Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND
SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services, the Honourable Christian Porter MP)
Contents
OUTLINE.....................................................................................................................ii
FINANCIAL IMPACT STATEMENT .......................................................................... vii
NOTES ON ITEMS..................................................................................................... 1
SCHEDULE 1 - NDIS QUALITY AND SAFEGUARDS COMMISSION ..................... 2
Overview .................................................................................................................... 2
Commencement ......................................................................................................... 2
Part 1 Amendments.................................................................................................... 2
National Disability Insurance Scheme Act 2013 ......................................................... 2
Division 1 - Information held by the Agency .............................................................. 8
Division 2 - Information held by the Commission ....................................................... 9
Division 3 - Information generally .......................................................................... 133
Part 3A - NDIS providers ......................................................................................... 13
Division 1 - Application of Part ............................................................................... 144
Division 2 - Registered NDIS providers ................................................................... 15
Division 3 - Quality assurance ............................................................................... 277
Division 4 - NDIS Code of Conduct ....................................................................... 288
Division 5 - Complaints management and resolution ............................................ 299
Division 6 - Incident management - registered NDIS providers .............................. 30
Division 7 - Protection of disclosers ......................................................................... 33
Division 8 - Compliance and enforcement ............................................................... 35
Division 9 - NDIS Provider Register......................................................................... 47
Chapter 6A - NDIS Quality and Safeguards Commission........................................ 50
Part 1- Commission establishment and functions .................................................... 50
Part 2 - NDIS Quality and Safeguards Commissioner ............................................. 50
Part 3 - Staff etc. of the Commission ....................................................................... 61
Part 2 - Transitional rules ........................................................................................ 66
SCHEDULE 2 - NATIONAL DISABILITY INSURANCE SCHEME REVIEW ........... 68
Part 1 - Amendments............................................................................................... 71
Part 2 - Application provisions ................................................................................. 81
REGULATION IMPACT STATEMENT ....................................................................... 1
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS ..................................... 1
i
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND
SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
OUTLINE
The National Disability Insurance Scheme Amendment (Quality and Safeguards
Commission and Other Measures) Bill 2017 (the Bill) establishes an independent
national Commission, to protect and prevent people with disability from experiencing
harm arising from poor quality or unsafe supports or services under the National
Disability Insurance Scheme (NDIS).
In response to an independent review of the National Disability Insurance Scheme
Act 2013 (the Act) conducted in 2015 under section 208 of the Act, the Bill also
makes administrative amendments to ensure the efficient and effective operation of
the Act.
In February 2017, the Disability Reform Council released the NDIS Quality and
Safeguarding Framework (the Framework) which addresses many of the issues
raised in the Senate Inquiry into violence, abuse and neglect against people with a
disability in institutional and residential settings (the Senate Inquiry). The Framework
was developed in consultation with people with disability, carers, providers and peak
bodies over a three-year period.
The Framework includes measures targeted at individuals, the workforce and
providers to strengthen their capacity (in the developmental domain), to prevent
harm and ensure quality services (in the preventative domain), and to resolve
problems, enable improvements and provide oversight (in the corrective domain). It
outlines the ongoing commitment of all jurisdictions to quality and safeguards for
people with disability.
The Bill is an important step towards implementing the Framework and giving effect
to the Commonwealth Government's regulatory responsibilities under the
Framework.
A series of recent inquiries and reports have documented the weaknesses of the
current safeguarding arrangements for disability services, many of which result from
a disconnection between quality assurance and oversight regulatory functions.
These inquiries include the Senate Inquiry, Victorian government inquiries, and the
Royal Commission into Institutional Responses into Child Sexual Abuse. The
inquiries found failures to uncover, report and respond to abuse, and inadequate
national screening of workers. They called for nationally consistent provider
accreditation and the use of behaviour support strategies that do not involve
restrictive practices to reduce challenging behaviours.
The Bill addresses many of the issues raised in these inquiries for the NDIS. For
people with disability, their families and carers, the Bill contains national obligations
and standards which apply to all NDIS providers and workers, including through an
NDIS Code of Conduct and arrangements for reporting and complaints with
appropriate protections and sanctions.
ii
The NDIS represents a dramatic shift from services delivered under largely block-
funded contractual relationships between providers and primarily State and Territory
governments, to one where people with disability are the purchasers and consumers
of services from a diverse market under the NDIS. The Commission will be a fit-for-
purpose, evidence-based, risk-responsive regulator of the new and emerging NDIS
provider market.
The new arrangements replace a complex and fragmented system of quality and
safeguards in each State and Territory, delivering a nationally consistent approach.
For providers, the new national approach will enable a single registration and
regulatory system regardless of how many jurisdictions the provider operates in,
reducing duplication and providing national consistency.
The Bill will further the objects and principles of the Act and uphold the rights of
people with disability, as part of Australia's commitment to the United Nations
Convention on the Rights of Persons with Disabilities (UNCRPD) to prevent
exploitation, violence and abuse of people with disability. Specifically, the Bill
achieves this through:
advancing the protection of the rights of people with disability in Australia,
consistent with Australia's commitment to the UNCRPD;
balancing the need to provide appropriate protections, with the need to enable
people with disability to take reasonable risks so they can reach their goals;
focussing on building the capacity of people with disability, their families and
carers to make informed decisions about NDIS providers and pursue
complaints;
supporting a strong and viable market for disability supports and services that
offers people with disability genuine choice and control; and
adapting to the emerging market-based system in which; people with disability
are building their capability to be informed consumers; the workforce is
growing rapidly and new providers are regularly entering the market with
innovative supports and services to enable people with disability to live 'an
ordinary life'.
The NDIS represents a significant reform to the way in which supports and services
are delivered to people with disability. In the new market-based system, participants
choose their providers and services, rather than providers being contracted for bulk
services at an aggregate level by government agencies. This means service
provider compliance requirements, currently managed through funding agreements
and government contracts, will no longer exist. This poses a significant risk in terms
of provider quality and participant safety, particularly in an immature and rapidly
expanding market. A more deregulated market-based environment will also result in
the entry of a large number of new providers who may have limited or no experience
in the sector, potentially using new and unproven business models, or who may have
uncertain financial viability.
iii
A robust national system for regulation is required to mitigate these risks and
achieve a balance between the realisation of the NDIS vision to support people with
disability to make informed choices, while also promoting high quality supports and
services with appropriate safeguards in the new market environment. As the
Commission will be established within the Act, the existing objects and principles
concerning the rights of people with disability will underpin and inform the regulatory
activities of the Commission.
At full scheme NDIS, the Commission will be responsible for overseeing quality
supports and services for people with disability who are receiving NDIS supports and
services such as Information, Linkages and Capacity (ILC) Building to connect
people with disability, their families and carers, with community and mainstream
supports and create greater inclusivity and accessibility. The primary focus of the
Commission will be regulating NDIS providers to ensure that NDIS participants
receive the standard of service they deserve. There are, however, a range of other
providers who are providing similar services to people with disability. The Bill will
cover ILC Building funded under the NDIS and the NDIS rules may prescribe
providers of other programs for people with disability to be covered by the
Commission's quality and safeguards arrangements.
Disability services delivered through other systems, such as health, education and
justice, will continue be covered by the quality and safeguarding arrangements for
those systems. Universal complaints and redress mechanisms, including police, fair
trading bodies, professional and industry bodies, consumer protection laws and other
regulatory and complaints systems will continue to be available to both NDIS
participants and people with disability outside the NDIS.
The proposed changes will mean that people with disability, their families and carers
are better off because they will have a single body to raise concerns about the
quality of supports or services being delivered and access to nationally consistent
and transparent information about NDIS providers.
Schedule 1 - NDIS Quality and Safeguards Commission
Schedule 1 amends the Act to establish the NDIS Quality and Safeguards
Commission, as an independent statutory body with the following integrated
regulatory functions:
registration and regulation of NDIS providers, including Practice Standards
and a Code of Conduct;
compliance monitoring, investigation and enforcement action;
responding to complaints and reportable incidents including abuse, and
neglect of a person with disability;
national policy setting for the screening of workers;
iv
national oversight and policy setting in relation to behaviour support and
monitoring the use of restrictive practices, within the NDIS with the aim of
reducing and eliminating such practices; and
facilitating information sharing arrangements between the Commission, the
National Disability Insurance Agency (the Agency), State and Territory and
other Commonwealth regulatory bodies.
Schedule 2 - National Disability Insurance Scheme Act 2013 Review
Schedule 2 makes a number of amendments to the Act to improve the operation of
the Act following an independent review conducted for the purposes of section 208
of the Act. The amendments align with the Council of Australian Governments
(COAG) response to the independent review in December 2016.
Background
With the agreement of the Disability Reform Council in July 2015, the Minister for
Social Services commissioned Ernst & Young to conduct an independent review of
the Act. It is a requirement under section 208 of the Act that such a review be
undertaken two years after the commencement of the NDIS.
The purpose of the review was to assess the operation of the Act, as well as to
consider whether or not any amendments can be made to further the objects and
principles of the Act.
The independent review of the Act found that there were opportunities to provide
greater clarity to the legislative framework for the NDIS and provided
recommendations to COAG for consideration. Recommendations endorsed by
COAG included strengthening the objects and principles of the Act, providing a more
appropriate description of the purposes of funding for the ILC Building framework
developed by the Agency and addressing other technical inadequacies of the
legislation.
v
FINANCIAL IMPACT STATEMENT
MEASURE FINANCIAL IMPACT OVER THE FORWARD
ESTIMATES
NDIS - Quality and Safeguards $209 million
Commission - Establishment
NDIS Act Review NIL
Establishment of the Commission has a cost of $209 million over the forward
estimates.
The amendments in Schedule 2 to this Bill will not have a financial impact, as they
do not represent a change to the administration of the NDIS.
REGULATION IMPACT STATEMENT
The regulation impact statement for NDIS Quality and Safeguarding Framework
appears at the end of this Explanatory Memorandum.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
Explanatory Memorandum.
vi
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND
SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
NOTES ON ITEMS
In these notes on items, the following abbreviations are used:
NDIS National Disability Insurance Scheme
the Act the National Disability Insurance Scheme Act 2013
the Bill the National Disability Insurance Scheme
Amendment (Quality and Safeguards Commission
and Other Measures) Bill 2017
the Framework NDIS Quality and Safeguarding Framework
9 December 2016
the Commission NDIS Quality and Safeguards Commission
the Commissioner NDIS Quality and Safeguards Commissioner
the Agency National Disability Insurance Scheme Agency
NDIS rules Rules made under the Act
Clause 1 - Short title
1. This is a formal provision specifying the short title.
Clause 2 - Commencement
2. The table in this clause sets out when the provisions of the Bill commence.
Clause 3 - Schedules
3. Clause 3 of the Bill provides that an Act that is specified in a Schedule is
amended as set out in that Schedule, and any other item in a Schedule, operates
according to its terms.
4. The Bill comprises two Schedules which amend the Act.
1
SCHEDULE 1 - NDIS QUALITY AND SAFEGUARDS COMMISSION
Overview
5. This Bill establishes the NDIS Quality and Safeguards Commission and the
office of the NDIS Quality and Safeguards Commissioner in new Chapter 6A of the
Act.
6. The amendments introduce the integrated functions of the Commissioner:
relating to the NDIS market, particularly in relation to quality and safety;
registration and oversight of NDIS providers;
a system to support the management and resolution of complaints about
NDIS providers; and
national policy leadership in relation to the screening of workers and the use
of behaviour supports to reduce and eliminate restrictive practices.
Commencement
7. The amendments in Schedule 1 to the Bill commence on 1 July 2018 to align
with the commencement of full scheme in some jurisdictions. This will also allow
time to establish the Commission's information, communication and technology
systems to support its operations. The appointment of the Commissioner,
engagement of Commission staff and NDIS rules underpinning key functions of the
Commissioner will be made from Royal Assent in accordance with section 4 of the
Acts Interpretation Act 1901.
Part 1 Amendments
National Disability Insurance Scheme Act 2013
Item 1 - After paragraph 3(1)(g)
8. This item inserts a new object into subsection 3(1) of the Act.
The Act sets out the objects and principles under which the NDIS operates,
including giving people with disability choice and control over the care and
support they receive, and giving effect in part to the United Nations Convention
on the Rights of Persons with Disabilities.
The objects in section 3 of the Act will apply to the functions and activities of the
Commissioner.
This item introduces a further object to 'protect and prevent people with
disability from experiencing harm arising from poor quality or unsafe supports
or services provided under the National Disability Insurance Scheme'.
2
Item 2 - At the end of subsection 3(2)
9. This item inserts a new paragraph into subsection 3(2) of the Act which
explains that the objects will be achieved in part by establishing a national regulatory
framework for persons and entities who provide supports and services to people with
disability, including certain supports and services provided outside the NDIS.
10. The primary focus of the Commission will be overseeing the regulatory
arrangements for NDIS providers; however there are a range of other providers who
are providing similar services to people with disability or supporting people with
disability in connection with NDIS supports and services. The NDIS rules may
prescribe providers of other programs to be covered by the Commission's quality
and safeguards arrangements.
Item 3 - Subsection 4(9)
11. This item amends subsection 4(9) of the Act so that the subsection applies to
the Commission as well as the Agency.
12. Subsection 4(9) of the Act provides that people with disability should be
supported in all their dealings and communications with the Agency and the
Commission so that their capacity to exercise choice and control is maximised in a
way that is appropriate to their circumstances and cultural needs.
Item 4 - Subsection 4(17)
13. This item amends subsection 4(17) of the Act to apply the general principles
guiding actions in section 4 of the Act to the Commissioner as well as the CEO of the
Agency.
Item 5 - Section 8
Item 6 - Section 8
14. These items amend the simplified outline at section 8 of the Act to include:
the regulation of persons and entities who provide supports and services to
people with disability under the NDIS. It also regulates supports and services
provided outside the NDIS in certain circumstances, where a programme or
provider is prescribed by the NDIS rules;
the new registration arrangements for registered NDIS providers (new Part 3A
of Chapter 4) depending on where a person with disability lives, as the
Commission is established in participating jurisdictions; and
the establishment of the NDIS Quality and Safeguards Commission and the
office of the NDIS Quality and Safeguards Commissioner (in new Chapter 6A of
the Act) and to note the functions of the Commission, which include:
3
(a) functions relating to the quality and safety of NDIS services and
supports provided to people with disability; and
(b) registering and overseeing the operations of NDIS providers; and
(c) managing and resolving complaints about NDIS providers; and
(d) providing leadership in relation to the use of behaviour supports and in
the reduction and elimination of the use of restrictive practices by
NDIS providers.
Item 7 - Section 9
Item 8 - Section 9 (definition of officer)
Item 9 - Section 9
Item 10 - Section 9 (definition of protected information)
Item 11 - Section 9
Item 12- Section 9 (definition of registered plan management provider)
Item 13 - Section 9
Item 14 - Section 9 (definition of reviewable decision)
15. These items define certain terms that are used in the Act. In this Explanatory
Memorandum, the defined terms will be addressed in the context in which they
appear.
Item 15 - After section 10
16. This item inserts a definition of participating jurisdiction for the purposes of
the Act. Participating jurisdiction is the term used to commence the NDIS Quality
and Safeguards Commission arrangements in each jurisdiction. New section 10A
defines a participating jurisdiction to be a State or Territory that the Minister has
previously, by legislative instrument, specified a host jurisdiction and which the
Minister has, also by legislative instrument, specified to be a participating jurisdiction.
The host jurisdiction must agree to being specified as a participating jurisdiction.
17. A note to the section explains that section 42 of the Legislation Act 2003 does
not apply to the instrument (see subsection 44(1) of that Act) as it facilitates the
establishment or operation of an intergovernmental scheme involving the
Commonwealth and one or more States.
18. A concept of a host jurisdiction is defined in section 10 of the Act and was used
to establish the NDIS in States and Territories.
4
19. The Minister and a host jurisdiction will enter into an agreement for the
purposes of commencing the transition of providers from existing State and Territory
quality and safeguards arrangements to the Commission. The agreements will
identify the roles and responsibilities of a State or Territory and the Commission
during transition. An agreement will inform the NDIS rules to be made under Part 2
of Schedule 1 of the Bill to facilitate matters including:
the transition of a State or Territory becoming a participating jurisdiction;
the transition of a person or entity from a registered provider of supports to a
registered NDIS provider;
the transition from the application of provisions of laws of the States and the
Territories to the application of provisions of the Act.
20. Schedule 1 of the Bill will not commence until 1 July 2018 which means that it
will not have jurisdiction over any incidents or complaints occurring prior to a State or
Territory becoming a participating jurisdiction.
Item 16 - At the end of Part 4 of Chapter 1
21. This item inserts a definition of key personnel of a person or entity. New
section 11A applies the term key personnel to people who have executive,
management and operational authority or responsibilities and includes people who
have significant influence over planning directing or controlling the activities of a
person or entity. New subsection 11A(2) applies the definition to directors of a body
corporate and in any other case, a member of the person's or entity's governing
body.
Item 17 - Subsection 33(6)
22. This item amends subsection 33(6) of the Act to cover supports provided by a
registered NDIS provider in a participating jurisdiction. Subsection 33(6) of the Act
explains that to the extent that funding for supports under a participant's plan is
managed by the Agency, the plan must provide that the supports are to be provided
only by a registered provider of supports.
Item 18 - Section 49 (note 2)
23. This item is a technical amendment to omit the words 'paragraph 99(d)' at
section 49 (note 2) and substitutes the words 'subsection 99(1)' to align the note with
the new numbering of the Act.
Item 19 - Paragraph 54(2)(d)
24. This item omits the word 'officer' and substitutes the words 'Agency officer' to
make it clear that this section only relates to an officer of the Agency.
5
Item 20 - Section 55 (heading)
25. This item amends the heading of section 55 of the Act to make it clear that the
section refers to the power of the CEO of the Agency (and not the Commissioner).
Item 21 - After section 55
26. This item inserts new section 55A which empowers the Commissioner to
require a person (other than a prospective participant or a person receiving supports
or services from an NDIS provider) to give information or produce a document to the
Commissioner if the Commissioner has reasonable grounds to believe that the
information or document may be relevant to one of the matters specified in
subsection 55A(2).
27. The matters for which the Commissioner may obtain information are directed
towards ensuring NDIS provider compliance with the Act and NDIS rules. They are
limited to:
whether a person applying for registration under new subsection 73E(1)
satisfies the requirements mentioned in that subsection;
whether a registered NDIS provider is meeting the conditions of registration
mentioned in new subsection 73F(1);
whether an NDIS provider, or a person employed or otherwise engaged by an
NDIS provider, is complying with the requirements of the NDIS Code of
Conduct;
whether an NDIS provider is contravening new subsection 73B(2) (requirement
to be a registered NDIS provider);
if an NDIS provider, or a person employed or otherwise engaged by an NDIS
provider, is subject to a banning order--whether the person is providing
supports or services in contravention of the order;
the functions of the Commissioner.
28. The power to obtain information may be used by the Commissioner in order to
make initial enquiries about whether an NDIS provider may have contravened, is
contravening, or is likely to contravene the Act. This will enable informed decisions
to be made about whether to commence monitoring powers under Part 2 of the
Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) or an
investigation under Part 3 of that Act. Importantly, it does not extend to requiring
information from prospective participants or persons receiving supports or services
from an NDIS provider.
29. This power may also be used to support the Commissioner's inquiry function
under the complaints and reportable incident arrangements in Division 5 and Division
6 outlined below.
6
30. In addition to ensuring the integrity of the NDIS, the protection of people with
disability from poor quality or unsafe supports or services, and ensuring NDIS
provider compliance with the Act, the purpose of this new section is to enable the
Commissioner to collect and obtain information required in order to perform his or
her functions.
Item 22 - Subsection 56(1)
Item 23 - Paragraph 56(2)(c)
Item 24 - Paragraph 56(2)(d)
Item 25 - Subsections 56(4) and (5)
31. These items are technical amendments to section 56 of the Act to apply the
requirements under section 56 in relation to written notices to the Commissioner in
exercising powers under new section 55A.
32. Section 56 provides that a notice given under section 55 of the Act or new
section 55A must be in writing, and must specify certain information, which reflects
the requirements in section 54.
33. In addition, subsection 56(4) provides that a notice may require the person to
give the information requested by appearing before a specified officer to answer
questions. If the notice includes a requirement to appear before an officer and to
answer questions, then it must also state the time and place where the person must
appear, and the time must be at least 14 days after the notice is given.
Item 26 - Subsection 57(1)
34. This item is a technical amendment to extend the operation of section 57 to a
requirement to give information, or produce a document to the Commissioner under
new section 55A.
35. Section 57 provides for a criminal offence for the failure of a person (other than
a participant, prospective participant or person receiving supports or services from
an NDIS provider) to comply with a requirement under section 55 and new section
55A, unless they have a reasonable excuse. The penalty is a maximum of 30
penalty units. A penalty unit is prescribed for the purposes of the Crimes Act 1914.
That Act also provides that, if a body corporate is convicted of an offence, a fine of
up to five times the penalty stated can be imposed.
36. The burden of proving whether a person has a reasonable excuse is on the
defendant, by virtue of subsection 13.3(3) of the Criminal Code. This provision in the
Criminal Code provides that a defendant who wishes to rely on any exception,
exemption, excuse, qualification or justification provided by the law creating an
offence bears an evidential burden in relation to that matter.
7
Item 27 - Subsections 58(1) and (2)
37. This item amends subsections 58(1) and (2) of the Act to extend the operation
of section 58 to the Commissioner and distinguish between a Commission officer
and an Agency officer.
38. Section 58 clarifies that the obligation to give information, produce a document
or give evidence for the purposes of the Act is not affected by State or Territory laws
(subsection 58(1)). However, under subsection 58(2), a person is not required to
give the required information or documents to the Agency or the Commission if the
person would be prevented from doing so under a law of a State or Territory and that
law has been prescribed by the NDIS rules.
Item 28 - Before section 60
Division 1 - Information held by the Agency
Item 29 - Paragraph 60(2)(a)
Item 30 - Section 62 (heading)
Item 31 - Paragraph 62(c)
Item 32 - Section 63 (heading)
Item 33 - Paragraph 63(a)
Item 34 - Paragraph 63(c)
Item 35 - Section 64 (heading)
Item 36 - Paragraphs 64(1)(b) and (2)(b)
Item 37 - Subsection 64(3)
Item 38 - Section 65
Item 39 - Subsection 66(1)
Item 40 - Paragraph 66(1)(a)
Item 41 - Subsection 66(2)
Item 42 - Subsection 66(3)
Item 43 - Section 67
Item 44 - Section 68
8
39. These items are technical amendments which introduce new 'Division 1 -
Information held by the Agency' in Part 2 of Chapter 4 of the Act. Consequential
amendments are made to sections 60 through to section 68 to clarify those sections
only apply to the Agency.
40. Item 39 and 40 make technical amendments to align the information
protections to those established in new 'Division 2 - Information held by the
Commission'. The amendments strengthen the protections applying to the
disclosure of information by the CEO of the Agency and apply a less subjective test
to subsection 66(1)(a). Instead of the CEO 'certifying' that it is necessary in the
public interest to disclose information in accordance with section 66, the CEO must
be 'satisfied on reasonable grounds' that it is in the public interest to do so in a
particular case or class of cases.
Item 45 - At the end of Part 2 of Chapter 4
41. This item introduces:
new Division 2 of Part 2 of Chapter 4 of the Act in relation to protection and
disclosure of information held by the Commission; and
new Division 3 of Part 2 of Chapter 4 of the Act in relation information generally.
Division 2 - Information held by the Commission
New section 67A - Protection of information held by the Commission etc.
42. New section 67A sets out the measures that must be taken for the protection of
personal information that the Commission may obtain in the course of performing its
functions. A large amount of personal information will likely be acquired by the
Commission through the performance of its functions, and the protection of that
information and a person's right to privacy is considered paramount. The new
information sections are intended to protect the personal, and potentially sensitive,
information of people who are affected by the establishment of the Commission and
its functions.
43. The meaning of protected Commission information is included in the new
definitions contained in section 9, and is information about a person that is or was
held in the records of the Commission, or information to the effect that the
Commission holds no information about a person. The definition of protected
Commission information does not prevent the disclosure of information about the
general workings of the Commission.
44. A person may only make a record, disclose or otherwise use protected
information in the following circumstances:
for the purposes of the Act;
for the purpose for which the information was disclosed to the person under
new section 67E;
9
with the express or implied authorisation of the person to whom the information
relates; or
if the person believes on reasonable grounds that doing so is necessary to
prevent or lessen a serious threat to an individual's life, health or safety (new
subsection 67A(1)(e)).
45. New subsection 67A(1)(e) would, for example, enable persons to report
incidents involving a threat to an individual's life, health or safety to relevant State or
Territory authorities.
46. Without limiting new subsection 67A(1), the obtaining, recording, disclosure or
use of information is taken 'to be for the purposes of the Act' if the Commissioner
reasonably believes that it is reasonably necessary for one or more of the following:
research matters relevant to the NDIS;
policy development.
47. People need to have confidence that the information they provide to the
Commission will be protected otherwise there is a risk that they will not come forward
to provide information the Commission requires to carry out its functions. This is
particularly important as recent inquiries into disability services have demonstrated
regulatory failures in the current mechanisms in place to record and report incidents
and to protect and prevent harm to people with disability.
New section 67B - Offence - unauthorised use or disclosure of protected
Commission information
48. New section 67B creates an offence of unauthorised use or disclosure of
protected information. The rationale for this offence is that the injury caused by
unauthorised use of protected information to an individual can be severe. A person
commits an offence if they make a record of information, disclose information to any
other person, or otherwise make use of information (and are not otherwise
authorised to so under the Act). The penalty is a maximum of two years'
imprisonment or 120 penalty units (or up to five times this amount for a body
corporate).
49. This offence does not include a harm element. That is, it is inherently
recognised that any unauthorised recording, disclosure or use of protected
Commission information is harmful. It is inherently harmful because:
the Commission will work with people with disability, who are widely viewed as
some of the most vulnerable in the Australian community and will be holding
information about them;
the Commission will also be working with providers who work with people with
disability;
10
there is a need for the Commission to establish and maintain public trust and
confidence and act in the public interest;
there is a need to assure the community (which includes people with disability,
providers and people who work for providers) that the Commission will
adequately protect information it has been given in the course of carrying out its
functions.
New section 67C - Offence - soliciting disclosure of protected Commission
information
50. New section 67C creates an offence of soliciting the disclosure of protected
Commission information. Soliciting information in the context of this offence
includes, but is not limited to, asking or requesting information, to entice or urge a
person to provide information or to try to obtain information through bribery or threat.
51. A person commits an offence if they solicit the disclosure of information from an
officer or another person (whether or not any protected Commission information is
actually disclosed), the disclosure would contravene the Act, and the information is
protected Commission information. The penalty is two years' imprisonment or 120
penalty units (or up to five times this amount for a body corporate). This offence
does not include a harm element for the same reasons outlined in relation to new
section 67B.
New section 67D - Offence - offering to supply protected Commission information
52. New section 67D creates an offence of supplying protected Commission
information. Subsection 67D(1) provides that a person commits an offence if they
offer to supply (whether to a particular person or otherwise) information about
another person and they know it is protected Commission information. The penalty
is two years' imprisonment or 120 penalty units (or up to five times this amount for a
body corporate). This offence does not include a harm element for the same
reasons outlined in relation to new section 67B.
53. New subsection 67D(2) provides that a person also commits an offence if they
hold themselves out as being able to supply (whether to a particular person or
otherwise) information about another person, and they know it is protected
Commission information.
54. New subsection 67D(3) clarifies that subsections 67D(1) and 67D(2) do not
apply to an officer acting in the performance or exercise of duties, functions or
powers under the Act.
New section 67E - Disclosure of information by Commissioner
55. New section 67E gives the Commissioner the power to disclose information
(including information that is protected Commission information) in strictly limited
circumstances. This includes the power to disclose information if the Commissioner
is satisfied on reasonable grounds that it is in the public interest to do so - for
11
example, if it is necessary for the protection of persons with disability or the
investigation of a criminal offence.
56. The Commissioner may also disclose information, including protected
Commission information, to the head of a Department of State or Territory authority
of the Commonwealth (including the Agency), or of a State or Territory for the
purposes of that Department or authority. Information may also be disclosed to
persons where this has been expressly or impliedly authorised by the person to
whom the information relates.
57. New subsection 67E(2) provides that, in disclosing information for the purposes
of subsection 67E(1), the Commissioner must act in accordance with the NDIS rules
made for the purposes of new section 67F.
58. The Commissioner needs to strictly control disclosures of information provided
to it, especially information relating to people with disability. The Australian Law
Reform Committee Report 112 Secrecy Laws and Open Government in Australia
2009, noted that unauthorised disclosure of personal information is harmful to the
relationship between the government, affected individuals and the public in general.
This relationship is integral to an effective regulatory system and the integrity of any
regulatory regime, especially one aimed at protecting people with disability from
harm.
59. 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.
60. The broad disclosure powers of the Commission reflect the fact that the
Commission must work effectively with other bodies in promoting and protecting the
rights of people with disability, as well as protecting and preventing people with
disability from experiencing harm as a result of poor quality or unsafe supports or
services.
61. Matters that come to the Commissions attention through complaints and
reportable incidents may have wide ranging implications that are broader than the
NDIS. In this context there will at times be a need to disclose information to relevant
State, Territory and Commonwealth bodies for further investigation, action or
information. Enabling information to be exchanged with relevant bodies is essential
to ensuring efficient and appropriate regulatory and other responses, especially
where vulnerable people may be at risk of harm.
62. New subsection 67E(3) clarifies that the Commissioner may give protected
information to a participant's nominee if it relates to the participant and the
information is or was held in the records of the Commissioner.
12
New section 67F - NDIS rules for exercise of Commissioner's disclosure powers
63. New section 67F provides that NDIS rules may make provision for and in
relation to the exercise of the Commissioner's powers to disclose information for the
purposes of subsections 67E(1)(a) or subsection 67E(1)(b)(i), (iii) or (iv). The rules
will need to be made prior to the Commissioner exercising powers under new section
67E.
Division 3 - Information generally
New section 67G - Protection of certain documents etc. from production to court etc.
64. New section 67G provides that a person must not, except for the purposes of
the Act, be required to produce any document in their possession or disclose any
matter or thing they had or knew because of their performance, exercise of their
duties, functions or powers under the Act to a court, tribunal, authority or person who
has the power to require the production of documents or the answering of questions.
65. This is an important protection and discretion which enables people to provide
information to the Commission without fear of it being used against them in
proceedings which do not relate to the purposes of the Act. The new section does
not prevent a subpoena being issued to any person who provided the information to
the Commission.
New section 67H - Part does not affect the operation of the Freedom of Information
Act 1982
66. New section 67H clarifies that nothing in this Part relating to the disclosure of
information affects the operation of the Freedom of Information Act 1982.
Item 46 - After Part 3 of Chapter 4 (heading)
Item 47 - After paragraph 70(1)(c)
67. These items clarify that once the Commission is established in a participating
jurisdiction, Part 3 of the Act in relation to the Agency functions of registering
providers of supports will only continue to apply to providers in a State or Territory
which has not transitioned to the Commission registration arrangements, as a
participating jurisdiction.
Item 48 - After Part 3 of Chapter 3
Part 3A - NDIS providers
68. This item introduces new 'Part 3A - NDIS providers' which consists of 9
Divisions.
13
Division 1 - Application of Part
New section 73A - Application of Part
69. Division 1 establishes the scope and application of new Part 3A and provides
for access to the registration system for NDIS providers.
70. NDIS providers are defined in the new section 9 definitions to mean a person
(other than the Agency) who receives:
funding under the arrangements set out in Chapter 2 of the Act; or
NDIS amounts (other than as a participant); or
a person or entity that:
o provides supports or services to people with disability other than under
the NDIS; and
o is prescribed by the NDIS rules to be an NDIS provider.
