National Disability Insurance Scheme Amendment (Improving Supports for at Risk Participants) Bill 2021 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 155 (13 July 2021)

• National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021
• Broad discretionary power
• Significant penalties28
• Significant matters in delegated legislation
• Privacy31

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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
Bill status	Before the House of Representatives

Broad discretionary power
Significant penalties^[28]

2.53 In Scrutiny Digest 8 of 2021 the committee requested 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.^[29]

Minister's response^[30]

2.54 The minister advised:

Why it is considered necessary and appropriate to provide the Commissioner with a broad discretion to impose specified conditions on a banning order?
The purpose of making a banning order is to remove a provider or worker entirely from the NDIS market or to restrict their involvement in that market. Orders are made because the continued involvement of that provider or person would pose a risk to NDIS participants that cannot be averted in any other way. Making a banning order is one of the most serious compliance actions the Commissioner can take in response to conduct by a provider or worker. A banning order is only contemplated after other possible compliance responses such as education, warning letters or infringement notices are considered but found to be inappropriate in the circumstances.
The current banning order provisions empower the Commissioner to prevent or restrict a provider or person who is, was or may be employed or engaged by a provider (worker) from engaging in specified activities either permanently or for a specified period.
The current provisions are a 'blunt instrument' and do not allow the Commissioner to refine the banning order to address specific concerns in particular cases. The ability to impose conditions allows a more fine-tuned regulatory response to enhance participant safeguarding. A broad discretion to impose conditions on a banning order enables the Commissioner to be flexible and tailor banning orders to the specific circumstances of each case. It supports the Commissioner, when exercising his or her functions, to use best endeavours to conduct compliance and enforcement activities in a risk responsive and proportionate manner as required by paragraph 181D(4)(b) of the NDIS Act.
In some cases, it would be beneficial if the Commissioner could require the subject of the banning order to undertake action to remedy identified deficits in the way they have provided supports or services to people with a disability. This could be skill development or training in a particular area, such as medication management.
The Commissioner routinely reviews banning orders which are near the end of their term and can decide to extend them for a further period. Where a banning order is for a specified time, the Commissioner can consider the person's compliance with a condition (e.g. if a person was banned until such time that they had successfully completed particular training) in deciding whether to vary the banning order to extend it. Compliance with the condition could demonstrate to the Commissioner that the banning order subject has addressed the concerns which led to the order being made.
The imposition of conditions can also provide greater safeguards where a banning order restricts a person only from providing particular types of services. For example from providing direct disability support services but not from providing indirect disability support services, such as working in an administrative or clerical role which involves no direct contact with people with disability. The condition might be that the worker provides a copy of the banning order with this restriction to each prospective employer. This ensures the employer knows not to employ the person in a direct service role. Without the power to impose this condition on the banned worker, the Commission relies on the honesty of the worker to inform the new employer of the restrictions in the banning order and to comply with it themselves, although the worker screening system provides some protections in this regard.
In this context, it is important to note that the Commissioner's practice is to notify worker screening units of banning orders which may then affect the worker's NDIS worker screening check. Registered providers must only engage or employ workers who have an NDIS clearance in a risk assessed role. However an unregistered provider is not subject to this requirement and may choose to employ workers without an NDIS worker screening check. It may therefore be appropriate in some cases to impose a condition that the banned worker gives a copy of the banning order to any employer who is an NDIS provider to ensure the employer has knowledge of any restriction on their work duties.
Can the bill 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?
The Commissioner must always be guided by paragraph 181D(4)(b) of the NDIS Act in deciding what conditions should be imposed. Paragraph 181D(4)(b) provides that the Commissioner must use best endeavours to conduct compliance and enforcement activities in a risk responsive and proportionate manner. In practice this means when determining conditions on a banning order, the Commissioner may consider matters such as the risk to participants, the nature of the conduct which led to banning order being made, previous work, conduct history of the banned person, expressions or actions of remorse/ commitment to rehabilitation/ co-operation of the banned person, support for the banned person from NDIS participants or their families based on past experience of service provision by that person. Further specification in NDIS Rules is considered unnecessary as it would not add to the current approach taken by the Commissioner, in line with requirements in the Act, when issuing banning orders.

Why it is considered necessary and appropriate to apply a significant civil penalty to breaches of specified conditions on banning orders?
A banning order is the most serious compliance action the Commission can take in response to conduct by a worker or provider, and is only contemplated after other possible compliance responses such as education, warning letters or infringement notices have been considered. Additionally, as outlined in the responses above, there is a wide variety of conditions that could be imposed on banning orders.
The intention is that any civil penalty applied for the breach of condition would be commensurate with the overall impact of the breach in question, with due regard to circumstances around the breach. Where a breach involves a low level risk to NDIS participants, particularly if there are extenuating circumstances, it is expected that the amount of the civil penalty imposed would be low. For more serious breaches with more significant ramifications or unacceptable risk of harm to NDIS participants, a higher civil penalty, particularly if the breach of the condition was materially akin to breaching the banning order, would be appropriate.
The application of a civil penalty is necessary as a further deterrent for a provider or worker who has a banning order in place to meet any conditions and to re-enforce that there is no tolerance for behaviour or actions that pose an unacceptable risk of harm to NDIS participants. Protecting and safeguarding NDIS participants from the risk of harm is the highest priority.

Committee comment

2.55 The committee thanks the minister for this response. The committee notes the minister's advice that the ability to impose conditions allows a more fine-tuned regulatory response to enhance participant safeguarding and that a broad discretion to impose conditions on a banning order enables the Commissioner to be flexible and tailor banning orders to the specific circumstances of each case.

