed paragraph 67A(1)(db). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i) and (iv).

[93] Explanatory memorandum, p. 7.