71. NDIS amounts is defined in section 9 of the Act to mean an amount paid under
the NDIS in respect of reasonable and necessary supports funded under a
participant's plan. The amounts are payable under a plan developed for the
purposes of section 33 of the Act under Chapter 3.
72. A registered NDIS provider is defined to mean a person or entity that is
registered under new section 73E.
73. New section 73A provides that this Part applies in relation to:
persons or entities applying for registration to provide supports or services to
people with disability in participating jurisdictions; and
registered NDIS providers providing supports or services to people with
disability in participating jurisdictions; and
NDIS providers providing supports or services to people with disability in
participating jurisdictions.
74. NDIS providers in a participating jurisdiction will be covered by the new
arrangements established by Schedule 1 of the Bill including for registration
established under new Part 3A of the Act.
Background - registration arrangements under Part 3 of Chapter 4 of the Act
75. Under the current arrangements, a person or entity may apply to be a
registered provider of supports to manage the funding for supports under plans
and/or provide supports (sections 9 and 69(1) of the Act). The registration process is
14
based on the Agency being satisfied that a provider has undergone relevant quality
and assurance checks through existing State and Territory safeguarding systems.
76. Participants are able to exercise choice and control about the selection of their
providers. To the extent that funding under a participant's plan is managed by the
Agency, supports are to be provided only by a registered provider of supports
(subsection 33(6) of the Act).
77. Under subsection 35(2) of the Act, the NDIS rules may provide for the manner
in which supports are to be funded or provided. This provision and the NDIS rules
may stipulate supports for which providers must be registered in order to provide a
support for example, the National Disability Insurance Scheme (Specialist Disability
Accommodation) Rules.
78. Part 6 of the National Disability Insurance Scheme (Plan Management) Rules
2013 provides for some supports to be specifically identified in a statement of
participant supports (under section 33 of the Act) by reference to the type of support
and whether the supports will be provided by a particular provider or delivery mode.
79. The current arrangements for registration by the Agency contained in Part 3 of
Chapter 4 of the Act and the NDIS rules for registered providers of supports will
continue to operate and appear in the Act over the transition period until they
become a participating jurisdiction.
Registration arrangements under new Part 3A
80. Under the new arrangements, it is envisaged that an NDIS Registrar will
manage the quality assurance and registration of NDIS providers under a nationally
rigorous framework including Practice Standards and a Code of Conduct.
Division 2 - Registered NDIS providers
81. Regulatory requirements for NDIS providers will be tailored to ensure regulation
is proportionate to the level of risk associated with the services provided. This
means that providers offering supports or services that pose high risks (such as
behaviour support, including restrictive practices) will face stricter requirements than
those offering lower risk services (such as social activities).
82. Division 2 establishes the application process and matters which the
Commissioner must have regard to when determining an application. Once
registered an NDIS provider will be subject to standard conditions of registration,
including obligations in relation to the management of complaints and incidents,
adherence to the NDIS Practice Standards, Code of Conduct and notification of
reportable incidents. The Commissioner will also be empowered to impose
additional conditions on a class of supports, for example providers delivering
behaviour supports may be subject to reporting and other conditions relating to the
use of restrictive practices.
15
83. The Commissioner will have the ability to grant financial assistance to providers
applying to be registered where the cost of registration associated with an audit
would be a barrier to entry, or in regional or very remote locations.
New section 73B - Requirement to be a registered NDIS provider
84. New section 73B provides for NDIS rules to be made to specify classes of
supports provided under participant's plans which can only be provided by registered
NDIS providers. This is an important safeguard to ensure that for certain high risk
supports, such as developing or implementing behaviour support plans which may
include the use of a restrictive practice, a provider must meet the quality and
standards required to deliver those supports.
85. Where registration is mandated for a class of supports, the registration
arrangements provide for a rigorous framework for assessing the quality and safety
of supports, prior to a provider entering the NDIS market.
86. New subsection 73B(2) imposes a civil penalty on providers who provide a
support under a participant's plan for which they are required to be registered and
they are not registered.
87. The penalty is a maximum of 250 penalty units. A penalty unit is prescribed for
the purposes of the Crimes Act 1914. That Act also provides that, if a body
corporate is convicted of an offence, a fine of up to five times the penalty stated can
be imposed.
88. The penalty reflects an assessment about the high level of risk that a person
with disability may be exposed to if an unregistered provider provides high risk
supports but has not gone through the quality assurance process in order to be
registered for that category of supports.
89. Registration requirements will include a risk-based proportionate assessment of
an application to deliver categories of supports and services against the NDIS
Practice Standards. The NDIS rules will be able to prescribe classes of supports for
which registration is required based on emerging risks in a rapidly developing market
in which new and innovative supports and services are being offered to people with
disability under the NDIS.
90. This is consistent with the Commissioner's obligation in new subsection
181D(4) to support and maintain a diverse and sustainable NDIS market. In
response to any changes in NDIS rules requiring provider's to be registered, the
Commissioner will have an important educative role and will conduct compliance and
enforcement activities in a risk responsive and proportionate matter.
91. The note to new section 73B clarifies that subsection 33(5) of the Act provides
that if the funding for supports under a plan is managed by the Agency, supports are
to be provided only by a registered NDIS provider.
16
New section 73C - Application to be a registered NDIS provider
92. New subsection 73C(1) provides that a person (which is defined by the Acts
Interpretation Act 1901 to include a company, corporation or body corporate),
unincorporated association or a partnership may apply to the Commissioner to be a
registered NDIS provider in relation to one or more of the following:
the provision of supports or services under the arrangements under Chapter 2;
managing the funding for supports under participant's plans, or
providing supports under participant's plans.
93. New subsection 73C(2) provides that a person may also apply to the
Commissioner to be a registered NDIS provider in relation to the provision of
services or supports to people with disability other than under the NDIS if they are
prescribed for the purposes NDIS rules made under subparagraph (b)(ii) of the
definition of NDIS provider.
94. New subsection 73C(3) sets out some basic requirements for the application to
be a registered NDIS provider. The application must be in writing, in the form
approved by the Commissioner and include any information and accompanying
documents the Commissioner requires. The note at this subsection clarifies, with
reference to new section 197B, that the Commissioner is not required to make a
decision on the application if this subsection is not complied with.
95. New subsection 73C(4) provides for the Commissioner to require an applicant
for registration to give the Commissioner further information or documents in relation
to the application, as the Commissioner reasonably requires. The request for more
information or documents must be in the form of a written notice. The note at this
subsection clarifies, with reference to section 197B, that where the Commissioner
does not receive the requested information or documents, the Commissioner is not
required to make a decision on an application.
96. New subsection 73C(5) allows the Commissioner to specify, in the written
notice outlining the request under subsection 73C(4), a time period by which the
applicant is to give him or her the further information or documents requested under
subsection (3). This time period must not be less than 14 days from the time the
request was made.
New section 73D - False or misleading information or documents in application
97. New section 73D provides that if a person knowingly provides false or
misleading information or documents in, or in connection with, an application for
registration, that person contravenes the section and a civil penalty applies.
98. The penalty for this section is 60 penalty units. A penalty unit is prescribed for
the purposes of the Crimes Act 1914. That Act also provides that, if a body
corporate is convicted of an offence, a fine of up to five times the penalty stated can
be imposed.
17
New section 73E - Registration as a registered NDIS provider
99. New subsection 73E(1) sets out the matters which the Commissioner must take
into account in deciding whether to register a person as a registered NDIS provider:
the person (the applicant) must make an application in the form provided for in
new section 73C;
the applicant will provide supports or services to people with disability in a
participating jurisdiction;
the applicant has been assessed by an approved quality auditor as meeting the
applicable standards and other requirements prescribed by the NDIS Practice
Standards;
the Commissioner is satisfied that the applicant and any key personnel, are
suitable to provide supports or services to people with disability, having regard
to any matters prescribed by the NDIS rules; and
the applicant satisfies any other requirements prescribed by the NDIS rules.
100. New subsection 73E(2) provides that a person may be registered in respect of
one or more of:
the management of funding under a participant's plan;
the provision of supports under participant's plans;
providing specified classes of supports or services under the arrangement set
out in Chapter 2; or
providing specified classes of supports or services to people with disability
other than under the NDIS.
101. New subsection 73E(3) provides that if a banning order is in force in relation to
an applicant, the Commissioner cannot register the applicant in a way that would be
inconsistent with the banning order. A banning order may prohibit or restrict
specified activities of an NDIS provider or key personnel of an NDIS provider, for
example, from providing a support, or a specified class of supports. The
Commissioner may be able to register an applicant for a different support or class of
supports so long as it is not a support covered by a banning order.
102. New subsection 73E(4) provides that the Commissioner must provide written
notice of a decision in relation to registration, including reasons for that decision. A
decision to refuse to register a person as a registered NDIS provider is a reviewable
decision for the purposes of section 99 of the Act. Where a decision is made to
register the person, a certificate of registration containing the information set out in
new subsection 73E(5) must be provided to the person.
18
103. New subsection 73E(5) sets out the following matters which must be specified
in a certificate of registration:
which of the following the person is a registered NDIS provider in relation to:
o managing the funding for supports under plans;
o the provision of supports under plans;
o the provision of supports or services under the arrangements set out in
Chapter 3;
o the provision of services of supports to people with disability other than
under the NDIS;
the class of supports or services the person is registered to provide;
if the person is registered in respect of a class of persons, the class of persons
in respect of which the provider is registered;
any conditions on the registration imposed by the Commissioner under new
section 73G;
the period for which the registration is in force; and
any other matter determined, in writing, by the Commissioner for the purpose of
this paragraph.
104. The note to new subsection 73E(5) makes it clear that the registration of a
person may be varied, suspended or revoked by the Commissioner and the period
for which the registration is in force may be extended or varied.
105. New subsection 73E(6) clarifies that a determination of the Commissioner
made under new subsection 73E(5) is not a legislative instrument within the meaning
of subsection 8(1) of the Legislation Act 2003 because it does not determine the law
but rather, sets out administrative decisions.
New section 73F - Registration is subject to conditions
106. New section 73F sets out the conditions that a registered NDIS provider is
subject to upon registration and includes the conditions as set out in new subsection
73F(2) below, any conditions imposed by the Commissioner under new section 73G
and any conditions determined by the NDIS rules under new section 73H.
107. New subsection 73F(2) sets out the following conditions that a registered NDIS
provider is subject to:
a condition that the person comply with all applicable requirements imposed by
a law of the Commonwealth or a law of a State or Territory in which the person
or entity operates as a registered NDIS provider;
19
a condition that the person comply with all applicable requirements of the NDIS
Code of Conduct;
a condition that the person comply with all applicable standards and other
requirements of the NDIS Practice Standards;
a condition that the person implement and maintain the applicable complaints
management system and resolution in accordance with new section 73W;
a condition that the person comply with all applicable requirements relating to
complaints prescribed by the NDIS rules for the purposes of new section 73X;
a condition that the person implement and maintain the applicable incident
management system in accordance with new section 73Y;
a condition that the person comply with all applicable requirements relating to
reportable incidents prescribed by the NDIS rules for the purposes of new
section 73Z;
a condition that the person comply with all applicable requirements relating to
record keeping prescribed by the NDIS rules for the purposes of new section
73Q; and
a condition that the person give to the Commissioner, on request, information
specified in the request within the period specified in the request (which must
not be less than 14 days).
New section 73G - Conditions specified in certificate of registration
108. New subsection 73G(1) provides that the Commissioner may impose conditions
on the registration of a person as a registered NDIS provider.
109. New subsection 73G(2) clarifies that a condition may be imposed either at the
time of registration, or at a later time. The note at this subsection clarifies that any
condition imposed under new section 73G may also be varied or revoked (see new
section 73L).
110. New subsection 73G(3) sets out, by way of example, some of the conditions
that may be imposed on registered NDIS providers. These include conditions
relating to:
the type of quality audits the provider must undergo;
the timing of quality audits;
specific requirements relating to the supports or services for which the provider
is registered, including supports or services which can or cannot be provided.
20
111. A decision to impose conditions to which a person's registration as a registered
NDIS provider is a reviewable decision for the purposes of section 99 of the Act
New section 73H - Conditions determined by NDIS rules
112. New section 73H provides that the NDIS rules may determine additional
conditions that apply to registered NDIS providers, or to a specified class of
registration.
New section 73J - Registered NDIS providers must comply with conditions of
registration
113. New section 73J makes it an offence for a person who is a registered NDIS
provider not to comply with a condition to which the registration of that person is
subject.
114. The penalty for this section is 250 penalty units. A penalty unit is prescribed for
the purposes of the Crimes Act 1914. That Act also provides that, if a body
corporate is convicted of an offence, a fine of up to five times the penalty stated can
be imposed.
New section 73K - Extension of period for which registration is in force
115. New section 73K provides for the registration of a person as an NDIS provider
to continue in force until a decision is made on a new application to be a registered
provider. This section applies where the registration to which the application relates
will cease to be in force on a particular day and an application is made within 6
months before the day the registration ceases to be in force.
116. This section would only apply where a person is seeking to renew their
registration for the same supports or class of supports for which they are registered.
It would not apply in relation to any new class of supports for which a person is
seeking to be registered.
117. This section does not limit the Commissioner's powers under new section 73G
to determine the types of quality audits a provider must undergo and the timing of
such audits.
New section 73L - Variation of registration
118. New section 73L provides that the Commissioner may vary the registration of a
registered NDIS provider, either on the Commissioner's own initiative or on
application for variation by a provider under new section 73M. The Commissioner
must provide a written notice of the variation to the provider. Where the variation is
on the Commissioner's own initiative, the Commissioner may vary the registration at
any time.
119. New subsection 73L(2) provides that the Commissioner may vary the
registration of a registered NDIS provider if the Commissioner considers that it is
appropriate in all the circumstances to do so.
21
120. New subsection 73L(3) sets out some possible variations to a registered NDIS
provider's registration including to:
impose, vary or revoke conditions to which the registration is subject under new
section 73G;
reduce or extend the period for which the registration is in force;
extend, modify or reduce the supports or services the provider is registered to
provide.
121. New subsection 73L(4) provides that where the Commissioner has decided to
vary the registration of a registered NDIS provider, the Commissioner must provide a
new certificate of registration as varied to the provider.
122. New subsection 73L(5) provides that where a registered NDIS provider has
applied to have their registration varied under new section 73M, and the
Commissioner refuses to vary the registration as requested, the Commissioner must
provide written notice of the refusal, including reasons for the refusal.
123. New subsection 73L(6) provides that a variation of a registered NDIS provider's
registration takes effect on the day specified in the notice of variation given to the
provider.
New section 73M - Application for variation of registration
124. New subsection 73M(1) provides for a registered NDIS provider to apply for a
variation to the provider's registration. For example, an application may be made in
relation to seeking to be registered to provide additional supports or to vary a
condition of registration.
125. New subsection 73M(2) sets out the requirements for an application for
variation, which include the need to be in writing, in a form, if any, approved by the
Commissioner and include any information and documentation required by the
Commissioner. The Commissioner is not required to make a decision on the
application if this subsection is not complied with (see new section 197B).
126. New subsection 73M(3) provides that the Commissioner may, by written notice,
request additional information and documents as reasonably required by the
Commissioner in relation to the registered NDIS provider's application for variation of
their registration. The Commissioner is not required to make a decision on the
application if this subsection is not complied with (see new section 197B).
127. New subsection 73M(4) provides that a notice given to an applicant under new
subsection 73M(3) may specify a period of time, not less than 14 days, in which any
additional information and documents must be given to the Commissioner.
22
New section 73N - Suspension of registration
128. New subsection 73N outlines the circumstances in which the Commissioner
may, in writing, suspend the registration of an NDIS provider's registration for a
specified period of time. These circumstances are as follows:
the Commissioner reasonably believes that the person has contravened, is
contravening, or is proposing to contravene, the Act; or
the Commissioner reasonably believes that the application for registration by
the person contained information that was false or misleading in a material
particular; or
the person is an insolvent under administration; or
the Commissioner is satisfied that the person is no longer suitable to provide
supports or services to people with disability, having regard to any matters
prescribed by the NDIS rules; or
the Commissioner is no longer satisfied that the key personnel of the person (if
any) are suitable to be involved in the provision of supports or services to
people with disability, having regard to any matters prescribed by the NDIS
rules; or
a circumstance exists that is a circumstance prescribed by NDIS rules for the
purposes of this paragraph.
129. The NDIS rules may provide for circumstances in which a provider may be
suspended in relation to a class of supports but not others or in respect of a
particular location where for example, the Commissioner considers that a
contravention is limited to a class of supports or a particular location from which
supports are provided.
130. New subsection 73N(2) clarifies that the specified period in subsection (1) must
not be longer than 30 days.
131. New subsection 73N(3) makes it clear that the Commissioner can suspend a
registered provider more than once. For example, where the matter giving rise to a
suspension has not resolved within the period of time specified in the notice.
132. New subsection 73N(4) sets out the matters that the Commissioner must have
regard to in deciding whether to suspend the registration of a registered NDIS
provider. These matters are as follows:
the nature, significance and persistence of any contravention, or proposed
contravention, of the Act;
action that can be taken to address any contravention, or proposed
contravention, of the Act;
23
the extent (if any) to which the person is conducting its affairs as a registered
NDIS provider in a way that may cause harm to, or jeopardise, public trust in
the NDIS;
the health, safety or wellbeing of people with disability receiving supports or
services from the person;
any other matter the Commissioner considers relevant.
133. New subsection 73N(5) requires the Commissioner to give written notice of a
suspension including reasons for the suspension to a provider.
134. A decision to suspend the registration of a registered NDIS provider is a
reviewable decision for the purposes of section 99 of the Act.
135. New subsection 73N(6) provides that the Commissioner may, in writing,
suspend a registered NDIS provider for a specified period at the request of a
registered NDIS provider.
136. New subsection 73N(7) provides that where a registered NDIS provider is
suspended, the provider's registration ceases to have effect until the suspension
ceases to be in force.
New section 73P - Revocation of registration
137. New subsection 73P(1) sets out the circumstances in which the Commissioner
may, in writing, revoke the registration of a registered NDIS provider. These
circumstances are as follows:
the Commissioner reasonably believes that the person has contravened, is
contravening, or is proposing to contravene, the Act; or
the application for registration by the person contained information that was
false or misleading in a material particular; or
the person is an insolvent under administration; or
the Commissioner is satisfied that the person is no longer suitable to provide
supports or services to people with disability, having regard to any matters
prescribed by the NDIS rules; or
the Commissioner is no longer satisfied that the key personnel of the person (if
any) are suitable to be involved in the provision of supports or services for
which the person is registered to provide, having regard to any matters
prescribed by the NDIS rules; or
a circumstance exists that is a circumstance prescribed by the NDIS rules.
24
138. New subsection 73P(2) sets out the matters that the Commission must have
regard to in deciding whether to revoke a registered NDIS provider's registration.
These circumstances are as follows:
the nature, significance and persistence of any contravention, or proposed
contravention, of the Act;
action that can be taken to address any contravention, or proposed
contravention, of the Act;
the extent (if any) to which the person is conducting its affairs as a registered
NDIS provider in a way that may cause harm to, or jeopardise, public trust in
the NDIS;
the health, safety or wellbeing of people with disability receiving supports or
services from the person;
any other matter the Commissioner considers relevant.
139. New subsection 73P(3) provides that the Commissioner may, in writing, revoke
a registered NDIS provider's registration if the provider requests that the
Commissioner revoke its registration as a registered NDIS provider.
140. New subsection 73P(4) sets out a process that must be followed by the
Commissioner when he or she is considering revoking a registered NDIS provider's
registration under subsection (1). The Commissioner must give the provider a
written notice which notifies the provider that the Commissioner is considering
revoking the provider's registration as a registered NDIS provider and includes the
Commissioner's reasons for considering the revocation. In addition, the notice must
invite the provider to make written submissions to the Commissioner within 28 days
of receiving the notice, setting out, for example, why the Commissioner should not
revoke the provider's registration. The notice must also inform the provider that,
where no submissions are received within 28 days, the revocation of the provider's
registration may take effect as early as 7 days after the end of the 28 day period.
141. New subsection 73P(5) provides that, when the Commissioner is deciding
whether to revoke a registered NDIS provider's registration after notifying the
provider that he or she is considering doing so, the Commissioner must have regard
to any submissions that were provided to the Commissioner within the 28 day period.
142. New subsection 73P(6) provides that the Commissioner must notify the
provider in writing of his or her decision to revoke, or not to revoke, the provider's
registration.
143. New subsection 73P(7) provides that the notice under new subsection 73P(6)
must be given to a registered NDIS provider within 28 days after the end of the
period for making submissions. Where the Commissioner does not give the notice
within 28 days, the Commissioner is taken to have decided not to revoke the
provider's registration.
25
144. A decision to revoke, or not to revoke, the registration of a person as a
registered NDIS provider is a reviewable decision for the purposes of section 99 of
the Act.
New section 73Q - Record keeping by registered NDIS providers
145. New section 73Q requires registered NDIS providers to keep records of the
kind, for the period and in the form prescribed by the NDIS rules. This section is not
intended to replace any other record keeping requirements that may apply. The
NDIS market is diverse and new providers may not be subject to any existing record
keeping obligations.
146. Compliance with this section is a condition of registration, breach of which may
result in a civil penalty. The maximum is 250 penalty units. A penalty unit is
prescribed for the purposes of the Crimes Act 1914. That Act also provides that, if a
body corporate is convicted of an offence, a fine of up to five times the penalty stated
can be imposed.
147. Record keeping is important obligation in the context of the use of NDIS funding
to provide supports and services to vulnerable people. The records that need to be
kept include those that are relevant to the management of incidents and complaints.
In the absence of relevant records, the Commissioner will not be able to properly
assess whether NDIS providers have complied with their obligations under the Act,
including that relevant evidence for consideration in the context of investigations.
New section 73R - Record keeping by former registered NDIS providers
148. New section 73R requires a person who has ceased to be a registered NDIS
provider to keep records that the person was required to retain under new section
73Q for a period of 3 years commencing on the day the person ceased to be a
registered NDIS provider.
149. The penalty for contravening this section is a maximum of 60 penalty units. A
penalty unit is prescribed for the purposes of the Crimes Act 1914. That Act also
provides that, if a body corporate is convicted of an offence, a fine of up to five times
the penalty stated can be imposed.
New section 73S - Grants of financial assistance in relation to registration
150. New subsection 73S(1) provides that the Commissioner may, on behalf of the
Commonwealth, grant financial assistance to a person or entity in relation to, and for
the purpose of, applications for registration, or variations to registration, as a
registered NDIS provider under the Act. A grant of financial assistance is intended to
support providers become established where the cost of an audit is a barrier to being
a registered NDIS provider or in regional, remote or very remote locations
151. New subsection 73S(2) provides that the terms and conditions of the grant of
financial assistance are to be set out in a written agreement between the
Commonwealth and the person.
26
152. New subsection 73S(3) provides that the Commissioner may enter into a
written agreement required under new subsection 73S(2) on behalf of the
Commonwealth.
Division 3 - Quality assurance
153. The NDIS Practice Standards establish the quality expectations of the
Commissioner for the provision of supports and services in the NDIS. The
application of the standards is based on the inherent risk of the supports or services
and proportionate to the size and scale of a provider. These standards will
benchmark and establish ongoing compliance obligations relating to the quality of
support delivery, the rights of people with disability, the management of
organisational and operational risk, continuous improvement, legal obligations and
workforce management. They will reflect the existing National Standards for
Disability and Mental Health Services, and bring them within the changing regulatory
environment of the NDIS market. The standards will be assessed as a component of
the registration process via an audit process. These audits will be conducted by
third party, market-based quality auditors - similar to current arrangements in
several jurisdictions.
New section 73T - NDIS Practice Standards
154. New section 73T provides for NDIS rules to be made for or in relation to
standards concerning the quality of supports or services to be provided by registered
NDIS providers. Compliance with the NDIS Practice Standards by registered NDIS
providers is a condition of registration (see new subsection 73E(2)(a)).
155. New subsection 73T(2) provides that the rules made under new subsection
73T(1) are to be known as the NDIS Practice Standards.
156. New subsection 73T(3) outlines the matters the NDIS Practice Standards may
provide for, including but not limited to the following:
standards to be complied with to become a registered NDIS provider;
standards to be complied with to remain a registered NDIS provider;
matters relating to assessing compliance with the standards;
matters relating to the requirement to screen workers employed or otherwise
engaged by registered NDIS providers.
157. In relation to the screening of workers, the NDIS Practice Standards will
reference the national NDIS worker screening policy to be developed under new
section 181E(f).
158. Providers delivering higher risk supports will be required to obtain third party
quality certification against the NDIS Practice Standards. Providers delivering lower-
risk supports will undergo a 'lighter touch' periodic verification process. This
27
approach is intended to minimise the regulatory impost on providers whose supports
and services are considered to be low risk because of the nature of the support or
because they are subject to existing regulatory frameworks, such as through
professional bodies or associations. Providers of these supports may still choose to
undergo quality assurance certification if they believe it would be beneficial for their
organisation.
New section 73U - Approved quality auditors
159. New section 73U provides for the Commissioner to be able to approve a person
or body to be an approved quality auditor for the purposes of the Act. The role of an
approved quality auditor will include conducting audits of providers against the NDIS
Practice Standards. In considering whether to approve a quality auditor, the
Commissioner will rely on information provided by an independent accreditation
body.
160. New subsection 73U(2) provides that an approval given under this subsection
(1) is not a legislative instrument within the meaning of subsection 8(1) of the
Legislation Act 2003 because it does not determine the law but provides for the
making of administrative decisions.
161. New subsection 73U(3) provides that the Commissioner may publish a list of
approved quality auditors on the Commission's website. This public list will assist
NDIS providers seeking registration to engage an approved quality auditor for the
purpose of applying for registration and being assessed against the applicable
standards and other requirements prescribed by the NDIS Practice Standards.
Division 4 - NDIS Code of Conduct
162. An NDIS Code of Conduct contributes to safe and ethical service delivery by
explicitly stating the standards and obligations that people with disability and all
Australians can expect of providers and workers delivering NDIS supports and
service. It will have both a preventative effect, by clearly setting out expectations of
providers and workers and a corrective effect through sanctions by providing a
mechanism for enforcing compliance of providers and workers who engage in
unacceptable conduct in the NDIS market.
New section 73V - NDIS Code of Conduct
163. New section 73V provides for NDIS rules to be made to establish an NDIS
Code of Conduct that applies to all NDIS providers, regardless of whether they are
registered, and to persons employed or otherwise engaged by NDIS providers.
164. The penalty for contravening the Code of Conduct is a maximum of 250 penalty
units. A penalty unit is prescribed for the purposes of the Crimes Act 1914. That Act
also provides that, if a body corporate is convicted of an offence, a fine of up to five
times the penalty stated can be imposed.
28
165. In addition to civil penalties, the full range of enforcement action and sanctions
described below in Division 8 is available to the Commissioner in determining the
appropriate regulatory response to non-compliance with the Code of Conduct.
Division 5 - Complaints management and resolution
166. Complaints create opportunities to address harm, conflict and
misunderstandings and improve the quality of supports. Expectations and
obligations of all parties to a complaint can be clarified, and damaged relationships
can often be repaired before a complaint escalates any further. Complaints and
disputes need to be resolved fairly, effectively and promptly. People with disability
need to feel safe to make a complaint or provide negative feedback without fear of
adverse consequences or loss of service.
167. The Commission will address complaints in a way that upholds the human
rights of those involved and improves the quality and safety of NDIS funded
supports. For providers, a critical element of quality supports and service is the
establishment and maintenance of a workplace culture that values and is inclusive of
people with disability. Such a culture can be promoted through an open and
effective complaints management system.
New section 73W - Complaints management and resolution system - registered
NDIS providers
168. New section 73W imposes an obligation on registered NDIS providers, as a
condition of registration, to implement and maintain a complaints management and
resolution system that:
is appropriate for the size of the provider and for the classes of supports or
services provided by the provider; and
complies with any requirements prescribed by the NDIS rules.
New section 73X - Arrangements relating to the management and resolution of
complaints
169. New subsection 73X(1) provides that the NDIS rules may prescribe
arrangements relating to the management and resolution of complaints arising out
of, or in connection with, the provision of supports or services by NDIS providers.
170. Any person can make a complaint about NDIS funded supports or services
including people with disability, participants, family members, individual workers or
providers, advocates, a professional or member of the community. The
Commissioner will receive and help to resolve complaints about providers of NDIS
funded supports, regardless of whether they are registered.
171. Complaints about the Agency or its staff will generally be handled through
existing complaints management arrangements within the Agency or by the
Commonwealth Ombudsman. The Commissioner will operate on the basis of a no
29
wrong door approach and if necessary will support the appropriate referral of
complaints to other bodies as appropriate.
172. New subsection 73X(2) outlines out the matters the NDIS rules may deal with
including:
how complaints may be made, managed and resolved, including methods to
support the early resolution of complaints;
the roles, rights and responsibilities of people with disability, complainants,
NDIS providers and other persons in relation to the management and resolution
of complaints;
considerations relevant to making decisions under the NDIS rules in relation to
complaints;
procedures for the review of decisions and processes;
actions that must or may be taken (including making requirements of NDIS
providers) to address complaints;
authorising the provision of information relating to complaints to the Minister,
the Agency or other specified bodies;
the matters in relation to which the Commissioner may authorise an inquiry, on
his or her own initiative.
173. The Commissioner may commence an inquiry in relation to any information that
it receives. An inquiry enables the Commissioner to seek further information about a
matter that may be broader than the consideration of NDIS provider compliance with
the Act. The Commissioner may invite interested people to provide information or
submissions or use the information gathering powers in new section 55A in relation
to an inquiry.
174. The inquiry process is intended to determine or define potential matters
including any systemic issues which may be connected with supports or services
provided under the NDIS. Where the Commissioner determines or defines an issue
but has no direct ability to further consider or resolve the matter, the Commissioner
may provide a report and recommendations to assist in the resolution of issues and
further the Commissioner's functions in relation to promoting and protecting the
rights, health, safety and wellbeing of people with disability. An inquiry may also
lead to the Commissioner engaging monitoring or investigation powers in relation to
NDIS provider compliance with the Act.
Division 6 - Incident management - registered NDIS providers
175. Incident management requires a response that seeks to address the wellbeing
and immediate safety of the people involved, and the opportunity should be taken to
review and improve operational practices as appropriate to reduce the risk of further
harm. Both the response and review should focus on the impact of the incident on
30
the person with disability and system level improvements that should be addressed
as part of any investigation and achieved as a result of any remedial action.
176. Key features of incident management systems include clear obligations and
legislative requirement for NDIS providers to record and respond to incidents and for
there to be notification and oversight of incidents by an independent body with
regulatory powers.
New section 73Y - Incident management system
177. New section 73Y imposes obligations on registered NDIS providers to
implement and maintain an incident management system that is appropriate having
regard to the size of the provider and the classes or types of supports or services
provided by the provider. The system must comply with any other requirements
prescribed in the NDIS rules.
New section73Z - Reportable incidents
178. New subsection 73Z(1) provides for NDIS rules to prescribe arrangements
relating to the notification and management of reportable incidents that occur, or are
alleged to have occurred in connection with, the provision of supports or services by
NDIS providers. The phrase 'in connection with' is intended to be broad and include
incidents or allegations of incidents that:
may have occurred during the course of supports being provided;
arise out of the provision, alteration or withdrawal of supports;
may not have occurred during the provision of supports but are connected
because it arose out of the provision of supports.
179. New subsection 73Z(2) outlines some of the matters the NDIS rules may deal
with including:
the manner and period within which reportable incidents must be reported to
the Commission;
action that must be taken in relation to reportable incidents;
authorising the provision of information relating to reportable incidents to the
Minister, the Agency or other specified bodies;
the matters in which the Commissioner may authorise an inquiry in relation to a
reportable incident, on his or her own initiative.