2.56 While noting this advice, the committee reiterates that 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 whether the imposition of a condition is appropriate. The committee has generally not accepted a desire for administrative flexibility to be a sufficient justification for the inclusion of broad discretionary powers in circumstances where there is no guidance on the face of the primary legislation as to how those powers should be exercised.

2.57 The committee notes the minister's advice that further specification in the NDIS Rules is considered unnecessary as it would not add to the current approach taken by the Commissioner, in line with requirements in the National Disability Insurance Scheme Act 2013 (the Act), when issuing banning orders. While noting this advice, 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. As such, it remains unclear to the committee why, at a minimum, a similar requirement cannot be provided in relation to the imposition of specified conditions.

2.58 The committee also notes the minister's advice that the intention is that any civil penalty applied for the breach of condition would be commensurate with the overall impact of the breach in question, with due regard to circumstances around the breach. The committee also notes the minister's advice that where a breach involves a low-level risk to NDIS participants, particularly if there are extenuating circumstances, it is expected that the amount of the civil penalty imposed would be low.

2.59 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. As such, from a scrutiny perspective, the committee does not consider that the minister's response adequately justifies 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.

2.60 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister 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).

2.61 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of providing the Commissioner with a broad discretion to impose specified conditions on a banning order, contravention of which is subject to significant civil penalties.

Significant matters in delegated legislation
Privacy^[31]

2.62 In Scrutiny Digest 8 of 2021 the committee requested the minister's advice as 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.^[32]

Minister's response

2.63 The minister advised:

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?
Currently if the Commission wishes to disclose personal information to a State/Territory body/authority and that disclosure is not for the purposes of the NDIS Act (or other grounds in section 67 A) then the disclosure must be made under section 67E. This requires compliance with the Information Disclosure Rules including consideration of de-identification and consultation which delays the release of information to protect NDIS participants.
While the Commission appreciates the importance of these privacy protections, it is also important to be able to disclose information quickly to key public sector bodies to safeguard participants. This was a specific concern identified in the Robertson Review. Disclosures need to be made to law enforcement bodies, child protection authorities, disability commissioners or worker screening bodies so they can have relevant information to respond swiftly and exercise their own functions and powers.
The Commissioner's core functions include an information sharing function (to engage in, promote and coordinate the sharing of information to achieve the objects of the NDIS Act paragraph 181E(h)). The proposed amendment under the Bill allows the making of Rules to support this function and is therefore appropriate.
The amendment will allow flexibility in specifying bodies to which information can be disclosed under section 67A. The NDIS (Protection and Disclosure of Information-Commissioner) Rules 2018 are Category D Rules which require mandatory consultation with States and Territories before they are made or amended. There will therefore be consultation about the proposed prescribed bodies and purposes before the Rules are amended, with the amended Rules subject to a disallowance period before the Parliament in which further parliamentary scrutiny can occur.
As the Commission's regulatory role evolves, it is likely that the Commissioner will identify the specific bodies and purposes which are appropriate to be prescribed under this section. It is more appropriate to prescribe these bodies and purposes through the Rules rather than through amendments to the Act to allow the deletion or addition of prescribed bodies that become defunct, change their name or assume a different role in a timely way. This approach balances the need to ensure appropriate information to protect and safeguard NDIS participants is able to be shared to the right bodies at the right time, with the need for appropriate consultation and parliamentary scrutiny.
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
It would be a matter for the Rules to prescribe the bodies and purposes following consultation with states and territories and other key stakeholders. Providing more high level guidance in the Act could create limitations on the entity type/disclosure purposes and prove counterproductive. For example, if the legislation was to limit the reason for disclosure to protecting people with disability from receiving poor quality services; the Commissioner may ·not be able to disclose compelling information it had uncovered relating to a parent's treatment of an NDIS participant to child protection authorities because it is not related to the receipt of services. Therefore it is better to leave such guidance to the Rules to enable the Commissioner to make adjustment to ensure relevant bodies have the information they need to protect NDIS participants. As noted above, the Rules are subject to consultation requirements and a disallowance period before the Parliament.
I trust this information clarifies the matters raised and will assist with your deliberations on the Bill.
I will consider making adjustments to the Explanatory Memorandum accompanying the Bill to address any clarification required, once you have finalised your deliberations.

Committee comment

2.64 The committee thanks the minister for this response. The committee notes the minister's advice that the amendment will allow flexibility in specifying bodies to which information can be disclosed under section 67A. The committee also notes the minister's advice that the rules require mandatory consultation with states and territories before they are made or amended.

2.65 The committee further notes the minister's advice that as the Commission's regulatory role evolves, it is likely that the Commissioner will identify the specific bodies and purposes which are appropriate to be prescribed under this section and that providing more high level guidance in the Act could create limitations on the entity type or disclosure purposes and therefore prove counterproductive.

2.66 While noting this advice, the committee continues to have 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. It remains unclear to the committee why it would not 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 the bill as currently drafted could allow for broad permitted disclosures of personal information.

2.67 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister 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).

2.68 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing 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.

2.69 The committee also draws this matter to the attention of the Senate Standing Committee for the Scrutiny of Delegated Legislation.

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[28] 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).

[29] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2021, pp. 34–36.

[30] The minister responded to the committee's comments in a letter dated 1 July 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.

[31] 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).

[32] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2021, p. 37.