180. The Commissioner may commence an inquiry in relation to information that it
receives. An inquiry enables the Commissioner to seek further information about a
matter that may be broader than the consideration of NDIS provider compliance with
the Act. The Commissioner may invite interested people to provide information or
31
submissions or use the information gathering powers in new section 55A in relation
to an inquiry.
181. The inquiry process is intended to determine or define potential matters
including any systemic issues which may be connected with supports or services
provided under the NDIS. Where the Commissioner determines or defines an issue
but has no direct ability to further consider or resolve the matter, the Commissioner
may provide a report and recommendations to assist in the resolution of issues and
further the Commissioner's functions in relation to promoting and protecting the
rights, health, safety and wellbeing of people with disability. An inquiry may also
lead to the Commissioner engaging monitoring or investigation powers in relation to
NDIS provider compliance with the Act.
182. New subsection 73Z(3) provides that action that must be taken in relation to or
in response to a reportable incident may include requiring, at the cost of a registered
NDIS provider, an independent investigation to be conducted into a reportable
incident and providing a report of that investigation to the Commissioner.
183. The Commissioner may require a provider to conduct an independent
investigation in circumstances including where there is a demonstrable lack of
capacity on the part of a registered provider to conduct an investigation, or if it
considers that an internal investigation is not appropriate or is not being progressed.
Such an independent investigation would need to be by an appropriately qualified
person and include findings and recommendations.
184. New subsection 73Z(4) provides a description of some incidents which are
'reportable incidents' including where they are alleged to have occurred in
connection with the provision of supports. These are:
the death of a person with disability;
serious injury of a person with disability;
abuse or neglect of a person with disability;
unlawful sexual or physical contact with, or assault of, a person with disability;
sexual misconduct committed against, or in the presence of, a person with,
including grooming of the participant for sexual activity;
the use of a restrictive practice in relation to a person with disability, other than
where the use is in accordance with an authorisation (however described) of a
State or Territory in relation to the person.
185. Authorisation in this context encompasses the range of processes in relevant
State or Territory legislation or policy and obtaining informed consent of a participant
and/or their guardian; approval from a guardianship board or administrative tribunal;
and seeking approval from an authorised State or Territory officer.
32
186. New subsection 73Z(5) provides that, despite the definition provided in
subsection (4) the NDIS rules may provide that certain specified acts, omissions or
events are, or are not, reportable incidents. This rule making power will allow
changes to be made to categories of incidents that are reportable in response to
emerging areas of risk.
Division 7 - Protection of disclosers
187. New Division 7 of Part 3A establishes robust protections to ensure disclosers
are supported and protected in making disclosures about NDIS providers. These
protections are intended to promote the integrity and accountability of NDIS
providers in providing quality and safe supports or services to people with disability.
188. A discloser for the purpose of these protections is broadly defined to cover
employees, contractors, committee members, partners and in any case a person
with disability receiving a support or service from the NDIS provider or a nominee,
family member, carer or significant other of that person. A person will qualify for
protection in relation to a disclosure whether the disclosure is made to the
Commission, the Agency, the NDIS provider key personnel or partner provided it is a
qualifying disclosure as set out in new section 73ZA.
189. Detriment in this Division comprises any disadvantage including, but not limited
to, dismissal, injury, alteration of an employee's position to their detriment and
discrimination between an employee and other employees of the same NDIS
provider. Detriment also includes, but is not limited to, any alteration or withdrawal of
supports or services to a person's detriment, altering the ability for a nominee, carer,
family member or significant other from contacting the participant or removing that
person from receiving information that they would have otherwise been entitled to
receive.
New section 73ZA - Disclosures qualifying for protection
190. New section 73ZA, subsection (1) identifies who the protection applies to in
relation to disclosure of information by a person (the discloser) in relation to an NDIS
provider. Any of the following people are a discloser in relation to an NDIS provider
for the purposes of attracting the protections:
if the NDIS provider is a body corporate--an officer or employee of the body
corporate, or a person who has a contract for the supply of goods or services
to, or on behalf of, the body corporate;
if the NDIS provider is an unincorporated association--a member of the
committee of management or an employee of the association, or a person who
has a contract for the supply of goods or services to, or on behalf of, the
association;
if the NDIS provider is a partnership--a partner in or an employee of the
partnership, or a person who has a contract for the supply of goods or services
to, or on behalf of, the partnership;
33
in any case--a person with disability who is receiving a support or service from
the NDIS provider, or a nominee, family member, carer or significant other of
that person.
191. New subsection 73ZA (2) sets out the circumstances that must be met for the
discloser to qualify for protection under this Division. The disclosure must be made
to the Commissioner, the Agency, or a member of the key personnel of an NDIS
provider. The discloser must:
prior to making the disclosure, inform the person to whom the disclosure is
made of the discloser's name;
have reasonable grounds to suspect that the information indicates that an NDIS
provider has, or may have, contravened a provision of the Act, for example,
obligations under the NDIS Code of Conduct; and
make the disclosure in good faith.
192. New subsection 73ZA (3) provides that the word officer has the same meaning
as it has in the Corporations Act 2001.
New section 73ZB - Disclosure that qualifies for protection not actionable etc.
193. New subsection 73ZB(1) provides that where a person makes a disclosure that
qualifies for protection, that person is not subject to any civil or criminal liability for
making the disclosure and no contractual or other remedy may be enforced or
exercised against the person on the basis of the disclosure.
The note under this section clarifies that notwithstanding this subsection, a person
may be subject to any civil or criminal liability for conduct that is revealed by the
disclosure.
194. New subsection 73ZB(2) provides, without limiting subsection (1), that the
person has qualified privilege in respect of the of the disclosure and a contract to
which the person is party may not be terminated on the basis that the disclosure
constitutes a breach of the contract.
195. New subsections 73ZB(3) and 73ZB(4) provide an explanation of what
qualified privilege means in the context of defamation proceedings in respect of a
disclosure.
196. New subsection 73ZB(5) clarifies that this section does not limit or affect any
right, privilege or immunity that a person has, apart from this section, as a defendant
in proceedings, or in an action for defamation.
New section 73ZC - Victimisation prohibited
197. New section 73ZC creates a civil penalty for victimisation. A person
contravenes this subsection if, they actually cause detriment to another person within
the meaning of subsection (1) or they threaten to cause detriment to another person
within the meaning of subsection (2). It is a civil penalty to actual cause detriment or
34
threaten to cause detriment to another person. The penalty is a maximum of 500
penalty units. A penalty unit is prescribed for the purposes of the Crimes Act 1914.
198. New subsection 73ZC (3) clarifies for the purpose of subsection (2) that a threat
may be express or implied, or conditional or unconditional.
199. New subsection 73ZC (4) provides that where civil penalty proceedings are
brought under subsection (2), it is not necessary to prove that the person threatened
actually feared that the threat would be carried out.
New section 73ZD - Right to compensation
200. New section 73ZD makes a person liable to compensate a person who suffers
damage as a result of a contravention of subsections 73ZC(1) or (2).
Division 8 - Compliance and enforcement
201. New Division 8 establishes a compliance and enforcement framework for
monitoring compliance with the Act and taking action to enforce compliance. The Bill
triggers the Commonwealth's standard suite of provisions in relation to monitoring
and investigation powers, as well as enforcement provisions through the use of civil
penalties, infringement notices, enforceable undertakings and injunctions contained
in the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers
Act). The Regulatory Powers Act is intended to simplify and streamline
Commonwealth regulatory powers, provide regulatory agencies with the opportunity
to use more uniform powers, and increase legal certainty for business and
individuals who are subject to those powers.
202. NDIS providers are also subject to general law obligations and universal
complaints and redress mechanisms which continue to be available for people with
disability, including police, fair trading bodies, professional and industry bodies,
consumer protection laws and other regulatory systems. Disability services
delivered through other systems, such as health, education and justice, will be
covered by the enforcement arrangements for those systems.
203. The Commission has a range of enforcement and compliance powers to use in
response to information it receives, including through complaints mechanisms and
incident notifications. The regulatory responses available to support the
Commissioner's function are illustrated by the following regulatory pyramid.
35
204. The Commission will use a proportionate, flexible and consistent approach to
enforcement and compliance, with the highest level of response representing the
most serious and intrusive intervention such as civil penalties and ban orders
through to lower level interventions including education and inspection powers to
achieve compliance.
New section 73ZE - Monitoring powers
205. This section triggers part 2 of the Regulatory Powers Act, which creates a
framework that gives inspectors appointed by the Commissioner monitoring powers.
Those monitoring powers are to be used to monitor compliance with new Part 3A of
the Act regarding NDIS providers. Monitoring powers include the powers of entry
and inspection.
206. The monitoring powers can also be used to determine whether information,
given to the Commission in compliance with, or in purported compliance with the
new Part 3A, is correct.
207. Certain powers, duties and functions under the Regulatory Powers Act are to
be performed by specific persons and bodies. New subsection 73ZE(3) sets out who
can exercise certain powers under Part 2 of the Regulatory Powers Act. These are:
an inspector appointed by the Commissioner under the Act who is an
authorised applicant and authorised person;
a magistrate is an issuing officer;
the Commissioner is the relevant chief executive;
36
relevant courts are the Federal Court, the Federal Circuit Court, and a court of
a State or Territory that has jurisdiction in relation to matters under the Act.
208. New subsection 73ZE(4) provides that inspectors may be assisted by other
persons when exercising their powers or performing their functions or duties set out
in part 2 of the Regulatory Powers Act.
New section 73ZF - Investigation powers
209. This section triggers Part 3 of the Regulatory Powers Act, which creates a
framework that gives investigators appointed by the Commissioner investigative
powers. These investigative powers can be used to gather material to determine
whether certain provisions in Part 3A of the Act have been contravened. The
investigative powers can be exercised only in relation to civil penalty provisions, or
any offence against the Crimes Act 1914 or the Criminal Code that relates to this
Part. Investigative powers include the powers of entry, search and seizure.
210. Certain powers, duties and functions under the Regulatory Powers Act are to
be performed by specific persons and bodies. Subsection (2) sets out who can
exercise certain powers under Part 3 of the Regulatory Powers Act. These are:
an investigator appointed by the Commissioner under the Act who is an
authorised applicant and authorised person;
a magistrate is an issuing officer;
the Commissioner is the relevant chief executive;
relevant courts are the Federal Court, the Federal Circuit Court, and a court of
a State or Territory that has jurisdiction in relation to matters arising under the
Act.
211. New subsection 73ZF(3) provides that investigators may be assisted by other
persons when exercising their powers or performing functions or duties set out in
Part 3 of the Regulatory Powers Act.
New section 73ZG - Use of equipment to examine or process things
212. This section applies where an investigator is exercising their investigatory
powers pursuant to Part 3 of the Regulatory Powers Act. In particular, this section
applies where an investigator has entered a premises under an investigation warrant
obtained for the purposes of the Act.
213. New subsection 73ZG(2) allows an investigator, or a person assisting, to bring
any equipment into premises, where that equipment is reasonably necessary to
allow the investigator to examine or process a thing to determine whether it should
be seized.
214. New subsection 73ZG(3) allows an investigator, or a person assisting, to move
things to another place to examine or process the thing to determine whether it
37
should be seized. Things may only be moved to another place pursuant to this
subsection if the occupier of the premises consents in writing, or if it would be
sufficiently more practicable to move the thing and the investigator suspects on
reasonable grounds that the thing contains or constitutes evidential material.
215. When considering whether to move a thing for examination or processing, an
investigator should have regard to the timeliness and cost of examining the thing at
another place, and the availability of expert assistance at another place. It is
generally practical and appropriate to move equipment where it will be faster or less
costly to search for evidentiary material at an alternative location.
216. For example, where there may be a significant amount of data contained on
specialist equipment, searching through all of the material or data while at the
premises may not be practicable or efficient. Further, it may require a person with
specialist expertise. This is particularly the case in relation to computers and other
electronic equipment which may have large amounts of data that are protected by
passwords or other forms of encryption.
217. New subsection 73ZG(4) provides that if a thing is moved to another place for
the purpose of examination or processing pursuant to subsection (3), the investigator
must (if it is practicable to do so):
inform the occupier of the premises of the time and place at which the
examination or processing of a thing will be carried out; and
allow the occupier of the premises or his or her representative to be present
during the examination or processing.
218. New subsection 73ZG(5) provides that an investigator does not need to comply
with subsection (4) if the investigator believes on reasonable grounds that complying
with subsection (4) would endanger the safety or a person; or prejudice an
investigation or prosecution.
219. New subsections 73ZG(6)-(9) set out the time limits on moving things to
another place for examination or processing. Specifically:
A thing may not be moved to another place for longer than 14 days.
If an investigator believes on reasonable grounds that a thing cannot be
examined or processed within that 14 day timeframe (or an extension of time
that has previously been granted), an investigator may apply to a magistrate for
an extension of time.
An extension of time cannot exceed 7 days, however an investigator may apply
for as many extensions as are necessary.
The investigator must give notice of the application for an extension of time to
the occupier of the premises. The occupier is entitled to be heard in relation to
the application for an extension of time before the extension is granted.
38
220. New subsection 73ZG(10) allows an investigator, or a person assisting, to
operate any equipment already at premises to examine or operate a thing found at a
premises to determine whether the thing should be seized. Before using such
equipment, an investigator, or person assisting an investigator, must believe on
reasonable grounds that the equipment is suitable for the examination or processing,
and the examination or processing can be carried out without damage to the
equipment or thing.
New section 73ZH- Use of electronic equipment at other place
221. This section applies where an investigator is exercising investigatory powers
pursuant to Part 3 of the Regulatory Powers Act. In particular, this section applies
where an investigator has entered premises under an investigation warrant obtained
for the purposes of the Act and he or she has moved electronic equipment to another
place pursuant to new subsection 73ZG(3).
222. New subsection 73ZH(2) provides that if electronic equipment is moved from
the premises to another place, an investigator or a person assisting may operate the
equipment to access data.
223. New subsection 73ZH(3) provides that if an investigator or a person assisting
suspects on reasonable grounds that electronic equipment may hold data that
constitutes evidential material, that person may copy any or all of the data accessed
by operating the electronic equipment. The data can be copied to a disk, tape or
other associated device.
224. New subsection 73ZH(4) provides that if data has been copied pursuant to
subsection (3), and the Commissioner is satisfied that the data is not required (or is
no longer required) for the purposes of the Act, or for other judicial or administrative
proceedings, then the Commissioner must arrange for the removal of the data from
any device in the control of the Commission, and the destruction of any other
reproduction of the data in the control of the Commission (for example, printed
copies of data).
225. New subsection 73ZH(5) provides that if an investigator, or person assisting,
finds that evidential material is accessible by accessing electronic equipment, he or
she may:
seize the equipment and any disk, tape or other associated device, or
if the material can be put in documentary form - put the material in that form
and seize the documents so produced.
226. New subsection 73ZH(6) provides that the seizure of electronic equipment
pursuant to new subsection 73ZH(5)(a) should be a 'last resort', and that electronic
equipment can only be seized if it is not practicable to copy the data as provided for
in subsection (3), or to put the material in documentary form as provided for in
subsection (5)(b). Equipment can also be seized if possession of the equipment by
the occupier of the premises could constitute an offence.
39
New section 73ZI - Person with knowledge of a computer or a computer system to
assist access etc.
227. This section applies where an investigator is exercising their investigatory
powers pursuant to Part 3 of the Regulatory Powers Act. In particular, this section
applies where an investigator has entered a premises under an investigation warrant
obtained for the purposes of the Act.
228. The purpose of this section is to ensure the integrity of and access to
evidentiary material stored on electronic equipment, particularly where access has
been limited by complex security measures. Developments in technology allow
electronic equipment to store large amounts of data and to have complex security
measures in place for information. Electronic equipment can be programmed to
delete or alter data when any attempt to override the security measure is employed.
This section provides for an order requiring a specified person to provide relevant
information or to assist an investigator to access data without erasing or altering it.
229. Subsection 73ZI(2) provides that an investigator may apply to a magistrate for
an order requiring a specified person to provide any information or assistance that is
reasonable and necessary to allow an investigator or person assisting to:
access data held in, or accessible from, a computer or data storage device that
is on the premises, has been moved pursuant to new subsection 73ZG(3), or
has been seized;
copy data held in, or accessible from, a computer or data storage device to
another data storage device;
convert into documentary form, or another form that is understandable and
clear to an investigator or person assisting any data held on a computer or data
storage device.
230. New subsection 73ZI(3) sets out the criteria that a magistrate must consider in
issuing an order. The magistrate must be satisfied that there are reasonable
grounds for suspecting that evidential material is held on, or is accessible from, the
computer of data storage device.
231. New subsection 73ZI(3) sets out the criteria that a magistrate must consider in
issuing an order. The magistrate must be satisfied that there are reasonable
grounds for suspecting that evidential material is held on, or is accessible from, the
computer or data storage device.
232. The magistrate must also be satisfied that a specified person is one or more of
the following:
reasonably suspected of having committed the offence or contravened the civil
penalty provision stated in the relevant warrant;
the owner or lessee of the computer or device;
40
an employee of the owner or lessee of the computer or device;
a person engaged under a contract for services by the owner or lessee of the
computer or device;
a person who uses or has used the computer or device; or
a person who is or was a system administrator for the system including the
computer or device.
233. A specified person must also have relevant knowledge of one or both of the
following:
the computer or device or a computer network of which the computer or device
forms or formed a part; or
measures applied to protect data held in, or accessible from, the computer or
device.
234. New subsection 73ZI(4) provides that if an order has been made in relation to a
computer or data storage device that is subsequently seized, that order is no longer
in effect on or after the seizure. This means that an investigator cannot rely on an
order for a specified person to provide information or to assist with accessing data
from the seized item if the order was issued before the seizure. A new application
for another order under this section may be made after the seizure.
235. New subsection 73ZI(5) provides that where the computer or data storage
device is not on the premises, the order must specify the time and place that the
specified person must provide the information or assistance, as well as any other
conditions that the specified person must comply with in providing the information
and assistance.
236. New subsection 73ZI(6) creates an offence where a person fails to comply with
an order under this section, with a penalty of imprisonment up to 2 years.
New section 73ZJ - Compensation for damage to electronic equipment
237. This section requires the Commonwealth to pay the owner of electronic
equipment, or the user of data or programs, reasonable compensation where
electronic equipment has been operated pursuant to section 73ZG or 73ZH and:
damage is caused to the equipment, or
the data recorded on the equipment is damaged; or
programs associated with the use of equipment, or with the use of the data, are
damaged or corrupted.
238. This section only applies where the damage or corruption occurs because
insufficient care was exercised in selecting the person who was to operate the
41
equipment, or insufficient care was exercised by the person operating the
equipment.
239. If the Commonwealth and the owner or user cannot agree on 'reasonable
compensation' then the owner or user may institute proceedings in the Federal
Court, the Federal Circuit Court, or a court of a State or Territory that has jurisdiction
in relation to the matter to determine the amount of compensation to be paid.
240. In determining the amount of compensation payable, regard is to be had to
whether the occupier of the premises, or the occupier's employees or agents (if they
were available at the time) provided any appropriate warning or guidance on the
operation of the equipment.
New section 73ZK - Civil penalty provisions
241. New section 73ZK provides that each civil penalty provision of the Bill is
enforceable under Part 4 of the Regulatory Powers Act. The section provides that
the Commissioner is an 'authorised applicant' for the purposes of Part 4 of the
Regulatory Powers Act and for applying to a relevant court to obtain an order for a
person to pay a pecuniary penalty for the contravention of a civil penalty provision.
242. New section 73ZK also aligns provisions and definitions with corresponding
provisions and definitions of the Regulatory Powers Act in relation to relevant courts
for the purposes of new Part 3A of the Act.
243. New section 73ZK provides that despite the operation of subsection 205(2) of
the Act, the Crown is liable to pay a pecuniary penalty under a civil penalty order
under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil
penalty provisions of the Act. This is to ensure nationally consistent quality and
safeguards arrangements will apply to all NDIS providers, including where supports
and services are delivered by State, Territory or Commonwealth Governments.
New section 73ZL - Infringement notices
244. New section 73ZL provides that a civil penalty in Part 3A is subject to an
infringement notice under Part 5 of the Regulatory Powers Act. Consistent with
Commonwealth guidelines for infringement notice schemes and the Regulatory
Powers Act, infringement notices may be used to deal with less serious and less
factually complex contraventions, where initiating court proceedings would be
disproportionately costly (see Chapter 6 of the Australian Government Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers).
245. For the purposes of Part 5 of the Regulatory Powers Act, the Commissioner is
an infringement officer and the relevant chief executive for these provisions.
42
Modifications of Part 5 of the Regulatory Powers Act
246. New section 73ZL provides that despite the operation of subsection 205(2) of
the Act, the Crown may be liable to be given an infringement notice under Part 5 of
the Regulatory Powers Act, as that Part applies in relation to new Part 3A of the Act.
New section 73ZM - Compliance notices
247. New section 73ZM enables the Commissioner to issue compliance notices to
an NDIS provider if the Commissioner is satisfied that the NDIS provider is not
complying with the Act or is aware of information that suggests the NDIS provider
may not be complying with the Act.
248. New subsection 73ZM(2) sets out the requirements that compliance notices
must contain. These include the name of provider; details of the non-compliance or
possible non-compliance; action the provider must take or refrain from taking
(including being required to provide evidence of this fact); and any period within
which the provider must take, or refrain from taking the specified action.
249. Failure to comply with a compliance notice is a contravention which attracts a
maximum civil penalty of 60 penalty units (subsection 73ZM(3)). It may also result in
a provider's registration being suspended or revoked or in the case of an
unregistered NDIS provider, may result in a banning order (although the issue of a
compliance notice is not a prerequisite to those enforcement actions). These
matters must also be set out in the compliance notice (73ZM (2)(f) and (g)).
250. The Commissioner may vary or revoke a compliance order given to a provider
where the Commissioner considers that it is appropriate in all of the circumstances
to do so (subsection 73ZM(4)). In deciding whether to vary or revoke a compliance
notice, subsection 73ZM(5) provides that the Commissioner must consider any
submissions that are received from the provider before the end of the period
specified in the compliance notice. A decision to give a compliance notice to an
NDIS provider is a reviewable decision for the purposes of section 99 of the Act.
New section 73ZN - Banning orders
NDIS providers
251. New section 73ZN allows the Commissioner to make an order (a banning
order) prohibiting or restricting specified activities by an NDIS provider.
252. In relation to a registered NDIS provider, a banning order must be preceded by
a decision to revoke the registration of a provider (subsection 73ZN(1)(a)) under new
section 73P. Where a contravention of the Act is of such a nature as to warrant a
banning order, the Commissioner may revoke the registration of a provider and apply
a banning order to the provider in parallel.
Persons employed or otherwise engaged by NDIS providers
253. A banning order may also be made prohibiting or restricting a person who is
employed or otherwise engaged by an NDIS provider from engaging in specified
43
activities. The definition of otherwise engaged makes it clear that this includes
where a person is engaged on a voluntary basis.
254. In considering whether the issue a banning order, new subsections
73ZN(1)(b)-(d) and (2)(a)-(c) require that the Commissioner reasonably believes one
or more of the following has occurred:
a person has contravened, is contravening, or is likely to contravene, the Act; or
the person has been involved in, or is likely to become involved in, a
contravention of the Act by another person; or
the person is not suitable to provide supports or services to people with
disability; or
there is an immediate danger to the health, safety or wellbeing of a person if
the person continues to be an NDIS provider; or
the person is convicted of an offence involving fraud or dishonesty; or
the person becomes an insolvent under administration.
255. The note at subsection 73ZN(1) explains that where a person is subject to a
banning order, that person cannot be registered as a registered NDIS provider in a
way that is inconsistent with the banning order. A banning order may apply generally
to prevent a person from offering any NDIS supports or services or may be limited to
a class of supports or services, or to particular people. A person subject to a
banning order with limited application may be able to continue to be registered or
apply to be registered for another class of supports or services or continue to provide
registered supports or services to other people.
256. New subsection 73ZN(4) clarifies that a banning cannot prohibit or restrict
activities that a registered NDIS provider is registered to provide under new section
73E. This highlights the order of regulatory response to non-compliance with the
Act, in that, the Commissioner must revoke the person's registration before issuing a
banning order. However, as noted above, the Commissioner may issue a banning
order at the same time as a revoking a person's registration.
257. New subsection 73ZN(5) provides that a banning order takes effect from the
day specified in the order. Subsection 73ZN(6) provides that a banning order is not
a legislative instrument within the meaning of subsection 8(1) of the Legislation Act
2003 because it does not determine the law but sets out administrative decisions.
258. New subsection 73ZN(7) provides that a banning order may only be made, in
accordance with natural justice principles, where the person has been given an
opportunity to make submissions to the Commissioner on the matter. Subsection (8)
provides the limited circumstances in which subsection (7) does not apply.
259. New subsection 73ZN(9) provides that the Commissioner must give the
banning order to the person against whom the order is made, including a statement
44
of reasons for the order and where the order is made against a person who is
employed or otherwise engaged by an NDIS provider - notify the NDIS provider of
the order as soon as possible.
260. A decision to make a banning order is a reviewable decision for the purposes of
section 99 of the Act.
261. Failure to comply with a banning order is a contravention which carries a
maximum civil penalty of 1,000 penalty units (subsection 73ZN(10)).
262. Banning orders are the most serious regulatory response to prevent a person
from providing any supports or services in the NDIS market. It is intended to apply to
a person employed or otherwise engaged by an NDIS provider in circumstances
where there are no other regulatory options available to the Commissioner or other
regulators, to protect and prevent people with disability from experiencing harm
arising from poor quality or unsafe supports or services provided under the NDIS.
The civil penalty in relation to this provision is therefore substantial to indicate the
serious nature of non-compliance with a banning order.
New section 73ZO - Variation or revocation of banning orders
263. New section 73ZO allows the Commissioner to vary or revoke a banning order,
in writing to the person to whom the order applies, where the Commissioner is
satisfied that it is appropriate to do so. Subsection 73ZO(2) provides that the
Commissioner may vary or revoke a banning order on his or her own initiative or on
application by the person against whom the order was made.
264. Subsection 73ZO(3) provides that an application to vary or revoke a banning
order must be in writing, in the form (if any) approved in writing by the
Commissioner; and include any information and documents required by the
Commissioner. If the Commissioner varies a banning order they must give the
person a statement of reasons for the variation, where this is requested by the
person to whom the banning order applies. If the Commissioner proposes not to
vary or revoke a banning order in accordance with an application lodged under
subsection 73ZO(2)(b), the Commissioner must give the person an opportunity to
make a submission to the Commissioner on the matter.
265. New subsection 73ZO(6) provides that the Commissioner must include in the
written notice a statement of reasons for the variation or revocation of the order and
if the variation or revocation relates to a person who is employed or otherwise
engaged by an NDIS provider - notify the NDIS provider as soon as possible.
266. A decision to vary, or to refuse to vary or revoke, a banning order is a
reviewable decision for the purposes of section 99 of the Act.
267. New subsection 73ZO(7) provides that the variation or revocation of an order
takes effect from the day specified in the order. Subsection 73ZO(8) provides that a
variation or revocation of an order is not a legislative instrument within the meaning
of subsection 8(1) of the Legislation Act 2003 because it does not determine the law
but set out administrative decisions.
45
New section 73ZP- Enforceable undertakings
268. New section 73ZP applies Part 6 of the Regulatory Powers Act which creates a
framework for accepting and enforcing undertakings relating to compliance with
provisions of the Act.
269. New section 73ZP provides that the Commissioner is an authorised person for
the purposes of accepting an undertaking under Part 6 of the Regulatory Powers
Act. A relevant court for the purposes of exercising powers under Part 6 of the
Regulatory Powers Act is the Federal Court, the Federal Circuit Court or a court of a
State or Territory that has jurisdiction in relation to matters arising under the Act.
270. New section 73ZP may be used to secure compliance with the Act in lieu of civil
proceedings. A person may offer an enforceable undertaking to demonstrate
compliance with the Act and, make commitments which promote high quality and
safe supports and services provided under the NDIS.
Modifications of Part 6 of the Regulatory Powers Act
271. New subsection 73ZP(4) broadens the types of undertakings that can be
accepted by the Commissioner to include the provision of compensation for loss or
damage as a result of a contravention or alleged contravention of the Act. For
example, this may be offered by an NDIS provider in response to a complaint or
incident which resulted in financial loss to a person in order to resolve a complaint or
incident.
272. Pursuant to section 114 of the Regulatory Powers Act, the Commissioner may
accept any of the following undertakings:
a written undertaking given by a person that the person will, in order to comply
with a provision enforceable under Part 3A, take specified action;
a written undertaking given by a person that the person will, in order to comply
with a provision enforceable under Part 3A, refrain from taking specified action;
a written undertaking given by a person that the person will take specified
action directed towards ensuring that the person does not contravene a
provision enforceable under Part 3A, or is unlikely to contravene such a
provision, in the future.
273. In addition, subsection 73ZP provides for the Commissioner to be able to
accept an undertaking given by a person in connection with any matter relating to a
contravention or alleged contravention by the person of the Act. A provider may for
example, offer to undertake activities which contribute more broadly to the functions
of the Commissioner, people with disability and the NDIS market.
New section 73ZQ - Injunctions
274. New section 73ZQ triggers Part 7 of the Regulatory Powers Act which creates a
framework for using injunctions to enforce provisions.
46
275. New section 73ZQ provides that the Commissioner is an authorised person for
the purposes of Part 7 of the Regulatory Powers Act and aligns with corresponding
provisions and definitions of the Regulatory Powers Act in relation to relevant courts
for the purposes of Part 3A of the NDIS Act.
Modifications of Part 7 of the Regulatory Powers Act
276. New subsection 73ZQ clarifies that, despite the operation of section 121 of the
Regulatory Powers Act, a relevant court may grant an injunction by consent of all of
the parties to proceedings brought under Part 7 of the Regulatory Powers Act. This
aims to reduce the need for an application to be made to a court in each instance.
New section 73ZR - Appointment of inspectors and investigators
277. New subsection 73ZR(1) allows the Commission to appoint a member of staff
of the Commission, a person assisting the Commission, or a person performing
services for the Commonwealth under a contract with the Commonwealth as an
inspector, an investigator or both for the purposes of this Part of the Act.
278. New subsection 73ZR(2) sets out the criteria which the Commissioner must be
satisfied about prior to appointing a person under subsection (1), including 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. Subsection 73ZR(3)
provides that a person appointed under this section, in exercising powers as such,
must comply with any directions of the Commissioner.
279. New subsection 73ZR(4) provides that where a direction is given in writing
under subsection (3) that direction is not a legislative instrument within the meaning
of subsection 8(1) of the Legislation Act 2003 because it does not determine the law
but sets out administrative decisions.
Division 9 - NDIS Provider Register
New section 73ZS - NDIS Provider Register
280. New section 73ZS provides that the Commission must establish and maintain a
register for the purposes of the Act (the NDIS Provider Register). Subsection
73ZS(2) provides for the Register to be kept in any form that the Commissioner
considers appropriate, to allow for the flexibility needed where such a register has
not been created or used previously and to allow this register to adapt to the needs
of the regulator over time.
281. New subsection 73ZS(3) provides an exhaustive list of what must be included
for each person who is a registered provider on the Register held by the Commission
under subsection (1), including any other matter prescribed by the NDIS Rules for
the purposes of this paragraph.
47
282. New subsection 73ZS(4) provides an exhaustive list of what may be included in
relation to an NDIS provider (other than a registered NDIS provider), including any
other matter prescribed by the NDIS rules for the purposes of this paragraph.
283. New subsection 73ZS(5) provides an exhaustive list of what may be included
on the Register in relation to a person who was an NDIS provider, including any
other matter prescribed by the NDIS rules for the purposes of this paragraph.
284. New subsection 73ZS(6) provides that the Commissioner may include other
information on the Register if the Commissioner is satisfied that information is
relevant to the provision of supports or services to people with disability.
285. New subsection 73ZS(7) provides for the NDIS rules to make provision for and
in relation to the correction of entries in the Register, the publication of the Register
in whole or part, or of specified information entered on to the Register and any other
matter relating to the administration or operation of the Register.
286. It is necessary to enable a high level of flexibility in relation to the NDIS
Register to support the exercise of choice and control by people with disability in
response to the emerging NDIS market and manage protected information.
287. Through subsection 73ZS(7) the NDIS rules may make provision for the
publication of the Register in whole or part, or of specified information entered on to
the Register to manage protected information appropriately.
288. The types of information that may be published on the NDIS Provider Register
may include the following:
whether a provider of supports or services has been subject to any
enforcement action or sanction by the commission, for example whether a
provider is subject to a compliance notice, enforceable undertakings or a
banning order;
a service provider's performance;
a service provider's compliance with legislative requirements;
any investigation that results in a compliance activity, for example, education;
a list of approved quality auditors;
a list of registered providers, for example, registered behaviour support
practitioners.
Item 49 - Subparagraph 82(1)(b)(ii)
289. This item amends subparagraph 82(1)(b)(ii) of the Act to insert 'Agency' after
'to an' to make it clear that this subparagraph relates to an officer of the Agency and
not the Commission.
48
Item 50 - Section 99
290. This item repeals section 99 of the Act and inserts a new section to include
information relevant to reviewable decisions made by the Commissioner and a
description of reviewable decisions and the relevant decision-maker for both the
Commission and the Agency.
Item 51 - Subsection 100(1)
Item 52 - Subsection 100(2)
Item 53 - Subsections 100(3) and (5)
Item 54 - Paragraph 100(5)(c)
Item 55 - Subsections 100(7) and (8)
Item 56 - Subsection 100 (9)
291. These items make technical amendments to section 100 of the Act relating to
the process for the review of reviewable decisions and extending the operation of
section 100 to the Commissioner.
Item 57 - Subsection 102(1)
292. This item amends subsection 102(1) of the Act by omitting the words 'the CEO'
(wherever occurring) and substituting it with the words 'the decision-maker' to extend
the subsection to include both the Commissioner and CEO as decision-makers
under the Act.
Item 58 - After paragraph 144(3)(b)
293. This item inserts, after paragraph 144 (3)(b), a new subsection (ba) which
clarifies that the Advisory Council must not provide advice that relates to 'the
registration of a person or entity as a registered NDIS provider, or the variation,
suspension or revocation of that registration'.
Item 59 - Paragraph 144(3)(c)
294. This item amends paragraph 144(3)(c) of the Act to extend the paragraph to the
Commission by inserting the words 'or the Commission' after 'the Agency'.
Item 60 - After Chapter 6
295. This item inserts new Chapter 6A which establishes the NDIS Quality and
Safeguarding Commission.
49
Chapter 6A - NDIS Quality and Safeguards Commission
Part 1- Commission establishment and functions
New section 181A - Establishment of the Commission
296. New section 181A establishes the National Disability Insurance Scheme Quality
and Safeguards Commission. This new section establishes the Commission as a
listed entity and the NDIS Quality and Safeguards Commissioner as the accountable
authority for the purposes of the Public Governance, Performance and Accountability
Act 2013 (the PGPA Act).
297. Officials of the Commission will be the Commissioner, the staff of the
Commission, persons assisting the Commission and consultants engaged by the
Commissioner.
New section 181B - Commission's functions
298. New section 181B establishes that the function of the Commission is to assist
the Commissioner in the performance of the Commissioner's functions.
Part 2 - NDIS Quality and Safeguards Commissioner
New section 181C - Commissioner
299. New section 181C provides that there is to be a NDIS Quality and Safeguards
Commissioner. The Productivity Commission in the Caring for Older Australians
Report argued that the creation of a single regulatory body encompassing
registration and complaints enables 'responsive regulation' wherein regulatory
responses can move up and down the regulatory pyramid quickly and easily as
required by different cases and changing circumstances (pages 401, 402 and 415).
New section 181D - Commissioner's functions and powers
300. Under new section 181D the Commissioner will be responsible for the
leadership and management of the Commission and for implementing the
Commission's overall strategic direction. Consistent with the Framework:
an NDIS Registrar will be responsible for managing the Commissioner's
registration function under new section 181F which includes reportable
incidents as a condition of registration;
a Complaints Commissioner will be responsible for managing the
Commissioner's complaints functions under new section 181G and will also
receive reports of incidents;
a Senior Practitioner will be responsible for managing the Commissioner's
behaviour support function under new section 181H.
301. While these office holders will independently manage each of these functions,
the Commissioner will oversee the seamless regulatory regime for the NDIS
50
underpinned by the investigation, enforcement and information powers contained in
this Bill. This is consistent with recommendations of recent inquiries including the
Senate Inquiry which recommended:
'consider[ing] the establishment of a national system for reporting and
investigating and eliminating violence, abuse and neglect of people with a
disability, which ... [is] best implemented through the establishment of a national,
independent, statutory protection watchdog that has broad functions and
powers to protect, investigate and enforce findings related to situations of
violence, abuse and neglect of people with disability'.
302. Consistent with these recommendations, section 181D describes the functions
and powers of the Commissioner which have been split between core functions and
specific functions, all of which must be informed by, and exercised in accordance
with the existing objects and principles of the Act.
303. In addition to the Commissioner's core functions in new section 181E, the
Commissioner has the following specific functions:
the registration and reportable incidents;
the complaints;
the behaviour support;
such other functions that are conferred on the Commissioner by the Act (once
enacted) or any other law of the Commonwealth, such as the Public Service
Act 1999, or the PGPA Act;
anything incidental, or conducive to, the performance of any of the above
functions.
304. New subsection 181D(2) enables the Commissioner, by notifiable instrument,
to make guidelines relating to the performance of any of the above functions.
Notifiable instruments are laws on matters of detail made by the Commissioner
pursuant to this new subsection. Under the Legislation Act 2003 all notifiable
instruments and their compilations must be registered on the Legislation Register.
Unlike legislative instruments, notifiable instruments are not subject to Parliamentary
disallowance and do not automatically sunset 10 years after commencement.
305. New subsection 181D(3) enables the Commissioner to consult and cooperate
with a broad range of organisations and persons in relation to the Commissioner's
functions and the NDIS, including people with disability, organisation or people
representing people with disability, governments and other bodies with an interest in
the supports and services provided under the NDIS. This subsection also explicitly
enables the Commissioner to have regard to the interests and needs of persons
receiving, or eligible to receive, supports or services under the NDIS in relation to the
performance of the Commissioner's functions.
51
306. New subsection 181D(4) provides that the Commissioner must 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;
conduct compliance and enforcement activities in a risk responsive and
proportionate matter; and
support and maintain a diverse and sustainable NDIS market.
307. New subsection 181D(5) provides the Commissioner with a necessary or
convenient power in connection with the performance of his or her functions.
New section 181E - Commissioner's core functions
308. New section 181E sets out the core functions of the Commissioner. The
Commissioner will have the following core functions:
to uphold the rights of, and promote the health, safety and wellbeing of, people
with disability receiving supports or services, including those received under the
NDIS;
to develop a nationally consistent approach to managing quality and
safeguards for people with disability receiving supports or services, including
those received under the NDIS;
to promote the provision of advice, information, education and training to NDIS
providers and people with disability;
to secure compliance with the Act through effective compliance and
enforcement arrangements, including through monitoring and investigation
functions conferred on the Commissioner by Division 8 of Part 3A of Chapter 4;
to promote continuous improvement amongst NDIS providers and the delivery
of progressively higher standards of supports and services to people with
disability;
to develop and oversee the broad policy design for a nationally consistent
framework relating to the screening of workers involved in the provision of
supports and services to people with disability;
to provide advice or recommendations to the Agency or the Board in relation to
the performance of the Agency's functions;
engage in, promote and coordinate the sharing of information to achieve the
objects of the Act;
52
provide NDIS market oversight including by monitoring changes in the NDIS
market which may indicate emerging risk and by monitoring and mitigating the
risks of unplanned service withdrawal.
309. In new section 181E, the Commissioner's role includes:
contributing to Agency provider benchmarking and to provider quality ratings;
monitoring, reviewing and reporting on the effectiveness of the NDIS, including
market trends and the quality of outcomes achieved;
active monitoring of those providers who would be 'hard to replace' if they
ceased trading, including prudential oversight of financial viability; and
forming a national perspective on markets, using data and information
generated by consumers and providers to identify trends in provider practice
and wider market responses that may require action.
310. The NDIS market is the arrangements through which participants use NDIS
funding to obtain goods or services from providers. Mechanisms to provide
information to people with disability about providers and to develop participants' skills
as consumers are part of the NDIS market. NDIS market risks include anything that
might reduce choice and control by people with disability to access goods or services
that support them to live an ordinary life. An effective NDIS market is dependent
upon people with disability being empowered to make informed decisions about high
quality and safe supports and providers being informed about and able to meet the
needs of people with disability.
311. The Commission will work closely with the Agency where its market oversight
function identifies systemic provider risks likely to impact the Agency's market
stewardship role. The Agency's market stewardship role aims to ensure enough
providers are available to meet the support needs of people with disability in
geographic regions and identifies options for market intervention, including 'Provider
of Last Resort' arrangements.
312. The Commissioner's market oversight role will be complementary to the
Agency's stewardship function. The Agency works 'hands-on' with participants and
their families and carers to develop their skills as consumers, and actively intervenes
where necessary to ensure supply (including interventions ranging from market
signalling to bulk purchasing and direct procurement). The Agency uses information
from its engagement with participants, providers and stakeholders to inform this role.
313. The Commissioner, through market oversight, will take a broader perspective
on the market to identify risks and trends in provider practice, particularly where the
provider would be 'hard to replace' if they ceased trading or where unplanned
service withdrawal is likely to cause harm to a participant or group of participants.
The Commissioner will monitor the market for systemic issues, complementing the
Agency's role in monitoring and addressing local and individual market issues.
53
Communication lines between the Commissioner and Agency will be vital and are
supported by the Act.
314. New section 181E also provides for the Commissioner to be responsible for
developing and overseeing broad policy design for a nationally consistent approach
to the screening of workers providing NDIS supports or services which will be jointly
agreed with States and Territories. State and territories will remain responsible for
the operational aspects of worker screening including worker screening units. NDIS
worker screening requirements will be implemented through the registration
functions of the Commissioner which will link to the national policy for NDIS worker
screening. An NDIS provider who applies to be registered will need to engage
workers screened in accordance with the national policy and provide evidence that it
is meeting its registration requirements in regards to screening workers. It is
intended that the design and policy for the screening of workers in the NDIS should
align as much as possible with the recommendations of the Royal Commission into
Institutional Responses to Child Sexual Abuse, Working with Children Checks
Report.
New section 181F - Commissioner's registration and reportable incident functions
315. New section 181F describes the Commissioner's registration which includes
reportable incidents as a condition of registration. It is envisaged that an NDIS
Registrar will be responsible for the following registration and reportable incident
functions:
functions conferred on the Commissioner by Division 2 of Part 3A of Chapter 4
(about registered NDIS providers);
functions conferred on the Commissioner by section 73U (about approved
quality auditors);
monitor registered NDIS providers compliance with their conditions of
registration, including in relation to the screening of workers in accordance with
the NDIS Practice Standards;
provide education, guidance and best practice information to NDIS providers in
relation to compliance matters;
functions relating to the notification and management of reportable incidents
conferred on the Commissioner by the NDIS rules made for the purposes of
73Z;
support registered NDIS providers to develop and implement effective incident
management systems and to build provider capability to prevent and manage
incidents;
collect, correlate, analyse and disseminate information relating to incidents,
including reportable incidents, to identify trends or systemic issues.
54
New section 181G - Commissioner's complaints functions
316. New section 181G sets out the Commissioner's complaints functions. It is
envisaged that a dedicated Complaints Commissioner will be responsible for
receiving complaints and incident reports. The Commissioner's complaints functions
are as described in new section 181G and Division 5 of this Bill and include;
functions relating to the investigation, management, conciliation and resolution
of complaints conferred on the Commissioner by the NDIS rules made for the
purposes of section 73X;
educate people about, and develop resources relating to, best practice
handling of complaints arising out of, or in connection with, the provision of
supports or services by NDIS providers; and matters arising from such
complaints;
build the capability of people with disability to pursue complaints in relation to
the provision of supports and services by NDIS providers which includes
facilitating the complaints process for people with disability and supporting them
to understand their rights;
build NDIS provider capability to develop a culture of learning and innovation to
deliver high quality supports and services, prevent incidents and respond to
complaints;
collect, correlate, analyse and disseminate information relating to complaints
arising out of, or in connection with, the provision of supports or services by
NDIS providers.
317. The collection, correlation and analysis of data will be undertaken to identify
systemic issues to be addressed. This will enable the Commissioner to identify
emerging issues in the NDIS market and coordinate information exchanges and
regulatory responses with other relevant bodies.
New section 181H - Commissioner's behaviour support function
318. New section 181H sets out the behaviour support function of the
Commissioner. It is envisaged that a national Senior Practitioner with appropriate
clinical expertise will be responsible for providing leadership in behaviour support,
and in the reduction and elimination of the use of restrictive practices, by NDIS
providers, including:
building capability in the development of behaviour support through:
o developing and implementing a competency framework for registered
NDIS providers whose registration includes the provision of behaviour
support assessments and developing behaviour support plans; and
o assessing the skills and experience of such providers against the
competency framework; and
55
developing policy and guidance materials in relation to behaviour supports and
the reduction and elimination of the use of restrictive practices by NDIS
providers; and
providing education, training and advice on the use of behaviour supports and
the reduction and elimination of the use of restrictive practices; and
overseeing the use of behaviour support and restrictive practices by;
o monitoring registered NDIS provider compliance with the conditions of
registration relating to behaviour support plans; and
o collecting, analysing and disseminating data and other information
relating to the use of behaviour supports and restrictive practices by
NDIS providers; and
undertaking and publishing research to inform the development and evaluation
of the use of behaviour supports and to develop strategies to encourage the
reduction and elimination of restrictive practices by NDIS providers.
319. The United Nations Committee on the Rights of People with Disabilities
(UNCRPD) has expressed concern about the unregulated use of restrictive practices
and recommended that State parties take immediate steps to end such practices.
Consistent with the UNCRPD, Commonwealth, State and Territory Governments
endorsed the National Framework for Reducing and Eliminating the Use of
Restrictive Practices in the Disability Service Sector in 2014 (the National
Framework).
320. The National Framework outlines high-level guiding principles (such as human
rights and a person-centred approach), and core strategies, including use of data to
inform practice and workforce development. These principles and strategies
underpin the approach taken in the NDIS Quality and Safeguarding Framework and
the new arrangements will align with the commitment of all Australian governments
to reduce and eliminate the use of restrictive practices in disability services and with
Australia's obligations under the UNCRPD.
321. Restrictive practices are defined broadly to mean any practice or intervention
that has the effect of restricting the rights or freedom of movement of a person with
disability. They include the use of seclusion, as well as chemical, mechanical and
physical restraint, psycho-social and environmental restraints, and consequence
driven practices (usually involving withdrawal or activities or items).
322. The functions of the Commissioner in relation to behaviour support will be
implemented through the registration requirements for behaviour support
practitioners and providers implementing or using authorised restrictive practices as
a last resort.
323. The NDIS Practice Standards and the competency framework for behaviour
support practitioners who will be engaged in the development of behaviour support
56
plans will reflect best practice. Positive Behaviour Support is recognised as best
practice in addressing behaviours of concern. The National Framework defines
Positive Behaviour Support as 'the integration of the contemporary ideology of
disability service provision with the clinical framework of applied behaviour analysis.
Positive Behaviour Supports are supported by evidence encompassing strategies
and methods that aim to increase the person's quality of life and reduce challenging
behaviour.'
324. Within the NDIS, a restrictive practice can only be used when it is part of a
behaviour support plan developed by a registered behaviour support practitioner and
authorised by the state or territory in which the participant resides. The Bill provides
for the Commission to mandate that both the behaviour support practitioner
developing the plan and the provider(s) implementing an authorised restrictive
practice be registered with the Commission. Mandating these providers to be
registered with the Commission will ensure that the competence of those involved in
behaviour support are assessed against the Commission's competency framework
and the NDIS Practice Standards. A civil penalty offence will apply if these
categories of supports are delivered by an unregistered provider as well as the
Commissioner's other compliance and enforcement powers. This does not preclude
criminal or civil action that may be taken under State or Territory legislation.
325. A behaviour support practitioner will work with the participant, their family and
carers and their provider(s) to develop a behaviour support plan. A behaviour
support plan may involve the use of one or more restrictive practices that may be
utilised during the delivery of different supports, which may mean multiple providers
use a restrictive practice in connection with a participant's plan. Only registered
providers will be able to use restrictive practices under behaviour support plans.
Authorisation (however described) must be obtained from the relevant state or
territory for the use of any restrictive practice.
326. Authorisation encompasses the range of processes outlined in relevant state
and territory legislation and/or policy, including:
obtaining informed consent from the participant and/or their guardian; or
obtaining approval from a guardianship or administration tribunal; or
seeking approval in line with a State or Territory authorisation process.
327. The Commonwealth, States and Territories will work together with a view to
working towards national consistency in authorisation arrangements over time.
328. It is the intention that conditions of registration will be established under new
section 73H including:
that providers will be required to comply with relevant state or territory
authorisation or consent processes (however described) in relation to the use of
restrictive practices;
the content or format of a behaviour support plan;
57
the need to submit all behaviour support plans that contain a restrictive
practice;
the need to record and report on the use of a restrictive practice; and
the frequency with which a behaviour support plan must be reviewed.
329. All unauthorised or emergency uses of a restrictive practice by providers will be
a reportable incident and must be notified to the Commission. This data will provide
evidence to inform the Commission's policy role to reduce and eliminate the use of
restrictive practices within the NDIS.
330. Any information indicating provider non-compliance with the regulatory
requirements will invoke a regulatory response ranging from education, investigation,
referral to police and sanctions such as suspension or revocation of registration and
civil penalties where there are sufficient concerns about provider competency or
adherence to applicable policies and legislation. Information sharing arrangements
will enable a co-ordinated regulatory response and protection and support for
participants.
331. The Commissioner will provide leadership in behaviour support through
guidance, education and advice to the sector, the Agency, NDIS participants and
their families and carers, with a view to building capability in behaviour support and
reducing and eliminating the use of restrictive practices.
332. To inform and implement this function the Commissioner will work closely with
people with disability, organisations representing people with disability, state and
territory bodies and persons involved in the authorisation arrangements for restrictive
practices.
333. Over time the Commissioner will build up significant information about what is
happening across the nation in terms of the use of restrictive practices in the NDIS
and they will have an important leadership role in implementing behaviour support
approaches that reduce and eliminate restrictive practices.
New section 181J- Charging of fees by Commissioner
334. New section 181J provides that the Commissioner may charge fees for
services provided by the Commission. Should this power be engaged, fees charged
under this provision will contribute to the operating budget of the Commission.
335. The Minister may, by legislative instrument, determine the things that the
Commissioner does in the performance of his or her functions for which he or she
may charge fees and the amount, or a method of working out the amount, of those
fees.
336. Any fees charged must not amount to taxation.
58
New section 181K - Minister may give directions to the Commissioner
337. Consistent with the establishment of an independent statutory body that is
prescribed under the PGPA Act, new section 181K provides for the Minister to give
general directions to the Commissioner about the performance of the
Commissioner's functions and powers.
338. Directions from the Minister must be of a general nature only and cannot, for
example, relate to a decision of the Commissioner in respect of a specific individual
or NDIS provider and must not be inconsistent with the Act. This qualification on the
power of the Minister to give directions is to ensure the independence of the
Commissioner.
339. The Commissioner is required to comply with directions from the Minister,
except where a direction is inconsistent with the Act or relates to the performance of
functions or exercise of powers under the PGPA Act or the Public Service Act 1999.
340. All directions are legislative instruments (in accordance with the Legislation Act
2003) which means that they are subject to Parliamentary and public scrutiny.
Directions are not however, subject to disallowance by the Parliament because of
the operation of section 44 of the Legislation Act 2003, which expressly provides that
Ministerial directions to any person or body are not subject to disallowance. Section
54 of the Legislation Act 2003 also provides that such directions are not subject to
sunsetting.
New section 181L - Appointment of the Commissioner
341. New section 181L provides that the Commissioner will be appointed by the
Minister by written instrument and that he or she will hold office on a full-time basis.
342. The instrument of appointment will specify the period for which the
Commissioner holds office which must not exceed three years. This term is in
keeping with Australian Government policy on the selection of statutory office
holders working in, or in conjunction with, Australian Public Service agencies.
343. The Commissioner may, however, be re-appointed for further terms. This is
permitted under subsection 33AA of the Acts Interpretation Act 1901 that provides
that in any Act, a reference to appointment includes re-appointment.
344. The Commissioner's appointment will not be invalid merely because of a defect
or irregularity in connection with the appointment (for example, if there has been an
error in the paperwork appointing the Commissioner).
New section 181M - Acting appointments
345. New section 181M specifies that the Minister may appoint a person to act as
the Commissioner during a vacancy in the office of Commissioner or when the
Commissioner is absent from duty, overseas or unable to perform the duties of the
office (for whatever reason).
59
346. The acting appointment is to be by written instrument.
347. Sections 20, 33AB and subsection 33A(1) of the Acts Interpretation Act 1901
(which refer to appointments and positions) apply to acting appointments.
New section 181N - Remuneration and allowances
348. New subsection 181N(1) provides that the Commissioner's remuneration is
determined by the Remuneration Tribunal. The Remuneration Tribunal is an
independent statutory body that handles the remuneration of appointees to key
Commonwealth offices. If no such determination is in operation, the Commissioner's
remuneration is determined in accordance with subsection (4)(a) of this provision.
349. New subsection 181N(2) provides that the Commissioner is also to be paid the
allowances that are determined in accordance with subsection (4)(b) of this
provision, in addition to any allowances set by the Remuneration Tribunal.
350. New subsection 181N(3) clarifies that this section has effect subject to the
Remuneration Tribunal Act 1973 (meaning that it should be read in the context of
that Act and the means by which the Remuneration Tribunal sets remuneration).
This is a standard provision included in similar sections in other legislation.
351. New subsection 181N(4) provides that the Minister may, by legislative
instrument:
determine the Commissioner's remuneration for the purposes of subsection (1)
where there is no determination by the Remuneration Tribunal in operation; and
determine any allowances to be paid to the Commissioner.
New section 181P - Leave of absence
352. New section 181P provides that the Remuneration Tribunal determines the
Commissioner's recreation leave entitlements and that the Minister can grant the
Commissioner other types of leave on the terms and conditions decided by the
Minister.
New section 181Q - Outside employment
353. New section 181Q prevents the Commissioner from engaging in paid
employment outside the duties of his or her office without the Minister's approval.
Reasons for such a provision are to minimize the risk of a conflict of interest and to
ensure that the Commissioner focuses on his or her job in leading the Commission,
noting that the position is a full-time one.
60
New section 181R - Other terms and conditions
354. New section 181R provides that to the extent that terms and conditions for the
Commissioner are not covered by the Act, this section enables the Minister to
determine any other terms and conditions in writing.
New section 181S - Resignation
355. New section 181S provides for the Commissioner to resign his or her
appointment and when the resignation takes effect. The Commissioner may resign
by giving written notice to the Minister. The resignation takes effect on the day that
the notice is received by the Minister or on a later date if the Commissioner has
specified a later date in the notice of resignation.
New section 181T - Termination of appointment
356. New section 181T provides for the Minister to terminate the Commissioner's
appointment. The Minister may terminate the appointment of the Commissioner:
for misbehavior; or
if the Commissioner is unable to perform the duties of his or her office because
of physical or mental incapacity; or
becomes bankrupt; or
applies to take the benefit of any law for the relief of bankrupt or insolvent
debtors; or
compounds with his or her creditors; or
makes an assignment of his or her remuneration for the benefit of his or her
creditors; or
is absent, except on leave of absence, for 14 consecutive days or for 28 days in
any 12 months; or
engages, without the Minister's approval, in paid work, outside the duties of his
or her office.
357. The Commissioner may also be terminated if he or she fails to comply with any
requirements of the PGPA Act attaching to the duties of an accountable authority,
such as the duty to disclose relevant interests.
Part 3 - Staff etc. of the Commission
New section 181U - Staff of the Commission
358. New section 181U provides that the staff of the Commission are to be engaged
under the Public Service Act 1999. For the purposes of that Act, the Commissioner
61
and the staff of the Commission together constitute a statutory agency and the
Commissioner is the head of the statutory agency.
New section 181V - Consultants
359. New section 181V provides that the Commissioner may engage consultants to
assist in the performance of the Commissioner's functions. Consultants are to be
engaged on the terms and conditions that the Commissioner determines in
writing. The Commissioner may wish to engage consultants to, for example, work on
matters which would require particular knowledge and expertise.
New section 181W - Persons assisting the Commission
360. New section 181W provides that the Commissioner may also be assisted by
certain officers and employees of any of the following bodies:
Agencies (within the meaning of the Public Service Act 1999);
a State or Territory;
authorities of a State or Territory; or
authorities of the Commonwealth.
361. This allows, for example, State or Territory government employees to be
seconded to work for the Commissioner in connection with the performance of the
Commissioner's functions.
Item 61 - Subsection 183(2)
362. This item amends subsection 183 (2) of the Act to align the new terminology in
relation to officers of the Commission and Agency by inserting the word 'Agency'
after the words 'the first day an'.
Item 62 - Paragraph 188(2)(d)
363. This item amends subsection 188 (2)(d) of the Act to align the new terminology
in relation to officers of the Commission and Agency by omitting the words 'the
officer' and inserting the words 'the Agency officer'.
Item 63 - Subsection 188(4)
364. This item amends subsection 188 (4) of the Act to align the new terminology in
relation to officers of the Commission and Agency by inserting the word 'Agency'
after the word 'specified'.
62
Item 64 - Subsection 188(5)
365. This item amends subsection 188 (5) of the Act to align the new terminology in
relation to officers of the Commission and Agency by inserting the word 'Agency'
after the words 'before an'.
Item 65 - After section 197
366. This item amends the Act by inserting relevant provisions for the method of
notification by the Commissioner.
367. Item 64 inserts new section 197A which is an equivalent provision to section
196 of the Act for the Commissioner in relation to the method of notification by the
Commissioner.
368. Item 64 inserts new section 197B which is a mirror provision to section 197 of
the Act for the Commissioner. It provides that the Commissioner not required to
make a decision where a request or application is not in the approved form or where
documents and information have not been provided.
369. Section 7 of the Act requires the contents of any notice, approved form or
information given to a person with disability to be explained to the maximum extent
possible in the language, mode of communication and terms which that person is
most likely to understand.
Item 66 - Section 201 (heading)
370. This item amends the heading in section 201 of the Act by repealing the
heading and substituting 'Delegation by the Minister to the CEO' to clarify that the
section relates to the CEO and not the Commissioner.
Item 67 - At the end of section 201
371. This item amends section 201 of the Act by adding a new subsection (4) which
provides that the Minister may not delegate the provisions listed in new section 201A
(NDIS Rules for the purposes of the this schedule) to the CEO.
Item 68 - After section 201
372. This item amends the Act by inserting a new section 201A. New section 201A
lists the NDIS rules in relation to which the Minister may delegate his or her rule-
making powers under section 209 to the Commissioner. The NDIS rules that may
be delegated are limited to those that are relevant to the Commissioner's functions.
New subsection 201A(2) provides that when exercising rule making powers under
delegation, the Commissioner must comply with any directions given by the
Minister.
63
Item 69 - Subsection 202(1)
373. This item amends subsection 202(1) of the Act to align the new terminology in
relation to officers of the Commission and Agency by inserting the word 'Agency'
after 'delegate to an'.
Item 70 - Subsection 202(2)
374. This item amends subsection 202(2) of the Act to align the new terminology in
relation to officers of the Commission and Agency by inserting the word 'Agency'
after 'only to an'.
Item 71 - After section 202
375. This item amends the Act by inserting a new section 202A which is equivalent
to section 202 of the Act for the purposes of the Commissioner. This provides that
the Commissioner may delegate to a Commission officer any or all of his or her
powers under the Act, regulations or NDIS rules. New subsection 202A(2) provides
that the Commissioner's powers and functions under Part 2 of Chapter 4 (privacy)
can only be delegated to a member of staff of the Commission.
376. New subsection 202A(3) provides that a person exercising powers or functions
under a delegation must comply with any direction of the Commissioner.
377. This item also amends the Act by inserting a new section 202B which provides
that the Commissioner may only delegate the powers and functions mentioned in
subsection 202B(2) (powers under Division 8 of new Part 3A of Chapter 4, including
powers and incidental powers and functions under the Regulatory Powers Act in
relation to the provisions of the Act) to an SES employee, or an acting SES
employee, in the Commission.
378. New subsection 202B(3) provides that where an SES employee is exercising
powers or performing functions under a delegation under new subsection 202B(1)
they must comply with any directions of the Commissioner.
Item 72 - Subsections 203(1) and (2)
379. This item is a technical amendment to repeal subsections 203(1) and (2) of the
Act and replace them with new subsections that extend the entities to which the Act
applies to the new entities as defined for the purposes of Schedule.
Item 73 - At the end of section 203
380. This item amends section 203 of the Act by adding subsection (6) to apply the
section in relation to a contravention of a civil penalty provision and (7) which
provides that for the purposes of the Act, a change in the composition of a
partnership does not affect the continuity of the partnership.
64
Item 74 - Section 204 (heading)
381. This item amends the heading of section 204 of the Act by repealing the
heading and substituting it for 'Time frames for decision making by CEO' to clarify
that the section refers to the Agency and not the Commission.
Item 75 - At the end of section 205
382. This item amends section 205 of the Act by adding subsection (3) to clarify
that the Crown may be liable to pay a pecuniary penalty under new sections 73ZK
(civil penalty orders) or 73ZL (infringement notices).
Item 76 - At the end of Part 3 of Chapter 7
383. This item amends Part 3 of Chapter 7 of the Act by adding new section 207A
requiring State or Territory agreement to certain delegations under the Act. New
section 207A provides that a power or function under the Act cannot be delegated to
a State or Territory or an officer, as described in this new section, unless there is
written agreement to do so by the relevant Minister of the State or Territory. This
has been included to ensure that the Commonwealth does not impose obligations or
duties on State officials without the consent of the State concerned in line with the
High Court decision in Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
Item 77 - After subsection 209(1)
384. This item amends subsection 209(1) of the Act by inserting subsection (1A) to
clarify that NDIS rules:
may be of a general application or may be limited as provided in the rules; and
may make different provisions in relation to different kinds of providers,
participants, supports, services, circumstances or any other matter.
385. This subsection is not intended to limit subsection 33(3A) of the Acts
Interpretation Act 1901.
Item 78 - Subsection 209(8) (at the end of the cell at table item 2 column headed
'Description')
386. This item amends subsection 209(8) (table item 2) by adding rules to be made
in relation to the functions and powers of the Commission to Category B. Category
B rules require agreement with a host jurisdiction because they relate to an area, law
or program of a host jurisdiction. Those rules now include rules made under:
New section 73H, to the extent that the rules deal with conditions on classes of
registration relating to behaviour support; and
New subsection 73T(1), to the extent that the NDIS Practice Standards deal
with the screening of workers involved in the provision of supports or services
to people with disability under the NDIS.
65
Item 79 - Subsection 209(8) (cell at table item 4, column headed 'Description')
387. This item amends subsection 209(8) (table item 4) by adding rules made in
relation to the functions and powers of the Commission to Category D rules, which
require consultation with each host jurisdiction.
Item 80 - At the end of section 209
388. This item amends section 209 of the Act by adding new subsection (9) which
provides that the NDIS rules may not do the following:
create an offence or civil penalty;
provide for powers of arrest or detention or entry, search or seizure;
impose a tax;
set an amount to be appropriated from the Consolidated Revenue Fund under
an appropriation in the Act;
directly amend the text of the Act.
389. New subsection 209(10) clarifies that NDIS rules that are inconsistent with the
regulations have no effect to the extent of the inconsistency; however NDIS rules are
taken to be consistent with the regulations to the extent that the rules are capable of
operating concurrently with the regulations.
Part 2 - Transitional rules
Item 81 - Transitional rules
390. Item 81 provides for the Minister, by legislative instrument, to make rules to
facilitate the transition of jurisdictions to the new arrangements provided for on the
enactment of this Bill. The rules that can be made under this item are limited to rules
that are transitional in nature (including any savings or applications provisions)
relating to:
the amendments or repeals made by this Schedule; or
the enactment of the Bill.
391. This new item reflects the complexity in relation to the transitional
arrangements for States and Territories into the new quality and safeguards
arrangements. As with the transition to the NDIS, the transition to the new quality
and safeguards arrangements under the Commission will take place over some time.
The detail of how each State and Territory will transition will be subject to bilateral
discussions and agreements to be entered into between the Commonwealth and
each State and Territory.
66
392. Item 81(2) provides that without limiting the transitional rules that can be
made, the rules may make provision in relation to the following matters:
a State or Territory becoming a participating jurisdiction;
the transition of a person or entity from the registration arrangements under the
Part 3 of Chapter 4 of the Act to the registration arrangements overseen by the
Commission; and
the transition from quality and safeguards arrangements under State or
Territory laws to the quality and safeguards arrangements established by the
Bill as in force after the commencement of this item.
393. In practice, for example, the transitional rules may deem providers who are
already registered under Part 3 of Chapter 4 (having satisfied the quality and
safeguards arrangements in the host jurisdiction) to be an NDIS registered provider
under the new arrangements and, once they are registered provide for a period of
time in which they have to comply with any new registration requirements, such as
undergoing an audit.
394. The transitional rules may also be able to make rules for new providers,
providers who are part way through an application for registration, or providers
whose registration is subject to review under State and Territory quality and
safeguards arrangements. Part of the consideration for these providers will be
determining the dates on which they can start to apply to be registered under the
new arrangements. The transitional rules may also, for example, specify staggered
time periods for providers to transition to the new arrangements in a jurisdiction,
depending on the number of providers and the type of nature of the supports
provided.
395. New item 80(3) allows the rules to provide that provisions of Schedule 1 are to
be taken to be modified as set out in the rules and that those provisions will then
have effect as if they were so modified, in order to support transition.
396. Rules made under this item will not directly amend the text of the Act, but
rather the rules may modify the operation of provisions during the transition of
providers in each State and Territory, where it is necessary to facilitate transition.
The modification of the operation of the provisions of the Act to a particular
jurisdiction will be for a specified period of time, during transition only, and are not
intended to modify the operation of the Act more generally.
397. Once an agreement has been entered into with a host jurisdiction to become a
participating jurisdiction, this will form the basis of the transitional rules and
commence the arrangements set out in this Schedule in that jurisdiction.
67
SCHEDULE 2 - NATIONAL DISABILITY INSURANCE SCHEME ACT 2013
REVIEW
Outline
With the agreement of the Disability Reform Council in July 2015, the Minister for
Social Services commissioned Ernst & Young to conduct an independent review of
the National Disability Insurance Scheme Act 2013 (Cth) (the Act) (the Review).
It is a requirement under section 208 of the Act that such a review be undertaken two
years after the commencement of the NDIS. The purpose of the review was to
assess the operation of the Act, as well as to consider whether or not any
amendments can be made to better enable the Government to further the objects
and principles of the Act.
Ernst and Young provided the Minister with a copy of its report in December 2015
and the Minister subsequently provided a copy of the report to the Ministerial Council
and it was tabled in Parliament.
The Review found that there are opportunities to provide greater clarity to the
legislative framework and provided 33 recommendations for consideration.
Recommendations included strengthening the Objects and Principles of the Act,
providing a more detailed definition of Information, Linkages, and Capacity Building
(ILC) within the Act and addressing technical inadequacies of the legislation.
The Minister asked the Ministerial Council to make recommendations in response to
the report and obtain Council of Australian Government's (COAG) response to the
report. Of the 33 recommendations, recommendations 10, 21, 27 were noted;
recommendations 19 and 31 were agreed in principle; and the remainder of the
recommendations were agreed.
Recommendations noted but not implemented
Recommendation 10 concerned the amendment of section 29 of the Act to
include a 'cooling off period', during which a participant's decision to revoke
their participant status. While COAG agreed that there was merit to
implementing a 'cooling off period', a legislative amendment was not regarded
as necessary, given the operational nature of the amendment. Rather, COAG
encouraged the Agency to consider incorporating the recommendation into
guidelines which more appropriately deal with the operational circumstances
and processes of revoking a participant's status.
Recommendation 21 concerned the implementation of the Australian Law
Reform Commission (ALRC) recommendations relating to the NDIS. COAG
considered that the principles suggested by the ALRC are already broadly
established or reflected in the NDIS framework and considered that any
amendments should occur at the same time as other similar legislation, such as
the Social Security (Administration) Act 1999, to ensure consistency of
amendments relating to the ALRC recommendations.
68
Recommendation 27 concerned a recommendation to amend the Act to require
the Principal Member of the IAC to also be a member of the NDIS Board.
COAG agreed with the review findings but noted that the ability to appoint the
Principal Member of the IAC to the NDIS Board is not restricted by the Act, nor
does the Act discourage the practice.
Recommendations agreed in principle but not implemented
Recommendation 19 was that the Act provide greater clarity on the purpose of
Agency registration arrangements during the period leading up to full Scheme.
COAG agreed to review the NDIS (Registered Providers of Supports) Rules
2013 in relation to the recommendation noting the development of the new
quality and safeguards arrangements which will be implemented through
Schedule 1 of the Bill.
Recommendation 31 was to conduct a further review of the operation of the Act
in 2-3 years. While COAG agreed with the recommendation, it recommended
the Disability Reform Council give consideration to an appropriate timeframe for
the review in the context of transition to full scheme. It also noted that
amendments to the Act are not limited to review processes and that
amendments can be undertaken with agreement of the Ministerial Council and
Commonwealth Parliament at any time, as required.
Recommendations implemented by Schedule 2
Schedule 2 of this Bill amends the Act in response to the Review. Amendments
have been made to the principles of the Act to give greater recognition to the unique
role of carers; include people of lesbian, gay, bisexual, transgender and intersex
(LGBTI) status; and clarify that the principles in section 17A of the Act that relate to
participation by people with disability must guide the functions and powers of
Agency.
The amendments also remove moderating language which qualifies the rights of
people with disability and adds new principles to reflect the centrality of people with
disability in the design of the NDIS and the importance of a diverse and sustainable
market for supports in facilitating choice and control.
Amendments to Chapter 2 of the Act are also made to expand on the general
supports that are able to be provided to people with disability. In addition, the
disability requirements for access to the NDIS are amended to clarify how they apply
to people with chronic health conditions whose needs are most appropriately
supported through mainstream service systems such as health.
Further amendments are made to the provisions guiding some administrative
aspects of the NDIS, including providing greater clarity in relation to a participant's
right to have their plan reassessed and the Agency's powers to gather information to
ascertain whether a person may be eligible for support as a participant in the NDIS.
The amendments also strengthen the nominee provisions in the Act and clarify how
a person with lived experience of disability can become a member of the Board of
69
the Agency. Finally, the debt recovery provisions of the Act have been amended to
clarify that providers are able to be paid where they have provided support to a
participant and the participant died before the provider was paid.
Recommendations agreed but not implemented
The following agreed recommendations have not been implemented for the reasons
outlined in the table below:
AGREED RECOMMENDATION Reason
9. Remove section The reviewers suggested the removal of section
24(1)(e) (unless this 24(1)(e) and COAG agreed that this paragraph could
requirement is amended to be removed. However, deleting this paragraph may
support Recommendation have unintended consequences due to the interlinking
8). with paragraph 24(1)(b) (permanence) and new
paragraph 24(1)(f); and the conflict it would create with
the concept that a disability can be permanent but
fluctuating.
11. Amend the legislative This recommendation does not require amendments to
framework to align the the primary NDIS legislation. The approach to
access request process addressing this recommendation was that it be
with bilateral agreements undertaken through amendments of the NDIS
and the phasing rules (Facilitating the Preparation of Participant Plans) Rules
made under section 32A. 2013 as bilateral agreements for transition to full
scheme were finalised and this recommendation has
been addressed.
13. Amend the Supports This recommendation does not require amendments to
for Participants Rules to the Act. This recommendation will be addressed
provide further guidance through amendments to the NDIS (Supports for
on how value for money Participants) Rules 2013, which will seek to clarify
could be determined. guidance on determining value for money.
14. Amend the Supports This recommendation does not require amendments to
for Participants Rules to the Act. This recommendation will be addressed
provide greater guidance through amendments to the NDIS (Supports for
on the matters that may be Participants) Rules 2013, which will seek to clarify
used for the purposes of guidance on whether a support is likely to be beneficial
deciding whether a for a participant.
support will be, or is likely
to be, effective and
beneficial for a participant.
15. Add a statement to This recommendation does not require amendments to
clause 3.4 of the Supports the Act. This recommendation will be addressed
for Participants Rules to through amendments to the NDIS (Supports for
require the CEO to Participants) Rules 2013, which will require the CEO to
consider 'the extent of any consider the extent of any other caring responsibilities
other caring on those providing informal care.
responsibilities'.
70
25. Amend section 118 to The main function of the Agency in relation to ILC will
reflect the functions of the be to provide relevant funding to organisations under
Agency in relation to its section 14 of the Act. No amendments are required to
Information Linkages and section 118 of the Act because subsections 118(g) and
Capacity (ILC) building (h) would cover the Agency's ILC functions.
framework.
33. Consider what, if any, This recommendation does not require amendments to
amendments to the the primary NDIS legislation. The approach to
legislative framework are addressing this recommendation was that it be
required to support the undertaken through amendments to the NDIS rules.
operationalisation of the
bilateral agreements
between the
Commonwealth and the
States and Territories.
Part 1 - Amendments
Item - 1 Subsection 4(2)
Item - 2 Subsection 4(8)
398. These items remove words 'to the extent of their ability' which have the effect of
moderating the language in the general principles guiding actions under the Act in
section 4. Removing the moderating language from the principles reinforces the fact
that people with disability have the same rights as other members of Australian
society, regardless of the extent of their ability or capacity. This is consistent with
recommendation 3 of the Review to amend relevant principles to remove moderating
language (e.g. 'to the extent of their ability' and 'to the full extent of their capacity').
Item - 3 After subsection 4(9)
399. This item amends the Act by inserting a new general principle into section 4,
being that people with disability are central to the NDIS and should therefore be
included in a co-design capacity. The centrality of people with disability and their
inclusion in the NDIS decision-making framework is integral to the NDIS. This is
consistent with recommendation 4 of the Review to add a new principle to section 4
that reflects the concepts of the centrality of people with disability and co-design.
Item - 4 Subsection 4(12)
Item - 5 After subsection 4(12)
400. These items amend the general principles guiding actions under the Act in
section 4. Specifically, the amendments differentiate between the relationship
between a person with a disability and their families and significant others, and the
relationship between a person with a disability and their carers. In doing so, the
amendments recognise and respect the important and unique relationship between
people with disability and their carers. This amendment reflects the Carer
71
Recognition Act 2010 (Cth). This is consistent with recommendation 1 of the Review
to amend principles that directly reference carers so that they align with the
'recognise' and 'respect' terminology of the Carers Recognition Act 2010 (Cth).
Item - 6 Subsection 4(15)
401. This item amends the principle in subsection 4(15) of the Act to directly refer to
a diverse and sustainable market and sector in which innovation, quality, continuous
improvement, contemporary best practice and effectiveness in the provision of those
supports is promoted. This is important to enable people with disability to exercise
their right to choice and control. This is consistent with recommendation 5 of the
Review to add a new principle to section 4, reflecting the importance of a diverse and
sustainable market that provides choice and control and high quality supports to
people with disability.
Item - 7 Paragraph 5(d)
402. This item amends paragraph 5(d) of the Act to reference lesbian, gay, bisexual,
transgender and intersex status. This amendment is consistent with other legislation
such as the Sex Discrimination Act 1984 (Cth) and enhances the section's purpose
of recognising the intersections between disability and other forms of
marginalisation. This is consistent with recommendation 2 of the Review to amend
section 5(d) to reference lesbian, gay, bisexual, transgender and intersex (LGBTI)
status.
Item - 8 Section 8
403. This item amends the simplified outline of the Act in section 8, to insert new
information about the purpose of the NDIS in providing information in relation to
disability and disability supports and services, to build capacity within the community
in connection with people with disability consistent with the amendments made to
section 14 of the Act. This is consistent with recommendation 6 of the Review to
provide greater definition on the Agency's Information Linkages and Capacity
building framework in the legislative framework.
Item - 9 Section 8
404. This item amends the outline of the Act to update the name of the Agency to
the National Disability Insurance Agency and remove reference to 'Scheme Launch
Transition'. This is consistent with recommendation 29 of the Review to amend the
Act to replace 'National Disability Insurance Scheme Launch Transition Agency' with
'National Disability Insurance Agency'.
Item - 10 Section 9 (definition of Agency)
405. This item amends section 9 of the Act to update the name of the National
Disability Insurance Agency consistent with recommendation 29 of the Review.
72
Item - 11 Section 9
Item - 12 Section 9 (definition of review date)
406. These items amend section 9 of the Act as a result of confusion arising from
two types of review referred to under the Act - plan review and review of a decision.
What was formerly called a review of a participant's plan is now called a
reassessment of a participant's plan. These amendments limit the term 'review' to
review of decisions dealt with in Part 6 of Chapter 4 of the Act. The amendments
reflect a change in terminology only and do not change the rights of participants.
This is consistent with recommendation 23 of the Review to amend the legislative
framework to limit the term 'review' to 'review of decisions'.
Item - 13 Paragraph 14(a)
407. This item inserts additional elements to the Agency's power in section 14 of the
Act to provide assistance in the form of funding for persons or entities. These
additions explicitly provide for the Agency to provide funding for services and
supports for the purposes of:
Enabling persons or entities to provide information in relation to disability and
disability supports and services.
Enabling persons or entities to build or provide assistance in building capacity
within the community to make sure mainstream services or community
organisations become more inclusive of people with disability. This includes
capacity building for communities to include people with disability in community
activities through the provision of goods and services.
Enabling persons or entities to assist people with disability to realise their
potential for physical, emotional and intellectual development.
Building the capacity of people with disability as well as their families and
carers to participate in social and economic life
408. These additions are necessary to support the implementation of the Agency's
Information, Linkages and Capacity Building (ILC) strategy, which reflects what were
described as Tier 2 supports in the Productivity Commission's inquiry report on
disability care and support. This is consistent with recommendation 6 of the Review
to provide greater definition on the Agency's Information Linkages and Capacity
building framework in the legislative framework.
Item - 14 Before subsection 17A(1)
Item - 15 At the end of section17A
409. These items insert new subsections into section 17A of the Act which outlines
principles relating to the participation of people with disability. The amendments
clarify that the CEO must have regard to these principles when performing functions
and exercising powers under Chapter 3 of the Act. New subsection 17A(4) provides
73
that the CEO is also required to be guided by the general principles in section 4
when undertaking actions under the Act. This is consistent with recommendation 7
of the Review to clarify the intention of section 17A of the Act (relative to sections 4
and 5 of the Act).
Item - 16 At the end of subsection 24(1)
410. This item inserts new paragraph 24(1)(f) into the list of requirements that the
CEO must take into account in determining whether a person meets the disability
requirements for access to the NDIS. The new paragraph provides an additional
consideration to meet the disability requirements which is reflected in subsection
34(1)(f) in considering reasonable and necessary funding that may be provided to a
participant. In order to meet the disability requirements in section 24 of the Act, the
support that a person is likely to require must be most appropriately funded or
provided through the NDIS and not more appropriately funded or provided through
other mainstream general systems of service delivery or supports such as health or
education.
411. This amendment has been made in response to recommendation 8 of the
Review to provide clarity on how the disability requirements are intended to operate
for people with chronic health conditions. The review found that this could be
achieved through amending the Act by reflecting a similar intent as per existing early
intervention and reasonable and necessary provisions in the Act (sections 25(3) and
34(1)(f) respectively).
412. The Review received feedback that people, especially people with chronic
health conditions, were found to meet the disability requirements in section 24 of the
Act, but they were not eligible to receive reasonable and necessary supports in their
NDIS plans as a result of the requirement at paragraph 34(1)(f) of the Act (that the
supports were most appropriately funded or provided through another universal
service system). The result was that people could become participants, but would
not be eligible to receive supports and confusion resulted in relation to supports
provided or funded through mainstream service systems.
Item - 17 After paragraph 27(c)
413. This item inserts a new paragraph into section 27 of the Act, which gives the
Minister a discretionary power to make NDIS rules prescribing criteria for assessing
whether the support a person is likely to need for their lifetime is most appropriately
funded or provided through the NDIS, or through other general systems of service
delivery or support services. This is consistent with recommendation 8 of the
Review to amend the legislative framework to include principles on how the disability
requirements are intended to operate for people with chronic health conditions.
Item - 18 Section 31
414. This item amends section 31 to replace the word 'review' with 'reassessment'
as part of amendments to limit the use of the word 'review' in the Act to review of
decisions. This is consistent with recommendation 23 of the Review.
74
Item - 19 Paragraph 31(c)
Item - 20 After paragraph 31(c)
415. These items amend the principles relating to participants' plans in section 31 of
the Act. Specifically, the amendments differentiate between the relationship
between a person with a disability and their families and significant others, and the
relationship between a person with a disability and their carers. In doing so, the
amendments recognise and respect the important and unique relationship between
people with disability and their carers. This amendment reflects the Carer
Recognition Act 2010 (Cth) and is consistent with recommendation 1 of the Review.
Item - 21 Paragraph 31(d)
416. This item amends the Act by removing the words 'where possible' from
paragraph 31(d). The independent review of the operation of the Act found that
these words were redundant and should be removed because the statement 'so far
as reasonably practicable' at the start of section 31 already provides a degree of
conditionality. This is consistent with recommendation 12 of the Review to remove
'where possible' from section 31(d).
Item - 22 Paragraph 33(2)(c)
417. This item amends paragraph 33(2)(c) of the Act to replace the word 'review'
with 'reassess' as part of amendments to limit the use of the word 'review' in the Act
to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 23 Subsection 36(3) (note)
418. This item amends the note below subsection 36(3) of the Act to replace the
word 'reviewed' with 'reassessed' as part of amendments to limit the use of the word
'review' in the Act to review of decisions. This is consistent with recommendation 23
of the Review.
Item - 24 Subsection 37(2) (note)
419. This item amends the note below subsection 37(2) of the Act to replace the
word 'review' with 'reassessment' as part of amendments to limit the use of the word
'review' in the Act to review of decisions. This is consistent with recommendation 23
of the Review.
Item - 25 Paragraph 41(2)(c)
420. This item amends paragraph 41(2)(c) of the Act to replace the word 'review'
with 'reassessment' as part of amendments to limit the use of the word 'review' in the
Act to review of decisions. This is consistent with recommendation 23 of the Review.
75
Item - 26 Division 4 of Part 2 of Chapter 3 (heading)
421. This item amends the heading of Division 4 of Part 2 of Chapter 3 of the Act to
replace the word 'reviewing' with 'reassessing' as part of amendments to limit the
use of the word 'review' in the Act to review of decisions. This is consistent with
recommendation 23 of the Review.
Item - 27 Subsection 47(1) (note)
422. This item amends the note below subsection 47(1) of the Act to replace the
word 'review' with 'reassessment' as part of amendments to limit the use of the word
'review' in the Act to review of decisions. This is consistent with recommendation 23
of the Review.
Item - 28 Subsection 47(1) (note)
423. This item amends the note below subsection 47(1) of the Act to replace the
word 'review' with 'reassess' as part of amendments to limit the use of the word
'review' in the Act to review of decisions. This is consistent with recommendation 23
of the Review.
Item - 29 Section 48 (heading)
424. This item amends the heading of section 48 of the Act to replace the word
'review' with 'reassessment' as part of amendments to limit the use of the word
'review' in the Act to review of decisions. This is consistent with recommendation 23
of the Review.
Item - 30 Subsection 48(1)
425. This item amends subsection 48(1) of the Act to replace the word 'review' with
'reassessment' as part of amendments to limit the use of the word 'review' in the Act
to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 31 Subsection 48(2)
426. This item amends subsection 48(2) of the Act to replace the word 'review' with
'reassessment' wherever the word occurs as part of amendments to limit the use of
the word 'review' in the Act to review of decisions. This is consistent with
recommendation 23 of the Review.
Item - 32 After subsection 48(2)
427. This item inserts subsection 48(2A) into section 48 of the Act to give the
Minister a discretionary power to make NDIS rules on matters the CEO is to have
regard to when making a decision whether to conduct a reassessment of a plan.
428. The CEO currently makes such decisions on the basis of the factors set out in
the Agency's operational guidelines. This amendment will enable the rules to
provide greater guidance on the rights of participants to request a re-assessment of
76
their plan consistent with recommendation 16 of the Review to amend the legislative
framework to provide greater guidance on the rights of participants to request a
review of their plan.
Item - 33 Subsection 48(3)
429. This item amends subsection 48(3) of the Act to replace the word 'review' with
'reassessment' wherever the word occurs as part of amendments to limit the use of
the word 'review' in the Act to review of decisions. This is consistent with
recommendation 23 of the Review.
Item - 34 Subsection 48(4)
430. This item amends subsection 48(4) of the Act to replace the word 'review' with
'reassessment' as part of amendments to limit the use of the word 'review' in the Act
to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 35 Subsection 48(5)
431. This item amends subsection 48(5) to replace the word 'review' with
'reassessment' wherever the word occurs as part of amendments to limit the use of
the word 'review' in the Act to review of decisions. This is consistent with
recommendation 23 of the Review.
Item - 36 Subsection 48(6)
432. This item amends subsection 48(6) to replace the word 'review' with
'reassessment' as part of amendments to limit the use of the word 'review' in the Act
to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 37 Section 49 (heading)
433. This item amends the heading of section 49 of the Act to replace the word
'review' with 'reassessment' as part of amendments to limit the use of the word
'review' in the Act to review of decisions. This is consistent with recommendation 23
of the Review.
Item - 38 Section 49
434. This item amends section 49 of the Act to replace the word 'review' with
'reassessment' as part of amendments to limit the use of the word 'review' in the Act
to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 39 Section 50 (heading)
435. This item amends the heading of section 50 of the Act to replace the word
'reviewing' with 'reassessing' as part of amendments to limit the use of the word
'review' in the Act to review of decisions. This is consistent with recommendation 23
of the Review.
77
Item - 40 Subsection 50(1)
436. This item amends subsection 50(1) of the Act to replace the word 'reviewing'
with 'reassessing' as part of amendments to limit the use of the word 'review' in the
Act to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 41 Paragraph 50(2)(a)
437. This item amends paragraph 50(2)(a) of the Act to replace the word 'reviewing'
with 'reassessing' as part of amendments to limit the use of the word 'review' in the
Act to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 42 Subsection 50(3)
438. Item 42 amends subsection 50(3) to replace the word 'review' with 'reassess'
as part of amendments to limit the use of the word 'review' in the Act to review of
decisions. This is consistent with recommendation 23 of the Review.
Item - 43 Subsection 50(3) (note)
439. This item amends the note below subsection 50(3) of the Act to replace the
word 'reviewed' with 'reassessed' wherever the word occurs as part of amendments
to limit the use of the word 'review' in the Act to review of decisions. This is
consistent with recommendation 23 of the Review.
Item - 44 Before paragraph 55(2)(a)
440. This item amends the Act by inserting a new paragraph (aa) into section 55(2)
that clarifies that the CEO has the power to require information or documents from
persons who are not participants or prospective participants in order to determine
whether a person with disability may be eligible for services or supports under the
NDIS. This benefits people with disability who are receiving services or supports
under non-NDIS systems which are being, or will be, transitioned to the NDIS. This
is consistent with recommendation 17 of the Review to consider amending section
55 of the Act to broaden the powers of the CEO to obtain information to ensure the
integrity of the NDIS.
Item - 45 Paragraph 55(2)(d)
441. This item amends paragraph 55(2)(d) of the Act to replace the word 'review'
with 'reassessment' as part of amendments to limit the use of the word 'review' in the
Act to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 46 Subsection 60(1)
442. This item amends the Act by repealing subsection 60(1). The provision is
superfluous as the Agency is permitted to collect information under the Privacy Act
1988 (Cth) and protected information would be protected because the Agency has
collected it. There are restrictions on the collection of certain information (personal
information and sensitive information, both of which are subsets of protected
78
information covered by the Act) in the Australian Privacy Principles (APP) (see
Schedule 1 of the Privacy Act 1988 (Cth)). That is, the Agency can collect personal
information if such information is reasonably necessary for the Agency's functions
(see APP 3.1) and it can collect sensitive information (see the definition of this term
in section 6 and the definition of health information in section 6FA of the Privacy Act)
if the individual consents (and consent can be given on their behalf in the case of a
guardian) and the information is reasonably necessary to the Agency's functions
(see APP 3.3).This supports recommendation 18 of the Review regarding the
collection of information that would satisfy the Act definition of protected information.
Item - 47 Subsection 60(3)
443. This item amends subsection 60(3) of the Act to reflect that subsection 60(1)
has been repealed from the Act by item 46.
Item - 48 Section 61
444. This item amends the Act by repealing section 61 which is an offence provision
relating to section 60(1) of the Act that is repealed by item 46. The repeal of section
61 is a consequence of the repeal of subsection 60(1) of the Act.
Item - 49 Section 66(1)
445. This item amends subsection 66(1) of the Act to clarify that the CEO may
disclose information in certain circumstances, despite the offence provision in
section 64. This is consistent with the fact that the CEO may disclose information in
certain circumstances despite other offence provisions contained in sections 62 and
65 of the Act. This is consistent with recommendation 18.
Item - 50 Paragraphs 78(1)(a) and (5)(a)
446. This item amends paragraphs 78(1)(a) and 78(5)(a) of the Act to replace the
word 'review' with 'reassessment' as part of amendments to limit the use of the word
'review' in the Act to review of decisions.
Item - 51 Paragraph 79(1)(a)
447. This item amends paragraph 79(1)(a) of the Act to replace the word 'review'
with 'reassessment' as part of amendments to limit the use of the word 'review' in the
Act to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 52 After subsection 90(3)
448. This item inserts a new subsection into section 90 of the Act to give the CEO
the discretionary power to cancel a nominee's appointment if the nominee stops
being the participant's guardian. Under the Act, a nominee fulfils a different role to a
child's representative. This is consistent with recommendation 22 of the Review to
amend section 90 to allow the CEO to cancel or suspend a nominee appointment if
the nominee ceases to be the guardian of the participant.
79
Item - 53 Paragraph 96(2)(b)
449. This item amends paragraph 96(2)(b) of the Act to replace the word 'review'
with 'reassessment' as part of amendments to limit the use of the word 'review' in the
Act to review of decisions. This is consistent with recommendation 23 of the Review.
Item - 54 Paragraph 99(f)
450. This item amends paragraph 99(f) of the Act to replace the word 'review' with
'reassess' as part of amendments to limit the use of the word 'review' in the Act to
review of decisions. This is consistent with recommendation 23 of the Review.
Item - 55 Paragraph 104(3)(f)
451. This item amends paragraph 104(3)(f) of the Act to extend the CEO's
consideration of the impact of a requirement to take action to obtain compensation
on a participant's or prospective participant's family to include the impact on carers.
This amendment recognises that those who care for people with disability are not
limited to family members. This is consistent with recommendation 24 of the Review
to amend section 104(3)(f) to reference carers.
Item - 56 Chapter 6 (heading)
Item 57 - Part 1 of Chapter 6 (heading)
452. These items amend the headings of Chapter 6 and Part 1 of Chapter 6 to refer
to the National Disability Insurance Agency, as part of several amendments to
update the name of the Agency. This is consistent with recommendation 29 of the
Review.
Item 58 - Subsection 117(1)
453. This item amends subsection 117(1) of the Act to formally update the name of
the Agency from National Disability Insurance Scheme Launch Transition Agency to
National Disability Insurance Agency, which reflects the more user-friendly name the
Agency has been known as in the Australian community since 2013. This
amendment also clarifies that there is no change to other aspects of the Agency
other than to its name. This is consistent with recommendation 29 of the Review.
Item 59 - At the end of subsection 127(2)
454. This item amends the Act by adding a note at the bottom of subsection 127(2)
to assist the interpretation of that subsection. The note clarifies that people with
lived experience of disability, and people with disability, are eligible for membership
of the Board of the Agency. This is consistent with recommendation 26 of the
Review to clarify the intent of subsection 127(2)(a) of the Act in terms of it
encompassing 'lived experience with disability'.
80
Item 60 - Paragraph 174(1)(b)
455. This item amends paragraph 174(1)(b) of the Act to extend the timeframe for
the provision of quarterly reports to the Ministerial Council to within six weeks after
the end of the relevant quarter. This is to reflect the fact that the current time frame
hinders the Agency's ability to provide the best possible report, given the amount of
data that needs to be analysed. This is consistent with recommendation 28 of the
Review to consider the legislated timeframes related to the production of Quarterly
Reports.
Item 61 - Subsection 174(5)
456. This item amends the Act by repealing subsection 174(5), which is no longer
applicable given that the first report has now been completed.
Item 62 - Paragraph 182(2)(c)
457. This item amends paragraph 182(2)(c) of the Act to clarify that providers are
entitled to be paid NDIS amounts where they have provided a support to a
participant, even where the participant died after the provision of the support but
before the provider was due to be paid for the provision of the support. This is
consistent with recommendation 30 of the Review to amend subsection 182(2)(c) of
the Act to exclude from its application, payments relating to approved supports that
have already been delivered.
Item 63 - Subsection 209(3)
458. This item amends subsection 209(3) of the Act to clarify that, in making NDIS
Rules, the Minister is required to have regard to the objects and principles in
sections 3, 4 and 5 of the Act, as well as the financial sustainability of the NDIS.
This is consistent with recommendation 32 of the Review to amend subsection
209(3) of the Act to reference the objects and principles of the Act.
Part 2 - Application provisions
Item 64 - Application of amendments
459. Subsection 64(1)(a) clarifies that the amendment to subsection 24(1) of the Act
in item 16 of Schedule 2 do not apply to access requests made before the
commencement of this Schedule. It only applies to access requests made on or
after the day the amendments commence.
460. Item 64(1)(b) clarifies that the amendment to subsection 24(1) of the Act in item
16 of Schedule 2 does not apply to persons who became NDIS participants prior to
the day the amendment commences. Therefore, these persons are not required to
meet the requirement in new paragraph 24(1)(f) of the Act and they cannot have
their NDIS access revoked on the basis of not meeting the requirement in new
paragraph 24(1)(f) of the Act.
81
461. Item 64(2) clarifies that the amendment to section 90 of the Act in item 51 of
Schedule 2 means that, from the date of commencement of the amendment, all
nominees can have their appointments cancelled by the CEO on the basis that they
no longer having guardianship of an NDIS participant, regardless of when the
nominee was appointed.
462. Item 64(3) clarifies that the amendment to paragraph 182(2)(c) of the Act in
item 62 of Schedule 2 applies to all payments of NDIS amounts and not just those
made after the commencement of the amendment.
82
REGULATION IMPACT STATEMENT
ABOUT THIS DOCUMENT
The purpose of this Decision Regulation Impact Statement (RIS) is to recommend
preferred policy options for the regulatory components of the proposed NDIS Quality
and Safeguarding Framework for consideration by the Disability Reform Council
(DRC), namely:
• complaints and serious incident handling;
• worker screening;
• registration and code of conduct; and
• reduction and elimination of restrictive practices.
It has been prepared in accordance with the guidelines of the Council of Australian
Governments (COAG) in the Best Practice Regulation Guide (2007).
A separate document setting out the full framework, including non-regulatory
elements, has also been prepared for consideration by the DRC.
A range of regulatory and non-regulatory measures were canvassed in a
Consultation Regulatory Impact Statement developed by Commonwealth, state and
territory officials, and released early in 2015. Consultations on the paper took place
between February and April 2015, and included public meetings, meetings and
workshops with specific stakeholder groups, submissions, online questionnaires and
an online discussion forum. In addition, an impact assessment was commissioned to
assess the costs and benefits of the proposed options.
The proposals presented here also take into account the recommendations of a
number of current inquiries into the child protection and disability sectors. This
includes the royal commission into institutional responses to child abuse; the
Victorian ombudsman; the family and community development committee of the
Victorian parliament; and the federal senate community affairs references committee
inquiry into abuse and neglect against people with disability in institutional and
residential settings, including the gender and age related dimensions, and the
particular situation of Aboriginal and Torres Strait Islander people with disability, and
culturally and linguistically diverse people with disability.
1
Section 1: Background and Consultation
Productivity Commission Report
In August 2011, the Productivity Commission released a major report on Disability
Care and Support. The Commission found that it was unreasonable and
impracticable to expect people to self-insure against disability, and that the lack of
adequate support for people with disability had adverse impacts on both individuals
and the economy. The Commission also found that the current disability support
system is underfunded, unfair, fragmented, and inefficient, and gives people with a
disability little choice and no certainty of access to appropriate supports. It found that
investment in early intervention and appropriate supports could reduce longer-term
disability support and income support costs.
The Productivity Commission also noted that it would be appropriate to put in place a
range of safeguarding mechanisms, including information for consumers to reduce
transactions costs, complaint mechanisms, registration requirements, standards
providers must meet, regulation of restrictive practices, and effective monitoring and
oversight. Because the NDIS would be a national system, the Productivity
Commission argued that it is likely to be most efficient and effective if it is
underpinned by a nationally consistent quality and safeguarding framework.
COAG Response
In response, on 19 August 2011 COAG agreed in principle on the need for major
reform of disability services in Australia through a National Disability Insurance
Scheme (NDIS).
In order to advance the implementation of the NDIS, on 13 April 2012, COAG agreed
to a set of principles for the NDIS, and a consultation RIS was released on 7
December 2012. A final RIS was not considered by the DRC as the decision to
transition to full scheme had already been agreed in Heads of Agreement between
Commonwealth and state and territory governments. The National Disability
Insurance Scheme Act 2013 received royal assent on 28 March 2013. The NDIS
started in July 2013 as a trial in four locations. Implementation of the full scheme will
commence from 1 July 2016, noting that discussions are underway regarding the
future of disability services provision in Western Australia
The operation of the NDIS
The NDIS adopts a no-fault, needs based insurance approach to supporting people.
It is intended to ensure that people with disability have access to reasonable and
necessary supports they need to live an ordinary life.
The scheme recognises the right of people with disability to exercise choice and
control over the planning and delivery of their supports. It is also designed to ensure
that the chances of achieving the desired outcomes of its investment in terms of
economic and social participation for people with disability are achieved.
2
The National Disability Insurance Agency (NDIA) administers the NDIS. In particular,
it is responsible (amongst other things) for:
assessing the eligibility of a person for the scheme;
agreeing with the participant what supports are 'reasonable and necessary'.
NDIS funding cannot be used for any other purpose;
paying for reasonable and necessary supports available from the NDIS
market;
assessing the risks individuals face in participating in the NDIS, and for
ensuring adequate safeguards are in place to manage these; and
direct commissioning of supports where these would not otherwise be
provided through the market.
The NDIA has a number of powers at its disposal to assist it in managing the NDIS
market, including setting conditions through its terms of business agreements with
suppliers, and power to set the prices of supports.
Under the NDIS, people with disability (or those acting for them) will:
set their objectives through plans;
have input into the process of deciding what supports and reasonable and
necessary to achieve these objectives;
choose their own suppliers of supports;
negotiate with suppliers on how those supports will be delivered on a fee for
service basis; and
where they choose and are approved to do so, manage the payments for
supports.
Quality and Safeguarding
At the time the scheme was initially legislated it was recognised that development of
nationally consistent standards and appropriate safeguards to support and protect
people with disability was an essential foundation for the scheme. As an interim
measure it was agreed that state and territory regulatory systems would operate in
conjunction with the NDIS while governments worked together on the design of a
nationally consistent quality and safeguarding system, to be agreed by the DRC.
Current state and territory quality and safeguarding systems for the disability sector
involve a mix of formal (legislation/regulation) and informal regulation (policy)
exercised through management of funding agreements and contracts. While there
are differences between jurisdictions, there is a high degree of consistency in current
approaches, which typically involves five main elements:
statutory complaints handling bodies;
serious incident reporting and oversight;
worker screening requirements (working with vulnerable person checks,
excluded worker schemes, and/or requirements for police and referee
checks);
controls on the use of restrictive practices, consistent with the National
Strategy to reduce and eliminate restrictive practices; and
3
quality assurance requirements, consistent with the National Standards for
Disability Services.
Competition Policy Review
The recent Harper Inquiry into Competition Policy also made a number of
recommendations on human services delivery that were accepted by the Australian
Government that are of relevance to this, including that in adopting choice and
competition principles in the domain of human services, guiding principles should
include:
User choice should be placed at the heart of service delivery;
Governments should retain a stewardship function, separating the interests of
policy (including funding), regulation and service delivery;
Governments commissioning human services should do so carefully, with a
clear focus on outcomes;
A diversity of providers should be encouraged, while taking care not to crowd
out community and volunteer services; and
Innovation in service provision should be stimulated, while ensuring minimum
standards of quality and access in human services. 1
The Harper Inquiry noted that the stewardship function should have some similarities
with the ongoing stewardship role of government in other sectors, such as the
electricity market. Governments have established both an energy market operator to
keep energy services delivered and a separate rule maker to change the way the
energy market operates over time so that it continues to meet the long term interest
of consumers. In reforming the electricity market, governments recognised the role
of a strong consumer protection framework in building confidence in the market; good
stewardship is important in human services since human services can be just as
essential to many Australians, especially those facing disadvantage. The report
noted that stewardship relates not just to governments' direct role in human services
but also to policies and regulations that bear indirectly on services.
DRC decisions
On 12 December 2014 DRC agreed to a consultation paper and approach to the
development of a nationally consistent, risk-based quality and safeguards framework
for the NDIS noting that the paper will form the consultation element of a COAG RIS.
DRC consulted with interested parties during February to early May 2015 on a new
quality and safeguarding framework that is consistent with the overall approach of the
NDIS.
1
Harper Report on Competition Policy Review, Chapter 12, 31 March 2015 ; Government response,
November 2015.
4
The consultation involved the following activities between February and May 2015:
16 public meetings in capital cities and regional locations in each state and
territory;
7 provider meetings in locations around Australia;
6 workshops with specific stakeholder groups;
220 submissions;
585 questionnaire responses about particular quality and safeguarding
measures; and
an online discussion forum.
Officials from different jurisdictions also engaged in targeted stakeholder
consultations.
In addition, an impact analysis was commissioned from the NOUS Group, and
included collecting data from two surveys with responses from 289 providers,
administrative data from governments, publically available sources, and expert
opinion.
On 13 November 2015 DRC agreed to the broad directions of an NDIS quality and
safeguarding framework and to publish a report on the outcomes of the 2015 public
and stakeholder consultation process (report available at dss.gov.au).
A RIS on the transition to full scheme was released on 10 March 2016, and noted
that in the context of managing the transition to an NDIS, governments need to
reconsider protections for people with disability and arrangements to ensure supports
are of a high quality. It pointed to four key reasons for this:
1. Greater choice and control. Existing arrangements for quality and
safeguarding are based on funding agreements between governments and providers
of supports. These funding agreements set quality expectations for participants and
providers and aim to protect people with disability from harm. The NDIS, in contrast,
provides the funding to individual participants who then make choices about their
supports. This creates the need for a new quality and safeguarding framework
because it is the person with disability, not government, who is able to make
judgements and decisions about the quality of providers. It also means a different mix
of providers will enter the market, requiring a new approach to quality and
safeguarding.
2. Governments will no longer be purchasing specialist disability services.
In the NDIS, the primary funding relationships will be between the person with
disability and the provider of supports. This means the Commonwealth and states
and territories will not continue to have funding agreements with providers. The
current quality assurance arrangements, and some of the current safeguards, will
therefore no longer apply.
3. An opportunity exists to streamline requirements, reduce red tape and
promote the market for supports. The development of a new quality and
safeguarding framework is an opportunity to simplify the rules and make them the
same across jurisdictions. This should facilitate the start-up of new national providers
and offer greater choice to people with disability in the scheme.
5
4. There is a greater need for National consistency. The NDIS is a national
scheme and as such needs a consistent quality and safeguarding framework for all
jurisdictions that it operates across.
On 4 March 2016 the DRC agreed in-principle to the key features of a new national
quality and safeguards framework for the NDIS, noting it will be implemented for full
scheme, noting that it expected to make a decision on the final framework and the
respective roles of the Commonwealth, the states and territories and the NDIA by the
end of May 2016.
DRC welcomed the Commonwealth's proposal to establish new national functions for
provider quality and registration, as well as national functions for handling
complaints, including investigating serious incidents, and overseeing the use of
restrictive practices. DRC asked its officials to continue to work on finalising the
framework and assessing the regulatory impacts, as well as doing more work on
restrictive practices functions and worker screening.
Section 2: statement of the problem
The need for a quality and safety framework for the NDIS is dictated by several
factors, including:
• the need to put in place measures to underpin the effective operation of the
NDIS market to complement and operationalise the provisions already
included in the NDIS legislation;
• to ensure that participants in the NDIS market are able to exercise choice and
control;
• ensure that supports provided are of sufficient quality to achieve the
participation and other objectives of the NDIS, and are delivered safely; and
• to provide protections for vulnerable people from the risk of violence, abuse,
neglect and exploitation and other harms in the course of support provision.
The effective operation of the NDIS market
The NDIS involves creating a market for disability supports. This is a very significant
change and brings with it new risks that need to be managed. Under the NDIS the
amount of funding provided by governments for disability services and equipment is
expected to expand rapidly, from an estimated $14.9 billion in 2012 to $22 billion in
2019-20. Under the NDIS, the number of individuals accessing disability supports is
expected to increase from around 320,000 in 2012 to 480,000 in 2019-20. In order to
meet the demand for supports, the workforce in the sector will need to double by full
roll out in 2019-20.
This expansion poses considerable risks, particularly for participants with complex
needs or who live in regional and remote locations. Some workers in the sector have
limited formal qualifications, and often operate in settings such as the participant's
home, with limited supervision. This expansion will also take place in a context of
competition from related sectors such as aged care. There are also likely to be a
6
large number of new entrants to the market, generating new quality, safeguarding
and other risks, particularly in the early years of the scheme.
The transition process for any sector undergoing significant change can be
challenging. The experience of the home insulation scheme and reforms to
vocational education, for example, suggest that a level of turbulence is likely to occur
where a substantial amount of government funding is injected into a system using a
market delivery approach.
These risks may be particularly high given that the market is likely to undergo
significant restructuring as it grows, due to the shift to a fee for service system,
privatisation, and the entry of a more diverse range of suppliers of supports, including
increased number of for-profit organisations.
The NDIS legislation and associated regulation already makes provision for a
number of measures to address these risks. Currently, however the NDIA is reliant
on state and territory regulatory bodies for assessment of provider quality, and
responses to serious incidents. Under full scheme this support will no longer be
available, and so alternative arrangements need to be put in place to manage these
processes.
It is important that these arrangements reflect best practice, are adapted to the new
operating environment for the sector, and are as efficient and effective as possible.
Currently, for example, providers operating across jurisdictions or sectors typically
have to comply with several different sets of quality assurance requirements, each of
which involve significant compliance costs. Indeed a survey conducted for the
analysis found that 75% of those who responded complied with more than one
quality assurance framework.2 Similarly worker screening clearances, such as
Working with Children Checks, Working with Vulnerable People Checks (or Police
check requirements) are not portable moving between jurisdictions (or jobs in the
case of police checks). The level of duplication and red tape under the current
system increases costs for consumers, workers, suppliers of supports and
government, and constitutes a potential barrier to entry in some cases.
The NDIS Quality and Safeguarding Framework also needs to take into account the
major injection of funding that will occur in the sector, that is likely to see many new
organisations, including for profit suppliers and sole traders, entering the market; the
expansion of existing providers; and innovation in services. This provides an
opportunity to explore what mechanisms are needed for a market-based system, and
ensure the regulatory framework reflects best practice principles.
User choice
Prior to the NDIS people with disability typically had little choice over what supports
they could access and how those supports are delivered. The Productivity
Commission suggested that people with disability had little choice and no certainty of
access to appropriate support, and so proposed that under the NDIS, there should be
certainty of funding based on need, and genuine choice over how their needs were
2
NOUS Group, NDIS quality and safeguarding framework: Impact analysis report, July 2015, pp 111.
7
met, including choice of provider. The Productivity Commission found strong
evidence that where people with disability have a say in key decisions about their
lives, outcomes are much better. Under previous arrangements, participants were
not empowered to exercise choice and control in many circumstances, which in turn
means less personalised services being provided, less innovation and a lack of
diversity for support.
Providing for user choice will not happen automatically as the Commission made
clear:
However, realising the gains from increased consumer choice will neither be
automatic, nor immediate. While many participants in this inquiry are clearly
well equipped to make good informed decisions about the support services
they wish to use, to demand high quality services and to complain or switch
providers when their expectations are not met (if given the opportunity to do
so), this will not be the case for all. As discussed above, the vulnerability of
many people with a disability increases the risks of harm or poor outcomes,
even when consumer choice is greatly enhanced under the NDIS. As such,
both service providers and consumers will require assistance in ensuring that
a more market-based system can deliver good outcomes (as well preventing
bad outcomes).3
Quality of services
Another key consideration in relation to the strength of the regulatory system is the
risk that the supports provided under the NDIS are of such poor quality that
participants do not achieve their life goals. This in turn would lead to poor quality of
life and outcomes for participants, and prolong their reliance on the scheme and
reduce its long term sustainability.
The Productivity Commission pointed out in its report on Disability Care that while
ensuring that suppliers consistently deliver an acceptable standard of quality is
relatively straightforward for physical goods, such as aids and appliances, it is
considerably more difficult to observe and enforce quality standards in the provision
of disability services, due to their intangible and highly varied and personalised
nature.4 The Commission noted that as welfare of people with disabilities is the
primary motivation for industry oversight, consumer outcomes represent the most
direct form of observing service quality, and should be a key feature of an NDIS
quality assurance framework, together with the primary (and interrelated) regulatory
objective of protecting people from significant harm.
To this end, a pilot study of an NDIS Outcomes Framework, using a self-assessment
approach, was released in December 2015.5 Nonetheless, there is currently little or
no data on the extent to which services currently make a difference for people with
disability, including in terms of achieving outcomes, as most measurement is
3
Productivity Commission, Disability Care and Support Report, pp 438.
4
Ibid, pp 434
5
http://www.ndis.gov.au/document/outcomes-framework-pilot
8
currently input based, and data on compliance against the National Standards for
Disability Services is not currently systematically collected or assessed.
In the absence of other measures, one possible indication of levels of poor service is
complaints rates, which are currently estimated to be made by around 3% of support
clients.6 This is extremely high by comparison with other sectors, where rates are
typically in the order of less than five per thousand clients.7 Moreover, while this
figure has been used as a proxy for quality deficits in the cost-benefit analysis, it
should be treated with extreme caution, as it may be a significant underestimate as at
least one jurisdiction is currently experiencing a complaint rate in the order of 10%.8
In addition, experience in other industries suggests that complaints about service
quality are likely to increase significantly in the transition to a market environment,
both because inexperienced and/or unscrupulous service providers enter the market,
and consumers are empowered to demand services that make a difference to them.
Ensuring that the system encourages the provision of innovative, high quality
supports is important to achieving the participation and other outcomes expected for
the NDIS and safeguarding taxpayer funds.
Safety
There are some support types that will come under the NDIS that are intrinsically
risky. This includes supports where workers are providing hands-on personal care,
and where a person is dependent on proper use of equipment that requires training
(such as ventilators). Similarly some services, such as peg feeding and
administration of prescription drugs can have serious adverse effects when not
carried out correctly.
While some services can only be delivered by persons subject to professional
registration requirements, in many cases this is not the case.
There is currently no national data on deaths, serious injuries or other harm as a
result of inadequate safety in disability services. What data is available, however,
suggests that there are significant issues that need to be addressed. A recent
analysis of a sample of deaths of people with disability in care in Queensland, for
example, suggested that over half were preventable. In NSW there were 239
reviewable deaths (of people in care) during 2012 and 2013, with a high proportion
premature, and potentially preventable.9
Safety regulation for many supports is currently managed through funding
agreements and associated quality assurance requirements that will no longer apply
6
See Appendix 1.
7
Telecommunications Consumer Protections Code - Regulation Impact Statement - Australian
Communications and Media Authority, 11 July 2012.
8
The Victorian Parliamentary Inquiry noted that the complaint rate in Victoria, for example, which has
actively promoted idea that it is 'alright to complain' is around 10%. [Other jurisdictions data]
9
Queensland Office of the Public Advocate, Upholding the Right to Life and Health: a review of the
deaths in care of people with disability in Queensland, March 2016; NSW Ombudsman, Report of
Reviewable Deaths in 2012 and 2013 volume 2: Deaths of people with disability in care, June 2015.
9
under the NDIS. Accordingly, there is a need to put in place appropriate systems are
in place to ensure that workers continue to be adequately trained and/or skilled to
undertake particular tasks in order to avoid injury or other harm to participants.
Restrictive practices
Another key safety issue, with significant human rights implications, relates to the use
of 'restrictive practices'. A relatively small proportion of people with disability may
need additional supports to reduce the risk of harm where some behaviours may
pose a risk to themselves or others. These are often described as challenging
behaviours or behaviours of concern. They are behaviours of such intensity,
frequency or duration that the physical safety of the person or others is likely to be
placed in serious jeopardy. It also includes behaviour which is likely to seriously limit
the use of, or result in, the person being denied access to services or ordinary
community facilities.
Disability services often find it challenging to provide safe and therapeutic services
for those with complex high support needs, as well as providing the safest possible
work environment for staff. In the absence of adequate support and oversight, this
can lead to both a reluctance to provide supports to those with high support needs,
and a failure to uphold the rights of people with disability where they are used.
In the past, restrictive practices were often used as first line of response to
behaviours of concern. Today the evidence is clear that such actions, taken routinely
to control individuals' behaviour, have been harmful, often exacerbating the
behaviours they sought to control. Restrictive practices can also have other
undesired side-effects, as the box below illustrates.
Box 2.1 Use of restrictive practices
An estimated 10-15% of persons with disability will show 'behaviours of concern'.
The majority of these are people with intellectual or cognitive disabilities or autism10.
Medication to control behaviour: It is estimated that between 44-80% of this group
will be administered a form of 'chemical restraint' in response to the behaviour11. A
recent UK study found that 71% of people with disability prescribed antipsychotics
had never been diagnosed with a mental illness; that such medications were no
better than placebo in managing behaviour; and that these medications had
potentially severe side-effects including diabetes and obesity.12
Physical Restraint: No systematic data is currently collected on deaths or serious
events as a result of use of restraint, but a Harvard study estimated that between 50
and 150 deaths were occurring in the US each year due to asphyxia and cardiac
complications resulting from the use of restraints.13
10
ALRC
11
ALRC 124, chapter 8.
12
http://www.scientificamerican.com/article/antipsychotic-drugs-often-given-to-intellectually-
disabled-in-absence-of-mental-illness/
13
See also Hartford Courant Investigative Report, 1999.
10
Seclusion: Solitary confinement in a room or area which they cannot leave has been
linked to a high rate of assaults on staff (one study found that 70% of staff using
physical restraint and/or seclusion have been assaulted.14
Current best practice assumes that, in the main, restrictive practices are a response
to behaviours that have the potential to cause harm to the individual or others, and
can and should be eliminated through positive behaviour strategies. In order to
achieve this, all Governments committed to implementing the National Framework for
Reducing and Eliminating the Use of Restrictive Practices in the Disability Service
Sector (National Framework) in 2014. The National Framework establishes a
national approach to reducing and eliminating the use of restrictive practices by
providers across a range of disability service sector settings. It sets out six core
strategies to achieve this. Jurisdictions have agreed to implement these by 2018 for
all disability service providers for which they or the NDIA have funding responsibility.
Despite this commitment, the rates at which such practices are used in Australia
appears to be high compared to other countries such as the United Kingdom.15 It is
estimated that around 20,000 people are currently subject to restrictive practices.16
Abuse, violence, neglect and exploitation
As the recent Senate Inquiry into Disability Abuse in Institutional settings has
highlighted, there is currently no consistent and systematic collection of data on harm
of people with disability by workers across Australia.17 It is also well established that
there is significant under-reporting of abuse and other crimes against people with
disability. Nonetheless, there are strong indicators that suggest the need for action.
Rates of assault and abuse: People with disability experience significantly higher
rates of harm than others. It has been estimated that children with disability are 3.4
times more likely to be mistreated than children without disability. People with
intellectual disability are three times more likely to be assaulted, ten times more likely
to be sexually assaulted, and ten times more likely to be robbed than others.
Women with intellectual disability are 50-90 per cent more likely to be subjected to a
sexual assault than women in the general population, and over 25 per cent of all
sexual assault victims identified as having a disability. Only 4% of offenders are
strangers, and around 80% of those abused are likely to endure multiple episodes
over long periods of time.
Box 2.2: Risk factors for abuse, harm, neglect and exploitation
14
Wynn (2003), cited in https://www.psychology.org.au/Assets/Files/Restrictive-Practices-Guidelines-
for-Psychologists.pdf
15
Australian Psychological Society paper "Evidence-based guidelines to reduce the need for restrictive
practices in the disability sector".
16
The Discussion Paper suggested that the figure could be in the order of 8,000-9,000 individuals,
based on data from the Victorian system. Subsequent audits of services suggests that this may be a
significant underestimate.
17
See Report, chapter 2:
http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Community_Affairs/Violence_abus
e_neglect/Report
11
Research shows that people with disability are at an increased risk of abuse, harm,
exploitation and neglect due to a range of factors that may include:
. Dependence on others for care and support
. Difficulties with communication that may hamper the person's ability to disclose
experiences of abuse
. Social isolation
. Lack of access to support services
. Cultural devaluation of people with disability
. Disability service design that favours shared supported accommodation
arrangements.
Australia's top three commonly reported primary disabilities by people who are
support users are:
. Intellectual (accounting for 30%)
. Psychiatric (accounting for 20%); and
. Physical (accounting for 17%)
Mistreatment comes in many forms and although the type of abuse perpetrated
against people with disability varies according to particular circumstances and
context, commonalities can be drawn from the literature. In general, people with
disability are at increased risk of experiencing:
. Physical violence
. Sexual assault
. Emotional and psychological abuse and neglect
Source: Australian Institute of Health and Welfare, People using both Disability
Services and Home and Community Care in 2010-11.
Service context: The extent of violence, sexual assault, neglect and other abuse of
people with disability in the context of the provision of supports, though, is extremely
difficult to gauge. Studies into abuse of people with disability have, however, found a
consistent pattern of abuse perpetrated by those who wield power within the
relationship, especially where the person with disability is reliant on the assistance of
the service provider for day-today support.18
The box below summarises the limited data that is available.
Box 2.3: Recognising crime and misconduct
Health Services Union Submission: Nearly half of members surveyed (46.79 per
cent) reported that they had witnessed violence, abuse or neglect against people with
a disability by other staff, either at their current workplace or when working for a
18
See for example Sally Robinson and Leslie Chenowith, Understanding emotional and psychological
harm of people with intellectual disability: an evolving framework,
http://www98.griffith.edu.au/dspace/bitstream/handle/10072/47425/80101_1.pdf?sequence=1; D.
Woodlock, et al, 'Voices Against Violence: Paper 6: Raising Our Voices - Hearing from with Women
with Disabilities.' Women with Disabilities Victoria, Office of the Public Advocate and Domestic
Violence Resource Centre Victoria, 2014
12
previous employer. Furthermore, nearly 1 in 5 respondents (18.07 per cent) reported
that while they had not personally witnessed abuse, they had been told about
incidents by co-workers.
Victoria: Around 15% of all complaints made to the Victorian Disability Services
Commissioner related to abuse, assault or neglect (Sub, Oct 2015). Some 18% of
complaints made to the Victorian Disability Services Commissioner in 2014-15 were
workforce related, with half relating to staff behaviour and attitude, the other half
relating to skills and knowledge (Annual Report).Victorian Community Visitors
identified 287 cases of violence, neglect or abuse in 2013-14.
NSW: 100 allegations of employee to client reportable incidents (59% of all
reportable incidents) in relation to people with disability living in supported group
accommodation. Of these 42 were allegations of physical assault, 28 were of sexual
assault or misconduct, 25 related to alleged ill-treatment or neglect, and 5 related to
fraud. (NSW Ombudsman).
Table 1 below sets out an estimate of the rate of cases of serious harm that occur
currently that forms a key input to the cost-benefit analysis of the regulatory options
contained in this paper.19 The rates are based on provider reports of incidents to
governments from five jurisdictions, adjusted to take account of under-reporting. The
rates are estimates only and should be treated as indicative only. Nonetheless, they
lend weight to anecdotal and other evidence that the number of people affected by
abuse from providers of supports, as well as by other residents, is significant.
19
For a discussion of the basis for the estimates and other key assumptions used in the cost-benefit
analysis, see Appendix 1.
13
Table 1: Estimated current rates of serious adverse incidents, 2014, Australia
Estimated rate of
serious adverse incidents
(% clients)
Physical Assault 2.5%
Sexual assault 0.5%
Neglect 1.25%
Theft 1.0%
These estimates do not take into account rates of other forms of abuse and
exploitation, such as ongoing emotional and psychological abuse, which can have a
major impact on victims.
The recent Senate Inquiry commented that:
'The committee is very disturbed by the significant body of evidence it has
received which details the cruel, inappropriate and, in many cases, unlawful
treatment of Australians with disability. The committee is equally disturbed by
the largely inadequate responses that these cases have received when
reported to authorities and people in positions of responsibility. The committee
is also concerned by the fact that many more cases remain unreported, partly
as a result of inadequate responses to reporting. This is clearly
unacceptable ... . Taken as a whole, the evidence shows a systemic failure to
protect people with disability ... '20
Section 3: Objectives
The proposed NDIS Quality and Safeguarding Framework
Objectives of the NDIS Quality and Safeguarding Framework
In a complex system such as the disability sector, where risks arise from both
demand and supply side factors, no single regulatory measure can hope to address
the range of problems identified or even any one element of them in isolation. Some
supports may be inherently risky, for example, or pose a higher risk, because they
involve more direct contact between staff and participants or unsupervised contact
(such as personal care in their home). People with disability themselves will have
different levels of risk due to their capacity to make informed decisions as well as the
level of involvement of their support networks, including carers, family and friends.
Accordingly, a suite of mutually supportive regulatory and non-regulatory measures,
aimed at building system capacity and support systems (developmental); preventing
harm and promoting service quality (preventative); and taking corrective action where
necessary (corrective), has been developed for consideration. The proposed
Framework proposes a risk-based and person-centred approach to quality and
safeguarding, starting from the identification of risks and safeguards through
20
Senate Report, ch 3
14
individual planning and higher compliance requirements for staff and providers of
supports considered to pose a higher risk.
The overall objectives of the NDIS Quality and Safeguarding Framework are to
ensure NDIS funded supports:
• uphold the rights of people with disability including by ensuring supports are
high quality to live their lives and achieve their goals;
• are focused on person-centered approaches to effectively achieve outcomes
for people with disability in ways that support and reflect consumer
preferences and expectations;
• are safe and fit for purpose;
• allow participants to live free from abuse, violence, neglect and exploitation,
including by addressing systemic issues identified in recent reviews; and
• enable effective monitoring and responses to emerging issues as the NDIS
develops.
The expectation is that most investment in the system will occur at the developmental
and preventative levels, in order to minimise the need for formal regulatory, and
particularly corrective action. Further details of the overarching framework, including
the non-regulatory measures, are provided in a separate report prepared by officials
for consideration by the DRC. A summary of the full Framework can be found at
Appendix A.
Intermediate objectives for the regulatory measures
The proposed regulatory components of the framework. considered in this RIS relate
to:
A: Complaints and Serious Incidents management;
B: Worker Screening;
C: Registration and Code of Conduct requirements; and
D: Use of Restrictive Practices.
For each component, a number of sub-options are explored. Intermediate objectives
have been developed for each of these elements, and are set out below.
A Complaints and Serious Incident Management
In its Report on Consumer Policy in 2008, the Productivity Commission argued that
over time, an effective consumer protection system can have a significant positive
effect on the economy by:
• making it easier for consumers to get problems fixed or compensation
from the supplier (redress);
• reducing the amount of effort they need to put into managing their
choice of supports ('transactions costs');
15
• reduced legal, time and other costs for suppliers in dealing with
problems;
• increased competition and innovation due to pressure from empowered
consumers.
In addition the Harper Report on Competition Policy noted that successful structural
change in human services provision is likely to require specific measures to support
consumer participation and help manage the costs of complexity. 21 In addition, a
particular challenge in the disability context is the difficulty of identifying and acting to
reduce consumer detriment due to under-reporting of crime and serious misconduct.
Complaints and serious incident reporting requirements are a common mechanism to
support user choice and drive quality improvement by addressing sources of
consumer detriment.
For this reason it envisaged that the current system of statutory complaints systems
or their equivalent would continue to be necessary under the NDIS. Accordingly,
options for complaint handling and serious incident reporting requirements have been
developed with the objectives of:
putting in place a complaints and serious incident system that will assist in
managing the transition to, and underpin the effective operation of the NDIS
market by ensuring that consumer rights can be enforced;
ensuring that participants in the NDIS market are able to exercise choice,
including by ensuring complaints are responded to in a timely and effective way;
ensuring that supports provided are of high quality to achieve the participation
and other objectives of the NDIS, by providing incentives for suppliers to address
sources of consumer detriment through effective complaints systems;
operationalising the provisions already included in the NDIS legislation for serious
incident reporting, including by providing a mechanism to identify and address
systemic causes of harm by analysis of and action in relation to complaints and
serious incidents; and
preventing violence, abuse, neglect, exploitation and other safety issues and
minimise the impact on participants when they occur by
- ensuring suppliers have effective internal governance and accountability
mechanisms for serious incidents in place;
- that serious incidents and complaints are managed effectively, and that the
safety and wellbeing of participants is the highest priority when a serious
incident occurs;
B Worker Screening
A number of recent reports have pointed to the ability of individuals guilty of crimes or
serious misconduct to operate within the system unchecked as a cause of abuse,
neglect and exploitation of people with disability. 22 While the primary responsibility
21
Recommendation 2 and chapter 12.
22
See especially Report of the Senate Inquiry into Violence, Abuse and Neglect against People with
Disability, esp ch 8; Victorian Disability Services Commissioner, Beyond doubt: the experiences of people
with disabilities reporting crime, July 2014; Victorian Parliament, Inquiry into Disability Services, Interim
Report, July 2015.
16
for recruiting safe employees rests with employers, a number of options around
worker screening have been developed which could supplement current
requirements relating to children (including children with disability), as well as
reinforce and assist employers in undertaking those responsibilities.
In that light, the objectives of the worker screening options are to reduce the
occurrence of abuse, neglect and exploitation of people with disability by:
deterring individuals who pose an unacceptable risk of harm from seeking
work in the sector;
reducing the potential for people who pose a risk to participants by ensuring
that adequate and effective screening and background checks are undertaken
on staff employed in the sector and that there is ongoing monitoring of their
suitability to work in the sector;
removing those proven to pose a risk to participants from continued
employment in the sector; and
sending a strong signal about the priority placed on the right of people with
disability to be safe.
17
C Registration and Code of Conduct
The Productivity Commission Report on Disability Care stated that in order to ensure
the quality of supports and safety of participants, there need to be rules set by
government that must be complied with by suppliers of supports as a necessary
supplement to the direct discipline and reward that results from consumer choices.
The recent Harper Inquiry also recommended licensing requirements to ensure
minimum standards in human services delivery, noting that care needed to be taken
to ensure that these did not raise artificial barriers to entry and inhibit innovation
unduly.23
The National Standards for Disability Services provide an agreed basis for
addressing supply-side risks under the NDIS, and a number of options to
operationalise them, including a range of conditions for registration under the NDIS
Act, as well as an NDIS Code of Conduct, have been developed. The objectives of
these measures are to:
put in place measures to underpin the effective operation of the NDIS market
by operationalising the provisions in the NDIS Act for supplier registration and
ensuring continuity of supply;
ensure individual rights are upheld
encourage consumers to exercise choice by providing confidence that
services will meet minimum safety and quality standards;
ensuring the supports provided are of sufficient quality to meet NDIS
objectives; and
safeguard vulnerable people from serious safety failures and other harms.
D Reducing and eliminating Restrictive Practices
The National Framework for Reducing and Eliminating the Use of Restrictive
Practices, agreed by Governments in March 2014, recognises that use of restrictive
practices can be significantly reduced and in many cases, eliminated, consistent with
Australia's obligations under the UN Convention on the Rights of Persons with
Disabilities.
Governments also agreed that as part of the NDIS, a quality assurance and
safeguards system will be implemented and will include responsibilities for oversight
of and reporting on the use of restrictive practices by services providing supports to
participants. The Framework identifies a number of core strategies to reduce and
eliminate use of restrictive practices, including overarching principles to govern the
use of restrictive practices, development and regular review of individual positive
behaviour support plans, competency standards for providers and their staff, and
regular review and reporting on the use of restrictive practices in order to improve
future practice.
23
Recommendation 2; Chapter 12.
18
A number of sub-options to implement these strategies have been developed in order
to meet the objectives of:
ensuring restrictive practices are not used unnecessarily or excessively, and
that their usage declines over time;
upholding the rights of people with disability, including by allowing cases of
inappropriate use or abuse to be identified and responded to; and
promoting an adequate supply of supports to participants with high support
needs.
19
Section 4: Statement of Options
The table below summarises the elements of the problem statement that each set of
sub-options is intended to address. As noted above, most of the proposed regulatory
components address a number of the problem elements described in Sections 2 and
3 above.
Problem element/Sub- A B C D
option category Complaints Worker Registration & Restrictive
and Screening Code of Practices
serious Practice
incidents
Effective operation of the
NDIS market
User choice
Quality
Safety
Abuse, neglect, violence
and exploitation
The table below summarises the sub-options for each component. In each area,
Option 1 is to maintain the current arrangements that apply in each jurisdiction
currently (noting that this will generally require legislative amendments due to the
shift of funding responsibility from state and territory governments to the NDIA).
Option 2 in each case represents a no regulation scenario (ie voluntary or self-
regulatory approaches). Options 3 to 5 (where applicable) consider alternative
regulatory mechanisms (including co-regulation where applicable) and levels of
requirement that could be adopted.
Option 1 Option 2 Option 3 Option 4 Option 5
(status quo) (no
regulation)
A A1: Maintain A2 No A3: Internal A4: Na
Complaints current regulatory and external Statutory
and requirements requirements complaint authority
Serious in each handling oversightin
Incidents jurisdiction requirement g
s complaints
and serious
incidents
B1: Maintain B2 Risk B3: Require B4: B5:
B Worker current management employers Require Barred
screening requirements by employers to conduct referee person's
20
Option 1 Option 2 Option 3 Option 4 Option 5
(status quo) (no
regulation)
referee and checks + list
police independen
checks t risk-based
screening
(Working
with
vulnerable
people
check)
C C1: Maintain C2: Voluntary C3: C4: Quality C5:
Registratio current Certification Additional evaluation Quality
n and Code requirements certification Assuranc
of Conduct e
D Use of D1: Maintain D2:Registratio D3: Prohibit na na
Restrictive current n use of
Practices arrangement requirements restrictive
s only practices
outside
approved
Positive
behaviour
support
plans, and
require
providers to
report use
against
them
The content of the options is set out in more detail below.
A Complaints and Serious Incident Management
A number of sub-options around complaint and serious incident management have
been developed in order to address the issues identified in the problem section,
including promoting the effective operation of the NDIS market and user choice, as
well as addressing cases of consumer detriment arising from poor service quality,
safety failures and cases of abuse, neglect, violence and exploitation under the
NDIS.
The options range from moving to a voluntary approach, maintaining the different
arrangements currently in place in each jurisdiction (status quo), to options for a
nationally consistent regulatory approach. The options canvass both requirements
for suppliers to have internal complaints and serious incident managements systems,
as well as external dispute resolution and oversight mechanisms.
21
Option A1: Maintain current arrangements.
Currently arrangements vary between states and territories, but can include
requirements in funding contracts that suppliers have effective internal complaints
handling and serious incident recording mechanisms in place; complaints and
serious incident reporting systems administered by some departments that fund
disability suppliers; telephone hotlines for reporting abuse; and independent
complaints-handling bodies such as Ombudsmen or Disability Commissioners.
Option A2: No regulation
Under this option, suppliers of supports would develop and operate their own
complaints management and feedback systems. However, there would be no formal
requirement to do so. They would be encouraged and assisted to establish best
practice internal complaints processes through industry associations, and for many
this would be a sensible and commercially beneficial part of their business model.
Suppliers could also be encouraged (but not required) to subscribe to an external
disputes resolution service where an independent perspective would help to resolve
concerns.
Participants would also have recourse to state or territory fair trading departments,
the health complaints system, or professional registration bodies.
Option A3: Internal and external complaints handling requirements (co-
regulation)
Under this option, suppliers seeking registration to provide supports under the NDIS
would need to meet prescribed standards for their internal complaints systems, as
well as subscribe to an external complaints resolution body.
Option A4: Independent statutory complaints function in conjunction with
serious incident reporting
Under this option suppliers with higher risk scopes of operation would be required, as
a condition of registration, to demonstrate that they have effective internal complaints
and serious incident management systems in place. Where participants are unable to
resolve an issue directly with their supplier of supports, they could go to the statutory
complaints body for assistance. In addition, in order to ensure that serious cases,
particularly where participants are unable or unwilling to complain are addressed
appropriately, providers would be required to report serious incidents, including
allegations of sexual assault or violence, and unauthorised use of restrictive
practices, to the complaints body (in addition to police where a crime is alleged to
have occurred).
The key functions of the complaints body would include complaints handling,
referral, providing information, education and advice and supporting best
practice. It would also have powers to act on concerns relating to systemic
problems or risks with suppliers. The complaints function would operate in
conjunction with a serious incident reporting scheme broadly modelled on the current
22
NSW Reportable Incidents Scheme, which includes reporting and oversight
arrangements for allegations of abuse and other specified types of serious incidents.
Options not pursued: The Consultation RIS also included an option for the NDIA
to handle complaints about suppliers. Most stakeholders felt that this would
represent a conflict of interest given the role of the NDIA in directing participants
to suppliers of supports, and contracting arrangements with suppliers for certain
types of supports. They also suggested that the NDIA should be focused on
other priorities. A number of stakeholders pointed to the need to separate the
complaints function from the body responsible for funding, consistent with the
principles recently endorsed by the Commonwealth Government in response to
the Competition Policy Review (Harper Report). Accordingly the sub-option
placing the function in the NDIA was not pursued.
B Worker Screening
A number of options in relation to worker screening have been developed in order to
address the issues raised in the problem section in relation to the risk posed by
workers to participant safety. Screening of workers is one of a number of standard
tools used in recruitment processes in deciding whether someone might pose a risk
to participants. Worker screening systems are aimed at assessing whether someone
poses an unacceptable risk to people with disability based on past history and/or
identified risk factors. In particular, a common perpetrator characteristic for disability
abuse is previous offences, especially where a person with disability or other
vulnerable person was a victim; misconduct, particularly within the disability sector, is
another indicator of risk. The human resources literature across a range of sectors,
including adult disability services, strongly supports the use of worker screening,
using as broad a range of information as possible as part of the recruitment process.
There are a variety of approaches that can be adopted in relation to who does the
primary screening and what information is taken into account in the assessment. All
jurisdictions already require that those working with children with disabilities pass
Working with Children Checks.
Options for screening of those working with adults with disability provide for an
increasing range of types of information to be taken into account in the screening,
ranging from the information that is typically available to an employer (or commercial
screening agency), to a wider range of information that could only be considered by a
government screening unit due to privacy considerations. The sub-options consider
maintenance of current jurisdiction based requirements (status quo), a no regulation
option, and then alternative regulatory mechanisms aimed at excluding workers who
pose a risk to people with disability from the sector.
Option B1: Maintain current arrangements
Under Option B1, suppliers of supports would be required to comply with worker
screening requirements equivalent to those currently in place in each jurisdiction as a
condition of registration. This would mean that requirements would differ between
jurisdictions, ranging from requirements to undertake referee and police checks of
23
various types; provide information to and check excluded worker lists; or ensure
workers have working with vulnerable person clearances.
Option B2: Risk management by employers (no regulation)
Under Option B2, suppliers of supports would be encouraged - rather than required -
to have appropriate recruitment practices in place through industry based initiatives
such as the NDIS 'Zero Tolerance Program'. Government would promote best
practice approaches, but leave the decision about whether to use them to employers.
This option would represent a substantial reduction of regulation over current
requirements.
Option B3: Require employers to conduct referee and/or national police
checks
Option B3 would require employers to undertake referee checks and/or national
police checks for potential employees for certain roles. This requirement could be
embedded in registration/accreditation standards and processes.
Option B4: Worker registration (working with vulnerable people checks for
disability workers)
Option B4 is the development of a nationally consistent system of background
checking (screening) for those working with people with disability who are in
vulnerable situations. Under this option employers would continue to be required to
undertake referee checks, but there would also be:
an independent risk-based assessment of whether a potential employee
poses a risk, by an expert government screening unit;
assessment of a wider range of information about the person than an
individual employer (or private sector screening agency) can access and
ongoing monitoring to ensure any new information about the person is acted
on;
registration (licensing) of the person linked with online verification of the
person's current status; and
ongoing monitoring of people on the register against police records, employer
reporting of misconduct and other available information.
Option B5: Barred persons list
An approach with more limited scope than Option 4 would be to create an excluded
or barred persons list and require employers to:
notify the holder of the list of certain types of events involving an worker or
volunteer where the worker has placed the participant at an unacceptable risk
of harm; and
consult the excluded persons list prior to any appointment of an worker or
engagement of a volunteer in a role where they will undertake defined
activities.
24
The key difference between a 'working with check' (positive licensing) and a barred
persons list (negative licensing) is that a working with children or vulnerable persons
check assesses all of the available information about a person before they can be
employed in order to assess whether they appear to pose a risk to clients, as well as
responding to any new information that comes to light. Barring, by contrast, occurs
only after a particular adverse event (serious misconduct or a crime) has occurred
and is reported. Employers are required to verify that the person has not been
barred.
C Registration and Code of Conduct
A number of options have been developed in relation to registration requirements
under the NDIS Act to address the issues identified in the problem statement. In
particular, the Productivity Commission Report on Disability Care argued that there
need to be rules set by government that suppliers of supports would have to comply
with in order for the market to operate effectively. It said that these should be backed
up by monitoring and action to address breaches, including possible punitive
measures, as a necessary supplement to the 'direct discipline and reward' that
results from consumer choices.
For this reason, the NDIS Act requires suppliers providing supports to participants
(other than those who are self-managing) are required to be registered with the
NDIA. Those supplying supports to self-managing participants can opt not to seek
registration.
Registration and Code of Conduct sub-options consider a range of ways of
operationalising the National Standards for Disability Services under the NDIS in
order to promote the safety and quality of supports. A key issue is what type of
requirements suppliers should be required to meet as a condition of registration. The
options set out below range from voluntary quality certification arrangements,
verification of compliance with basic obligations, additional standards for higher risk
suppliers, quality evaluation processes and a quality assurance scheme.
Option C1 - Maintain current requirements
Currently the NDIS provider registration rules require providers to meet specified
requirements depending on the type of support they offer, as well as comply with
individual state and territory quality assurance requirements.
Option C2 - Voluntary certification
Option C2 is essentially a self-regulation approach, and would be a significant
reduction from what individuals and organisations wanting to provide disability
services must currently do to meet the NDIS registration requirements. Under this
option, individuals and organisations or businesses who want to offer NDIS supports
would confirm in their applications that they comply with any Commonwealth, state or
25
territory legislation, including legislation that is relevant to their profession or
business.
Providers who wished to obtain an independent certification that they meet the
national disability service standards could elect to participate in an independent
quality certification scheme. This would be voluntary under this option.
Option C3 - Additional conditions
Under this option, support providers would be expected to meet a limited number of
specified conditions, involving certification that they meet certain basic NDIS quality
assurance standards. The conditions required for registration would vary according
to the type of supports the supplier offers. While there are a number of factors that
determine the risk to any single individual, there are some types of supports where
risk is always greater because of the circumstances in which the support is typically
offered, for example, when supports are provided in a private or closed setting. In
general, most suppliers would be expected to have some form of complaints handling
system, recruitment practices which ensure that participants are not exposed to
workers who may cause harm and systems to protect the privacy of clients.
Option C4 - Mandated independent quality evaluation
Under this option some suppliers of supports would be required to participate in an
independent evaluation of their organisation and the supports it provides, including
how they contribute to meeting planned outcomes for participants. The focus would
be on the participants' experiences of the supports they receive. The assessment
would be independent of both the NDIA and the organisation.
Continuing registration of a supplier would be subject to the supplier behaving safely
and ethically. In particular, suppliers would be required to comply with the NDIS
Code of Conduct, which would also operate as a negative licensing scheme for
unregistered suppliers (i.e. suppliers to self-managing participants who choose not to
seek registration).
Quality evaluations would be undertaken by an independent evaluator who would
assess against indicators of effectiveness through observation and in-depth
interviews with individuals and families who use the supports. The evaluator would
be looking for views on the culture of the supplier as it is reflected in support delivery,
in particular whether participants are supported to realise their goals, enabled to
make choices, treated with respect and supported to participate. Other indicators
could be assessed by reviewing systems and records.
Option C5 - A quality assurance scheme.
Under this option, all providers, whether registered with the NDIA or not, will be
required to comply with applicable Commonwealth, state and territory laws, the NDIS
Code of Conduct, the NDIS complaints resolution and serious incident reporting
requirements (Options A1-4 above).
26
Additional requirements would apply for providers that wish to:
• deliver supports that involve direct staff-participant contact, lack supervision
(such as personal care support, respite or supported residential services), or
require specialist expertise; and/or
• support participants who are at heightened risk of abuse and neglect (for
example, people with cognitive disability, people who are non-verbal and
people requiring behaviour support).
These requirements would be set out in a modular set of NDIS Practice Standards.
There would a core module for all providers, and a number of specific modules
targeted at high risk supports. Both the Code of Conduct and the Practice Standards
would be aligned with the National Standards for Disability Services and would also
reflect the National Standards for Mental Health Services (for providers specialising
in mental health services).
All providers delivering higher-risk supports or supporting participants at heightened
risk will be required to gain third party quality assurance certification against the core
Practice Standards covering risk management, complaints systems, and effective
governance.
There would also be provision to monitor difficult-to-replace supports with a view to
managing continuity of supply issues.
D Reducing and Eliminating Restrictive Practices
A number of options have been developed to address the safety and human rights
issues (particularly freedom from abuse, violence, neglect and exploitation) raised in
the problem statement around restrictive practices. The canvass maintaining existing
state and territory regulatory regimes; relying on registration requirements only,
without a specific regulatory framework; and implementing a national regulatory
framework to give effect to the National Framework on Reducing and Eliminating
Restrictive Practices previously agreed by governments.
Option D1: Maintain current arrangements in place each jurisdiction.
As an interim measure, pending the development of the NDIS Quality and
Safeguarding Framework, governments agreed to continue to implement laws and
policies in their jurisdiction to give effect to the National Framework. These
arrangements could continue to operate under the NDIS in conjunction with
registration requirements for providers whose clients have Positive behaviour support
plans and/or may be subject to restrictive practices.
Option D2: Registration requirements only
Instead of legislation or policies, the National Framework could be given effect
through registration requirements for providers of supports to participants who
require Positive behaviour support plans.
27
Under this approach, the NDIA would assess which people with disability were at risk
of being subjected to restrictive practices, and include preparation of a Positive
behaviour support plan by a specialist practitioner in their NDIS package.
Behavioural support practitioners and providers charged with implementing them
would be subject to requirements reflecting the high risk associated with the use of
restrictive practices, consistent with whichever of the sub-options set out in C1-5
above is adopted. Providers would be subject to normal audit arrangements for
registration purposes, but there would be no other formal reporting or other
requirements.
Option D3: Prohibit use of most restrictive practices
Under this option, in addition to registration requirements, a legislative framework
would be put in place which would:
set out the key principles around the use of restrictive practices, requirements to
undertake a positive behaviour support plan and to use the intervention is the
least restrictive response available, that the risk posed by a particular intervention
is in proportion to the risk of harm posed by the behaviour;
define the practices that are covered by the rules and explicitly prohibit certain
practices;
require approval to be obtained for any restrictive practices included in Positive
Behaviour Support Plans, consistent with relevant state and territory legislation;
require decision-makers to ensure that the wishes of affected individuals are
understood and reflected in positive behaviour support plans;
Jurisdictions would continue to be responsible for approval processes around
decisions to include a restrictive practice in positive behaviour support plan, but the
overarching framework would ensure a professional independent assessment was
undertaken by a positive behaviour support practitioner and a positive behaviour
support plan was developed with a view to avoiding their use. Providers would be
required to report monthly on the use of restrictive practices in Positive Behaviour
Support Plans and a statutory oversight mechanism would include powers to
investigate incidents and intervene where necessary.
Options not pursued for approval and reporting
The Consultation RIS canvassed a range of options aimed at reducing and
eliminating the use of restrictive practices relating to the decision making process for
obtaining approval, or other forms of approval to include a restrictive practice in a
participant's positive behaviour support plan, as well as frequency of reporting on the
use of restrictive practices.
In the consultation process, however, many stakeholders said that, while
accountability was very important, they thought that the emphasis in the consultation
paper on who could make decisions was misplaced and instead the discussion
should be about how to build a quality services system that makes the use of
restrictive practices unnecessary. In addition, given the highly complex interactions
between Commonwealth, state and territory legislation and the coverage of this
28
legislation in terms of other service sectors in jurisdictions in relation to approval
arrangements, it became clear that developing a nationally consistent approach in
this component of the proposals was unlikely to be achievable in the timeframe
required for full scheme.
Accordingly, a more comprehensive and holistic approach, setting out key
overarching principles was developed to take account of stakeholder views, reflected
in the options described above, and the options set out in the Consultation paper
were not pursued.
Section 5: Impact Analysis
A Complaints and Serious Incident Handling
Option A1: Maintain complaints handling requirements currently in place in
each jurisdiction.
Most states and territories (the exceptions are Tasmania and Queensland) have
statutory complaints handling bodies for disability service issues in place, as well as
serious incident reporting systems which can supplement these by operating where
NDIS participants may be unable to communicate a complaint for themselves, or
where providers may need external assistance to handle allegations of abuse,
neglect and exploitation. All states and territories except Tasmania also require
providers to have an internal complaints handling process in place that is accessible
to the people using their services.
The table below summarises current arrangements for disability service complaints
(note that elements of systems are not mutually exclusive).
Table 5.1.1: Current complaints handling systems and requirements
Complaints systems and requirements Jurisdiction
Internal complaints system NSW, Vic, Qld, WA, SA, Tas, NT
requirements for service suppliers
Contracted external complaints Commonwealth
handling
Departmental complaints NSW, Vic, Qld, Tas, SA
review/assistance for participants
Independent disability complaint NSW, Vic, SA, ACT, NT, WA
handling body
As the above table illustrates, current arrangements vary to some degree between
states and territories.
In practice, however, the mix of formal statutory and informal regulation and oversight
(primarily through management of funding agreements and contracts) means that
differences between systems is likely to be more apparent than real in terms of their
overall regulatory impact. While Queensland does not have an independent statutory
29
complaints body for example, the Queensland Disability Act 2006 does establish a
formal complaints mechanism administered by the funding Department.
Similar issues apply to serious incident management systems and reporting. In
general, jurisdictions require serious incident reporting either through their ownership
of providers, and/or as a requirement in funding agreements or contracts with
disability services providers. While each jurisdiction has different rules about what
types of incidents need to be reported, the most onerous requirements typically
applied to higher risk services such as accommodation services, many of which have
been operated by Government owned providers (most of which are now in the
process of being privatised).
With the exception of NSW, serious incidents are generally managed separately from
complaints, within funding agencies, but in some cases (such as Victoria) with
independent review of incidents with a view to identifying causes and prevention.
The NDIS business rules for transition also requires registered providers to report
serious incidents to the NDIA.
Mechanics of maintaining the 'status quo'
In general current complaints and serious incident reporting schemes are conditional
on the supplier being a state or territory owned or funded service.24 However, these
requirements will cease to have effect as supports are funded through the NDIS
instead. Accordingly, maintaining the 'status quo' under the NDIS would require all
states and territories to pass (where schemes are managed through funding
agreements and contracts) or amend legislation.
It would mean that:
jurisdictions with legislative complaints schemes would need to amend their
legislation to ensure coverage of NDIS funded services (if they haven't already
done so);
those without legislative schemes (Tasmania) would need to put in place
powers to deal with them; and
the NDIA terms of business (or NDIS Act) would need to be changed to
require reporting of serious incidents to the relevant state or territory
department.
System fragmentation
A series of recent reports have highlighted serious weaknesses in some current
complaints management and serious incident management systems. The Victorian
Ombudsman, for example, found that although Victoria is generally regarded as
having one of the strongest oversight regimes in Australia, current arrangements are
"fragmented, complicated and confusing, even to those who work in the field",
24
Although some jurisdictions have already or are in the process of amending their enabling
legislation for the purposes of managing the period of transition to the NDIS.
30
making it difficult to work out who to make a complaint to.25 The recent Senate
Inquiry into Institutional Abuse of people with disability documented similar issues
across Australia.26
Continuation of multiple state-based systems that do not share information is likely to
perpetuate this fragmentation, and make it more difficult to identify emerging
systemic issues or issues relating to suppliers operating across jurisdictions that may
require compliance responses. Experience in the Home Insulation and Vocational
Education sectors suggests that this could potentially impact both on sector safety as
well as the financial integrity of the NDIS.
Efficiency and effectiveness
Several recent reports have pointed to lack of consistency between systems on who
can complain, what they can complain about, lack of integration with serious incident
management, lack of appropriate powers to respond and investigate complaints and
incidents, lack of whistle-blower protections and more. The reports have found that
has had the effect of both discouraging reporting meaning cases of abuse go
unreported, as well as reducing the efficacy of investigations. As a result the Senate
Inquiry concluded that:
"It is clear from the range of evidence presented to this inquiry from multiple
submitters in different jurisdictions across Australia, that no single state or
territory has yet devised an acceptable system of disability service complaints
reporting."27
In addition, current complaints mechanisms have not been developed in the context
of a market based system, and are likely to be inadequate to address the range of
issues that might arise under the NDIS. The use of a Code of Conduct (see Options
C5 below) as the primary basis for assessment of complaints would help educate
both providers and participants on reasonable expectations of performance, and
could drive a greater focus on the more important types of complaints.
A series of reports have suggested that there is scope to streamline and simplify
serious incident reporting requirements, and make more effective use of serious
incident reports, by managing the function in conjunction with complaints in order to
avoid fragmentation of the system, duplication and overlap, and ensure that
appropriate action is taken in response to reports.28
In addition, maintenance of current arrangements could lead to the imposition of
differential costs on suppliers of supports in the context of a national system.
Because the current system relies on a mix of informal regulation (through
25
Phase 1 Report, 24 June 2015.
26
Senate Community Affairs Committee, Violence, abuse and neglect against people with disability in
institutional and residential settings, including the gender and age related dimensions, and the particular
situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically
diverse people with disability, 25 November 2015, chapter 5.
27
Senate inquiry Report, chapter 5.31
28
See in particular the Victorian Ombudsman's Phase 2 Report, and the Senate Inquiry Report.
31
management of funding agreements) and formal regulation, it is not possible to
quantify the extent of the differential that might result if these arrangements were
translated to the NDIS. Nonetheless, the differences could inhibit suppliers from
operating across jurisdictions or lead to disincentives for new entrants in some
jurisdictions. In many cases it would also require suppliers to meet requirements that
may be unnecessary to a market environment (red tape), such as reporting on
internal complaints.
For these reasons maintenance of current systems is not considered tenable under
the NDIS.
Option A2: No regulatory requirements
This option would represent a substantial reduction in the regulation of the sector in
all jurisdictions, as well as in the level of investment in disability complaint resolution
over the current system. It would mean that:
suppliers would no longer need to demonstrate that they have adequate
complaint management and serious incident reporting systems in place;
suppliers would no longer be able to seek assistance on responding to serious
incidents, or be required to report serious incidents externally;
consumers would no longer be able to seek the assistance of Departmental
officers or disability-specific complaints bodies in resolving issues;
disability specific complaints bodies (which currently exist in all jurisdictions,
except Queensland and Tasmania) would be abolished.
As a result, suppliers would not face any compliance costs under this option.
Effectiveness
Currently some disability related services, for example mainstream services
purchased directly by the person with disability, are covered by the Australian
Consumer Guarantees, and this coverage is likely to expand significantly under the
NDIS. The level of assistance that can be provided to consumers by the Australian
Competition and Consumer Commission and state and territory consumer protection
bodies, such as fair trading offices, however, varies.
In most cases the emphasis is on providing people with information about their rights,
including how to make and resolve a complaint. They may also be able to assist
consumers in trying to negotiate a solution with traders (conciliation) depending on
resources and priorities but if this is not successful, the consumer will normally need
to pursue their claim themselves. This normally means going through a small claims
court, tribunal or Magistrates court. The processes for pursuing claims under
$10,000 in value are usually informal (lawyers usually cannot participate).
Consumers are normally required to pay an application fee, though, and costs are
typically range from around $50 to $700 depending on the size of the claim.
The need to go to a court or tribunal, and pay a fee, can be a significant disincentive
for consumers, and would represent a particular challenge for many people with
disability. A reluctance or inability to complain or pursue matters is likely to lead to
32
less feedback to providers and the potential to fail to take action to prevent future
problems, leading to significant increase in serious adverse incidents as well as the
persistence of less serious quality issues.
In recognition of these issues, Governments have typically put in place additional
protections for consumers when moving to more market oriented delivery
arrangements, including complaints resolution bodies.
In addition, Fair Trading Offices do not have appropriate powers or jurisdiction to
invest many of the issues currently handled by disability complaints bodies such as
allegations of violence, abuse, neglect or exploitation. While some matters need to
be referred directly to police, difficulties in establishing the levels of evidence required
for a formal prosecution (for example where witnesses are deemed unable to give
evidence) could mean that a large number of cases are unable to be pursued.29
Distribution effects
Participants: This option is likely to lead to a substantial increase in consumer
detriment because consumers may be reluctant or unable to complain, allowing
inappropriate behaviour to escalate, or allowing perpetrators to continue to offend so
that they are detected much later than would occur under a more robust complaints
system. This could be compounded by suppliers attempting to cover up problems to
protect their reputation. In addition, there will be less scope for regulators to identify
emerging problems at the supplier and systemic level, and take appropriate
preventative action.
Impact on suppliers of supports: Under this option suppliers would no longer have to
meet specified standards in relation to their internal complaints mechanism, or report
on these to funding or oversight bodies. Accordingly, the option would involve very
low compliance costs for internal systems, as suppliers of supports would have full
flexibility as to the complaints system they implemented.
For suppliers, effective internal complaints systems that encourage feedback, advice
and complaints can be a source of value, driving innovation and quality improvement:
A high level of complaints can mean that the supplier encourages feedback, and acts
on it, in turn encouraging more feedback:
• They can mean that systemic problems are identified and acted on early,
reducing adverse impacts on clients. It can also lead to cost reductions and
service quality improvement - even small productivity gains are cumulative
and can be large in terms of the overall impact on the system
• Customers who complain tend to be more satisfied than customers who are
unhappy with the service but don't speak up
• There is strong evidence that complaints well-handled can turn disgruntled
customers into very loyal, highly satisfied ones. And word of mouth
recommendations can then lead to additional business.
29
See for example ALRC, DP 81, Equality, Capacity and Disability in Commonwealth Laws; Victorian
Equal Opportunity and Human Rights Commission, Beyond doubt: the experiences of people with
disabilities reporting crime, July 2014.
33
However, numerous studies attest that market failure typically leads to
underinvestment in internal complaints functions, particularly where the cost of
changing providers is high or there is a lack of competition.30 In addition, suppliers
concerned with making only a short-term profit and then exiting the market, as well
as those with considerable market power (especially, for example, in regional and
remote areas), may significantly under-invest in complaints resolution systems. This
could have adverse impacts on productivity for the system as a whole, as suppliers
lack the feedback necessary to make service improvements.
Experience in other sectors and overseas suggests that, in the absence of an
effective external complaints resolution mechanism, suppliers' overall costs could
actually increase significantly. Where consumers do pursue their cases, they will
have to do so through mechanisms with higher costs, such as tribunals and the
courts, so that suppliers may incur both legal and time costs. Alternatively
consumers may choose to make their case through social media and other
mechanisms, exposing suppliers to the potential for reputational damage and lost
custom.31
The lack of quick resolution and redress avenues could undermine consumer
confidence and make participants reluctant to try new entrants to the market. This
could undermine competition, making it difficult for new entrants to gain market
share.
Impact on government: This option could generate a substantial additional workload,
and hence resource pressures, for state and territory fair trading offices (assuming
they had or were given jurisdiction), even before any additional issues generated by
the shift to a market system are taken into account. It is also likely to lead to
increased pressure for funding of advocacy support.
In addition, in the absence of a statutory function it can be expected that:
• consumers (families and advocates) will have increased time and other costs
in pursuing complaints;
• Offices of Fair Trading/ACCC will face a new and large workload, since the
shift to a market based system will bring many disability services under
Australian Consumer Law (ACL) for the first time;
30
See for example ACCC Submission to the Harper Inquiry; Patrick Xavier, Behavioural Economics and
Customer Complaints in the Communications Industry, A Report prepared for ACMA, 2011; UK Legal
Ombudsman, The Business Case for good Complaints Handling in Legal Services, Report, 2013; Claes
Fornell and Birger Wernerfelt, A Model for Customer Complaint Management, Marketing
Science, vol 7 (3), Summer 1988, 297-298; Piangham Liang, Exit and Voice: An Economic Theory of
Complaint Management, SSRN, 2010.
31
In Australia the Telecommunications Ombudsman function was introduced in response to the
Industry's own recognition of this:
https://www2.le.ac.uk/departments/law/research/cces/documents/Complainthandling-
PrinciplesandBestPractice-April2007_000.pdf. Similar mechanisms have been introduced in a number
of other industries. Se also UK Department of Business Innovation and Skills, Alternative Dispute
Resolution for Customers, March 2014.
34
• more civil cases may go the courts as private actions (small
claims/magistrates for ACL, plus cases outside the purview of consumer law);
and
• some consumer issues that impact on the scheme may have to be pursued by
the NDIA itself (eg overcharging, services not delivered) to protect scheme
sustainability.
Consultation
There was almost no support for this option in the Consultation process. The
overwhelming majority of stakeholders felt that suppliers' internal complaints systems
would, in isolation, be inadequate to safeguard the rights of people with disability
because there is often a severe power imbalance between suppliers and participants.
This is likely to result in some suppliers of supports having insufficient incentives to
resolve complaints satisfactorily. Stakeholders also noted that people are often
reluctant to complain because of fear of retribution or negative past experiences with
internal complaints processes. These concerns are backed up by numerous case
studies in the various recent inquiries into the sector.
Overall impact
This option could seriously jeopardise consumer trust in the shift to a market based
system and is not considered tenable.
Option A3: Internal and external complaints handling requirements
Under this option, suppliers could be required to comply with the Australian Standard
on Complaints Handling or equivalent requirements.32 This could involve:
informing participants of their right to complain, and to lodge a complaint,
including who to appeal to if they are not satisfied with the response
providing assistance to customers to formulate, lodge and progress a
complaint
specifying the response times for individual steps in its complaints-handling
process.
responding to complaints within a specific timeframe
analysing complaints regularly to identify recurring problems.
In addition, there would be an independent complaint review process under this
option. This could take the form of an industry-initiated complaints body, such as the
Telecommunications Industry Ombudsman. The telecommunications scheme is run
by a private, industry-backed company, but supported by legislation that requires all
telecommunications suppliers to be members of the scheme, and gives the
Ombudsman powers to collect any documents or information necessary, and make
32
AS ISO 10002-2006. An example of specific requirements based on it can be found in the
Telecommunications Consumer Protections Code, 2015:
http://www.commsalliance.com.au/__data/assets/pdf_file/0019/50914/TCP-C628_2015-FINAL.pdf
35
binding decisions on claims up to $50,000, and recommendations to the statutory
regulator on larger ones.33
Effectiveness
While this option could potentially provide an effective dispute resolution mechanism
for service quality related matters, which is the main focus of most of the current
complaint bodies, it would not be a suitable mechanism for oversighting the handling
of more serious adverse incidents such as allegations of abuse due to the privacy
and other legal issues these can raise, and the types of powers necessary to address
them. The lack of an adequate focus on responses to allegations of sexual assault
and violence in current complaints bodies has been the subject of considerable
criticism by recent reviews, including the Final Report of the Victoria Parliament's
Inquiry into Disability Services.34 This option would also fail to address criticisms of
fragmentation in the disability oversight system.
Compliance costs
Obtaining the appropriate certification and audit against the requirements would be a
part of the requirements for registration process, and so is included in the costs for
registration options (Option C1-5 below).
The objective would be to ensure that most complaints are resolved by the supplier
and the complainant themselves, without external aid, by requiring suppliers to have
best practice internal systems in place to receive and respond to feedback. The
external complaints body could operate on a fee per complaint received basis (as the
Telecommunications Ombudsman does), making its costs potentially avoidable if the
matter is effectively managed by the supplier.
Disability related complaints handling is likely to be more expensive to manage than
other industries as many complainants will need extra help to access systems and be
supported through any external process. Nonetheless, an indication of the likely size
of costs can be gained from the Telecommunications Industry Scheme, where fees
range from $44 to $3,100 per complaint (as at July 2015) depending on the level of
complexity of the complaint, payable by the supplier. This would represent a new
cost to suppliers, since most jurisdictions currently have statutory complaints
functions that operate at no cost to suppliers or complainants.
Distribution analysis
Impact on Participants: The Telecommunications model has the advantage of
providing a free and quick resolution service for typical customer complaints in a
market environment, and has been successful in identifying and suggesting ways of
tackling systemic service issues, leading to a reduction in complaint numbers over
33
https://www.tio.com.au/about-us
34
May 2016, see especially Chapter 7.
36
time.35 This type of approach would not, however, adequately address the serious
concerns raised by people with disability in the series of recent inquiries on the
handling of serious incidents such as cases of abuse and violence.
Impact on Suppliers of supports: This option would require suppliers to have internal
complaints systems in place. As this is a requirement under current arrangements
this element would not increase compliance costs over the status quo. New entrants
would need to invest in appropriate systems, but the cost would be low, and would
almost certainly be more than offset by the value of the customer intelligence
received from the feedback process.
Option A3 would also involve establishing an external disputes resolution
mechanism, presumably on a cost recovery basis. This could involve a fee per
complaint and/or some upfront contribution paid by suppliers. While the fee would
constitute a barrier to entry, it would likely be very low. Moreover if the fee is only
incurred if a complaint is lodged (as under the Telecommunications scheme at
present), it would provide an incentive for suppliers to resolve complaints effectively
with their clients, and so could be pro-competitive in impact. Suppliers would,
however, still be exposed to the risk of reputational damage arising from
inappropriate handling and investigation of more serious complaints.
Consultation
As for Option A2, this option received little support. Stakeholders did not feel that an
industry body would have sufficient credibility in the current environment.
Stakeholders almost universally felt that an organisation with stronger powers than
typical industry schemes was needed to address and oversight the handling of
complaints about abuse, violence, exploitation and neglect in particular.
Stakeholders were also concerned that creation of a multi-level structure, for
example with an oversight body supervising an industry-based scheme, would
perpetuate the fragmentation of regulation in the sector, and lead to complaints
'falling through the cracks'.
Overall assessment
This option would not provide an adequate mechanism for addressing serious
allegations of adverse incidents, and is unlikely to achieve the other objectives of a
complaints system in the NDIS environment.
Option A4: Independent statutory complaints function (in conjunction with
serious incident reporting).
Efficiency
Complaints and serious incidents are closely linked. While the assessment
processes for complaints and serious incidents will differ, the content of the two
35
New complaint numbers fell from 193,702 in 2011-12 to 124,417 in 2014-15, TIO Annual Report.
37
sources of information about participants and their suppliers are likely to overlap
substantially. In particular, serious incidents are likely to give rise to formal
complaints, particularly where they are handled badly. Conversely, serious incident
reports may uncover an incident where a participant was not able to make a
complaint or take action themselves, for example because of barriers to
communication, isolation and/or dependence on the person who may have abused
them.
Accordingly, this option would promote the adoption of an integrated approach to
managing sources of consumer detriment, broadly following the NSW model where
the Ombudsman has responsibility both for managing complaints and serious
incidents, but adapted as necessary to reflect the NDIS environment.
Box: NSW Ombudsman Act Part 3C
NSW Reportable Incidents Scheme was introduced in 2014. It was designed to
address common criticisms of serious incident oversight processes repeated in a
stream of recent reports, including during the consultation process for the NSW
Disability Inclusion Act 2014 and is generally regarded as best practice.
In NSW, in addition to the role in monitoring serious incidents played by the
Department of Families and Community, there is a disability reportable incident
legislation which allows the NSW Ombudsman to:
• receive and assess notifications concerning reportable allegations or
convictions;
• scrutinise provider systems for preventing reportable incidents, and for
handling and responding to allegations of reportable incidents;
• monitor and oversight provider investigations of reportable incidents
• respond to complaints about inappropriate handling of any reportable
allegation or conviction;
• conduct direct investigations concerning reportable allegations or convictions,
or any inappropriate handling of, or response to, a reportable incident or
conviction;
• conduct audits and education and training activities to improve the
understanding of, and responses to, reportable incidents, and
• report on trends and issues in connection with reportable incident matters.
Effectiveness
Responsibility for resolving complaints should rest primarily with the supplier and the
participant. It is important that both parties are aware of their rights and obligations,
and that the system encourages the parties to resolve matters between themselves
where possible. However, power imbalances and other factors can create
significant barriers to resolution. As such, there will need to be capacity for people to
get advice and support from others, including informal and formal advocates. An
independent statutory complaints function was identified by an overwhelming majority
of stakeholders as the best way of overcoming barriers to resolution of complaints.
38
Abuse, violence and neglect: Where complaints or allegation of abuse, neglect,
violence and exploitation, or other extremely serious matters such as unauthorised
use of restrictive practices arise, this option would provide capacity for a quick and
effective response that is well co-ordinated with other safeguards in the system.
Other sources of consumer detriment: In the consultation process some people with
disability and advocates were concerned that some people would feel too intimidated
or fearful to raise even relatively minor issues with their suppliers of supports. An
independent complaints commissioner could play a key role in providing education
and support for participants to understand their rights, and help them negotiate with
suppliers of supports. Public reporting on complaints could also help increase the
confidence of participants in the system, as well as provide information for them to
take into account when choosing suppliers.
Suppliers of supports: External scrutiny of complaints unable to be resolved by
suppliers, as well as serious incidents, is likely to lead to a more optimal investment
in management of these processes. The costs involved in establishing appropriate
systems are likely to be minimal and so should not constitute a barrier to entry as this
option does not represent a significant change from current requirements overall [1],
but could reduce compliance costs to some degree through the adoption of an
approach more targeted to risk.
As at present, providers would need to establish effective internal systems. The
requirements would be consistent with their size and level of risk, assessed as part of
the registration process (see Options C1-5), and the effectiveness of their internal
systems would be judged through quality assurance audits (in conjunction with any
other registration requirements). In some cases this would lead to a reduction in
costs, as providers will not need to undergo multiple certifications where they operate
across jurisdictions or sectors.
While providers could incur time costs associated with complaints lodged with the
complaints body, this would provide an appropriate incentive to manage complaints
effectively internally, in order to prevent them being escalated.
There is also scope to reduce the compliance burden on employers by making
reporting systems faster and easier to use by adopting a 'report once/use many
times' model for serious incident reporting, and utilising a more efficient reporting
system (such as simple online reporting application along the lines used by Worksafe
Australia) rather than current outdated systems highlighted by recent inquiries.
Accordingly, to minimise the regulatory burden of reporting, the plan is for an online
reporting system to be developed, building on the work that NSW has already
undertaken on this. The system would, subject to compliance with privacy laws, be
accessible at different levels to different stakeholders.
Government: Under this option existing jurisdiction disability specific complaints
bodies would be replaced by a single national complaints function, potentially
generating efficiencies. In addition, this option has benefits for Government in
dealing with complaints earlier, reducing the flow-on costs to courts and other
complaints handling bodies such as the ACCC.
39
The NSW experience suggests that formal legislative requirements for reporting of
serious incidents is likely to lead to a significant increase in the number of serious
incidents reported.36 Early experience of the New South Wales reportable incident
system, for example, has found that reporting increased substantially over past
levels, and identified ten times more cases of abuse, violence and neglect have been
identified through serious incident reporting than through the complaints system.37
This suggests that there is considerable scope to improve the handling of incidents,
and prevent them from occurring by identifying root causes. As mishandled serious
incidents - including failure to report crimes, to take appropriate action to ameliorate
the effect of the incident on the victim, or to ensure injuries are properly treated - can
be a source of serious detriment to participants, as well as increase the risk of the
type of incident recurring, any additional costs (which are expected to be negligible
see below) due to increased compliance are likely to be easily be offset by the
benefits of improved management of serious incidents and early compliance action.
Compliance costs
This option does not represent a significant change from current requirements
overall, but could reduce compliance costs to some degree through the adoption of
an approach more targeted to risk.
As at present, providers would need to establish effective internal systems. The
requirements would be consistent with their size and level of risk, assessed as part of
the registration process (see Options C1-5), and the effectiveness of their internal
systems would be judged through quality assurance audits (in conjunction with any
other registration requirements). In some cases this would lead to a reduction in
costs, as providers will not need to undergo multiple certifications where they operate
across jurisdictions or sectors.
While providers could incur time costs associated with complaints lodged with the
complaints body, this would provide an appropriate incentive to manage complaints
effectively internally, in order to prevent them being escalated.
There is also scope to reduce the compliance burden on employers by making
reporting systems faster and easier to use by adopting a 'report once/use many
times' model for serious incident reporting, and utilising a more efficient reporting
system (such as simple online reporting application along the lines used by Worksafe
Australia) rather than current outdated systems highlighted by recent inquiries.
Accordingly, to minimise the regulatory burden of reporting, the plan is for an online
reporting system to be developed, building on the work that NSW has already
undertaken on this. The system would, subject to compliance with privacy laws, be
accessible at different levels to different stakeholders.
36
Oral advice, 22 March 2016.
37
The NSW Ombudsman's Annual Report 2014-15 noted that between 3 December 2014 and 30 June
2015, the Ombudsman received 350 reports of disability serious incidents, and 21 complaints relating
to reportable serious incidents.
40
Consultation
The majority of stakeholders identified a need for an independent complaints body.
Most jurisdictions already have independent statutory complaints bodies in place,
and with the development of a quasi-market, the need for effective dispute resolution
mechanisms is likely to become more acute. Independence, it was suggested, would
give people confidence in the system, provide assurance of unbiased assessment,
and support transparency and accountability. Many stakeholders suggested that an
independent body was best placed to help protect whistle-blowers.
In the Consultation process the reasons given for this view included that suppliers'
internal complaints systems are inadequate because there is a power imbalance
between suppliers and people with disability, and people are often reluctant to
complain because of fear of retribution or negative past experiences with suppliers'
internal complaints processes. These concerns are backed up by numerous case
studies in the various recent inquiries into the sector.
There was also wide agreement on the functions it should include. A key theme,
however, was the importance of serious incident reporting as a component of the
oversight system. A number of Submissions to the Consultation process, as well as
recent reports have raised concerns about the capacity of some providers to
recognise, respond to and effectively manage serious incidents, including abuse,
neglect and unexplained injuries.38 The NSW Ombudsman, for example, found that
there was a need to provide more education, training, guidance materials and
ongoing monitoring for providers, for example on the handling of client-to-client
assaults and decisions on reporting to police. Similar issues have been documented
by the Victorian Ombudsman, who also noted that there appeared to be substantial
under-reporting of incidents. The Senate Inquiry Report endorsed these concerns,
including the need for substantial culture change around the reporting of serious
incidents.
Stakeholders in the consultation process argued that a reporting and independent
oversight system for serious incidents is an important and necessary component of a
comprehensive framework for preventing, and effectively responding to, abuse,
neglect and exploitation of people with disability. Rationales for this included:
ensuring that organisations have effective internal governance and
accountability mechanisms for serious incidents, including incidents or
allegations of violence, abuse and neglect, in place;
ensuring that that the safety and wellbeing of participants is the highest priority
when a serious incident occurs;
ensuring serious incidents involving people with disability are identified and
responded to in a timely and appropriate way; and
preventing serious incidents occurring in future, including by identifying
systemic issues for prevention and developing a comprehensive picture of the
extent of violence, abuse, neglect and exploitation of participants.
The Submission from the NSW Ombudsman noted that common problems relating to
the handling of serious incidents included:
38
Senate Submission, pg 8 -9
41
inconsistent processes and systems;
ongoing failures to address key risk factors;
inadequate training for staff in recognising when serious incidents have
occurred;
inadequate responses to incidents, including failure to report suspected
crimes to the police; and
failure or significant delays in advising family members of incidents.
A number of stakeholders also stressed the importance of analysing serious
incidents with the aim of mitigation and prevention. Several stakeholders argued that
the lack of consistent national collection and analysis of data on serious adverse
incidents is a critical weakness in the current system. They also noted that without it,
it will be impossible to assess the effectiveness of, and ongoing need for, the quality
and safeguarding system as a whole. They argued that serious incident reporting
also has an important role to play in ensuring that the system as a whole is genuinely
focused on the needs of people with disability.
B Worker Screening
Option B1: Maintain current arrangements
Currently all Australian jurisdictions require disability providers to undertake some
form of worker screening for disability services:
Children with disability: All jurisdictions require those working with children to
undergo risk-based assessments by a government screening agency
(Working With Children Check); and
Adults with disability: All jurisdictions also have requirements that apply to
those who work with adults with disability in the services they fund. The
content of requirements, however, varies considerably.
Historically most jurisdictions have relied on requirements to undertake a
combination of referee reports and police checks. However, a series of recent official
reports, as well as a number of other studies, have highlighted inadequacies in some
of the current staff recruitment requirements for those working with people with
disability.39 In response to these concerns, as the Table below illustrates, four
39
Report of the NSW Ombudsman, More than board and lodging: the need for boarding house reform
-- Special report to Parliament, October 2011; Disability Services Commissioner (Vic), Safeguarding
people's right to be free from abuse: key considerations for preventing and responding to alleged staff to
client abuse in disability services, Learning from Complaints Occasional Paper No. 1, June 2012;
Victorian Equal Opportunity and Human Rights Commission, Beyond doubt: the experience of people
with disabilities reporting crime -- Research findings, July 2014; SA Health and Community Complaints
Commissioner, Report on HCSCC's role in contributing to improving the safety and quality of disability
services provided to vulnerable people, March 2013; The Royal Commission into Institutional Responses
to Child Sexual Abuse, Interim report, July 2014; Victorian Ombudsman, Reporting and investigation of
allegations of abuse in the disability sector: Phase 1 - the effectiveness of statutory oversight, June
2015; Parliament of Victoria, Inquiry into Abuse in Disability Services, Interim Report, August 2015;
42
jurisdictions have now put in place requirements for the centralised screening of adult
disability workers:
Victoria has introduced a register of barred people for state-funded disability
accommodation services, based on convictions and/or past work history;
Queensland's yellow card system excludes some persons from the sector on the
basis of their criminal and other history.
South Australia and the ACT have adopted risk assessment based disability
worker screening.
Table 5.2.1: Screening requirements for those working with people with disability*
Requirement(s) Jurisdictions
Pre-employment
(state/territory) Police check before employment Vic, NT, Clth
WA, NSW
National police check before employment
International police check Vic
Referee checks Vic, NSW
Fit and proper person test (includes referee and police check) Tas**
Working with Children checks for child related disability supports Vic, WA, NSW,
SA, ACT
Excluded persons list (accommodation services only) Vic
Independent assessment of criminal history (including spent Qld
convictions)
Disability worker screening (independent risk assessment of SA, ACT
police and range of other information held about the person)
Ongoing monitoring
Requirements to undertake fresh police checks/renew clearance NSW, ACT, SA,
Qld
Live monitoring of criminal record Qld
*Jurisdictions with more than one requirement are listed in italics.
**Legislation makes provision for a risk-based assessment, but this has not yet been
implemented.
Effectiveness
The differing systems between states and territories result in significantly different
levels of protection of people with disability across Australia. The Victorian
Parliamentary Inquiry, for example, highlighted a case where a provider complied
with a requirement to conduct a (state) police check, which showed no convictions for
the worker and so hired him as a carer. When the person was subsequently arrested
Australian Senate, Violence, abuse and neglect against people with disability in institutional and
residential settings, including the gender and age related dimensions, and the particular situation of
Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse
people with disability, November 2015.
43
for alleged abuse, it emerged he had been previously been convicted of violence and
sex offences in New South Wales. A requirement to undertake a national police
check or a working with vulnerable persons check (as required in some other
jurisdictions) would have identified the convictions and potentially prevented the
subsequent offences.40
A particular issue in the disability sector arises when police find credible evidence of
abuse, but are unable to prosecute because of issues relating to the ability of victims
to give evidence to a standard acceptable to the court. In this situation, referee
reports and police checks will generally not be sufficient to identify the risks
associated with the person, resulting in potentially preventable cases of abuse and
violence occurring (see Option 3 below).
Distribution and competition effects
The differing requirements mean that supplier costs differ by jurisdiction. This could
lead to distortions in the market given that prices for NDIS supports are generally set
on a national basis.
In addition, because there are significant differences in requirements (including in the
way that the central screening systems work), there is no mutual recognition between
systems. This means that suppliers and/or workers may need to obtain clearances in
two or more jurisdictions where they operate across state borders or move between
jurisdictions, pushing up costs further and acting as a disincentive to operate on a
national basis.
There would also be an impact on Government. In most cases current requirements
for those working with adults with disability are tied to funding agreements and
contractual arrangements. It would be possible in theory at least, to translate these
into conditions for registration, and audit them in conjunction with other quality
assurance requirements. It would however require states and territories with central
assessment systems (Victoria, Queensland, South Australia and ACT) to maintain
their existing systems beyond the transition period currently agreed. In the case of
the three latter jurisdictions, screening arrangements operate under legislative
systems on a (partial) cost recovery basis and so this would be feasible. Victoria's
Worker Exclusion Scheme however currently operates on an administrative basis
tied to contractual agreements and there would be costs and practical difficulties
associated with translating it into a legislative scheme.
Accordingly, for both efficiency and effectiveness reasons, a system that maintains
the status quo is unlikely to be sustainable.
Option B2: Risk management by employers (self-regulation)
This option would represent a substantial reduction of regulation over current
requirements.
40
Vic Parliamentary Report, pg 13. Victoria subsequently introduced a worker exclusion scheme for
accommodation services.
44
Under this option, there would be no formal compliance costs, however, in the
absence of formal requirements, many suppliers of supports would be likely to
undertake police and other checks themselves as part of their risk management
strategy in any case. Not all will do so though, and in some cases the checks
undertaken may be inadequate.41 A survey of existing providers undertaken for the
impact analysis suggests that as many as 20-50% of employers might decide not to
continue to do police and referee checks in a voluntary system.
The risk that many employers will fail to do adequate checks is supported by a
literature review of employment screening practices as a prevention measure for
child abuse commissioned by the Royal Commission on Institutional Responses to
Child Abuse. It found that criminal background checks are universally considered to
be a necessary, but not sufficient, component of pre-employment screening.42 It also
pointed to many cases where failure to adopt such practices led to unsuitable people
gaining employment and abusing the children in their care.
In addition, the evidence suggests that employers may over-estimate their capacity to
identify and deal with predatory behaviour, or avoid abuse through action on
organisational culture. The Royal Commission on Institutional Responses to Child
Abuse, for example, has found that perpetrators deliberately seek out positions of
power over those least able to speak up for themselves, and go to great lengths to
cover their tracks in the process. While an employer may feel they know the person
well enough to make a judgment without the need to do checks, the consensus of
studies on the subject generally suggests that assessment of past criminal history is
a relevant indicator of risk.43
Distribution effects
Under Option B2, it is assumed that most employers would no longer be able to rely
on checks managed centrally by governments for those working with adults (where
these currently occur) but would instead generally establish individual risk
assessment systems. They would also incur the costs of obtaining police and
referee checks and reviewing them. Nonetheless the option would allow employers
to maximise their flexibility, eliminate mandated compliance costs, and allow
suppliers to develop their own low cost systems. It would also provide more flexibility
to employ those with a criminal history with a prospect of rehabilitation (including
those who may have lived experience of disability). 44
This option would, however, expose participants to a significantly greater risk of
serious adverse incidents where providers chose not to implement robust systems.
41
NOUS Group, Impact Analysis Report.
42
Literature review prepared for the Royal Commission on Institutional Responses to Child Abuse,
Parenting Research Centre and University of Melbourne, Scoping Review: Evaluations of Pre-
employment Screening Practices, February 2015.
43
Parenting Research Centre, Scoping Review, op cit.
44
B Naylor, Living Down the past...2012 cited by NOUS, pg 92.
45
The costs of promoting best practice by Government are expected to be nominal
under this option. There could however be indirect costs as anecdotal evidence
suggests that in those states where Working with Vulnerable People's checks are not
required, many employers are requiring staff to obtain Working with Children
clearances instead as a proxy. These costs have not been included in the analysis
however.
Competition effects
A risk in this option is that some suppliers of supports may adopt a higher risk
approach to recruitment to expedite the process and reduce their costs, putting
pressure on other suppliers to follow suit in order to remain competitive, and
potentially undercutting suppliers with a lower risk threshold.
Consultation
Stakeholders overwhelmingly (and all but unanimously) thought that Option B3 was
inadequate in this sector, and would send the wrong signal to suppliers of supports
about the importance of good recruitment and selection practices.
Overall impact
The option would be likely to result in a substantial increase in the number of serious
adverse incidents over current levels. In comparison, other options centralise the risk
management function and afford significant cost savings.
Option B3: Require employers to conduct referee and/or national police
checks
Effectiveness
Currently use of referee and police checks as a screening device by employers is
generally mandatory (except in ACT, Queensland and SA which have central
screening systems) and is regarded as an essential element of good practice, and an
important part of the recruitment and selection process.
Referee and police reports do, however, suffer from a number of key limitations. In
particular, employers:
may not be able to access the information necessary to make good judgments
for privacy, security or legal reasons
may not have the expertise to make good judgments on the information they
do have
may choose to disregard the adverse information about the person for
inappropriate reasons.
Lack of access to critical information is perhaps the most important of these issues.
Even where adverse information about the person is known to a previous employer
46
or to police, employers may not be able to access it, because of privacy protections
and other constraints.
Table 5.2.3: Screening information strengths and weaknesses
Information type Importance Accessible Problems with usefulness
to
employers?
Referee reports High - past Subject to Applicant may omit the name
behaviour is limitations of a person who will give an
often a good unfavourable report.
guide to
future Applicant can provide the
behaviour, name of a friend or other
and employer person, who might represent
feedback can themselves as a former
be a better employer.
predictor than
interview Privacy protections under the
performance Fair Work Act mean the
employer cannot normally give
a referee report unless the
employee agrees. 45
Employers may have entered
a binding agreement not to
disclose past misconduct as
part of a FWA conciliation
process.
Employers may give a positive
report even where misconduct
had occurred.
Criminal convictions
High - while In part Excludes spent and quashed
a relatively convictions, juvenile offences,
small etc.
proportion of
applicants Assessing relevance of a
are likely to conviction to the job requires
have good judgment - people who
convictions, know the employee may
they may be unwisely choose to discount
extremely past history, while other
45
The Fair Work Ombudsman's guidance to employers in relation to referees, for example, suggests
that workplace privacy protections mean that generally, a former employer should not disclose
information about the former employee without the person's consent.
https://www.fairwork.gov.au/about-us/policies-and-guides/best-practice-guides/workplace-
privacy#bestpractice
47
important in employers may be unduly risk
assessing averse
risk
'Enhanced' police
information - - for High - No Protected for privacy reasons,
offences alleged to experience may only be accessed by
have been with working approved Government
committed, with children screening agencies.
regardless of the checks
outcome of those suggests that
charges, such as a small but
acquittals, significant
dismissed, number of
withdrawn and people with
pending charges adverse
convictions, information
that would
not be
disclosed in a
standard
police check
will apply for
clearance
Workplace High, as No - unless a Key issue is capturing the
misconduct reports many cases person has information - mandatory
of misconduct been reporting provisions exist for
may not be deregistered children, but not generally for
able to be or is subject adults with disability.
proved to a to public Information on workplace
criminal restrictions misconduct could also be
standard on practice captured through serious
through a incident reports and
professional complaints (Part II).
association
Distribution analysis
Option B3 is expected to generate substantial benefits compared to Option B2, as it
would be expected to reduce serious incidents rates by requiring all employers to
undertake checks of workers, including paying for police checks. It generates
positive benefits for employers (in costs avoided from redress), government and
participants.
Impact on compliance costs
Under this option employers would need to obtain police checks (which cost in the
order of $50 per person) and referee checks. However, these costs are arguably a
48
normal part of doing business that most employers would undertake in the absence
of regulation. Compliance would be verified through the registration process (see
Options C1-5 below).
To the extent that Working with Vulnerable People Checks/Yellow Card costs are
generally paid by employees rather than covered by employers, it could involve an
increase in the compliance costs borne by employers in the ACT and Queensland
jurisdictions (though employers may choose to undertake these checks in addition to
the clearance).46
As all employers would be subject to the same requirements, this option is unlikely to
impact on competition.
Consultation
Overall there was little support from stakeholders for this option except in
combination with other options. The overwhelming majority of stakeholders felt that
while referee and police checks were essential and should be required, additional
mechanisms were also needed to stop workers who are guilty of malpractice moving
between services and jurisdictions to avoid detection.
Option B4: Worker registration (working with vulnerable people checks for
disability workers)
A literature review of employment screening practices as a prevention measure for
child abuse commissioned by the Royal Commission on Institutional Responses to
Child Abuse found that there was strong agreement that comprehensive checks,
including referee checks, other sources of information about suspected abuse,
disciplinary body proceedings and other material were needed. Much of this
information is not, however, accessible to employers for privacy and security
reasons. In order to address the information gaps for employers, as well as provide
objective and skilled assessment of risk information, a third option is to introduce a
nationally consistent system of risk based screening of workers for those working
with adults with disability. The effect of this option is to create a system of worker
registration or 'positive licensing'.
The information that would be used under this approach would include:
criminal convictions (from national police checks)
criminal or civil charges not pursued, quashed and spent convictions and
other information held by courts, police and child protection agencies, such
as domestic violence and child protection orders, and broader child
protection information
workplace misconduct reports about the person.
46
Many employers surveyed as part of the Impact Analysis said they would seek Police Checks even if
Working with Vulnerable People Checks were in place, NOUS Report.
49
Some jurisdictions already operate centralised risk based screening systems for
those working with adults with disability. However, there are significant differences in
the way that these operate. As a result, if a worker moves, or works across state
boundaries they must apply for separate clearances in each jurisdiction.
The Working With Children Checks Report by the Royal Commission on Institutional
Responses to Child Sexual Abuse, for example, found that the system is not working
as well as it could.47 The report argued that complexity, lack of consistency,
inadequate information sharing and lack of portability of clearances between
jurisdictions have created a number of weaknesses in current systems. It has
recommended a national model for Working with Children Checks, by introducing
consistent standards and establishing a centralised database to facilitate cross-
border information sharing.
Under this option, it is proposed that jurisdictions agree in principle to a nationally
consistent system of worker screening for those working with adults with disability,
including the following features to facilitate mutual recognition of clearances and
minimise costs:
the standards and design of the system(s) would be aligned with the most
rigorous Working with Children Checks system as far as possible in order to
maximise consistency and minimise administrative costs;
a Working with Vulnerable People Check would be valid throughout Australia,
regardless of where it was issued (through mutual recognition arrangements);
workers could apply for registration before applying for jobs in order to
minimise or eliminate delay costs for employers;
clearances would be portable between employers and employers would be
able to verify their validity online. Consideration would also be given to ways
of providing additional information (beyond cleared/not cleared) to employers
in order to eliminate the need for employers to undertake a separate police
check);
the system would provide for ongoing monitoring of the person's clearance
against police information system and employer misconduct reports (from the
serious incident system);
the assessment would consider convictions (including past, spent and
quashed convictions); non-conviction information held by police and other
agencies (such as charges not proceeded with, AVOs and Child Protection
Orders); international police checks where feasible and relevant; and
workplace history (including any allegations or findings of workplace or
professional misconduct) and/or professional disciplinary proceedings;
workers would be able to provide any supplementary or explanatory material
relevant, and would be able to appeal any decision not to provide clearance.
Under this option:
Victoria, NSW, WA and the Northern Territory would need to introduce
legislation to introduce worker screening requirements;
47
2015
50
Tasmania, SA, ACT and Queensland would need to amend their existing
schemes in order to achieve sufficient consistency to permit mutual
recognition of adult clearances.
Compliance costs
Under this option the compliance costs faced by employers would fall in all
jurisdictions other than the ACT and Queensland (which already have WWVPC or
equivalent systems) since:
employers would no longer be required to obtain police checks or, in the
face of SA, pay for screening of the worker; and
in Victoria, accommodation service providers would no longer be required
to report any adverse findings from referee or police checks and check the
excluded persons list.
Instead, those wishing to work in the sector would be required to apply for clearance,
and would be charged a fee for the clearance. Employers would be able to verify the
validity of the clearance online and enter a code to indicate that they were employing
the person (so they could be advised in the event that the clearance is suspended or
revoked).
Effectiveness
The Working with Vulnerable People Checks approach is based on using evidence
about risk factors that predict the likelihood of offending to identify those who pose an
unacceptable risk, and ensuring they do not work in the sector. Government
screening agencies can take into account a wider range of information than would be
accessible to employers (or private sector screening agencies), including convictions,
spent convictions, charges not proceeded with, AVOs and other information. There
are strong indications that this kind of information can provide a better indication of
risk than criminal convictions alone.48
In addition, the system would allow workers to be excluded from the sector by having
their clearance suspended or revoked where new information, such as a finding of
serious workforce misconduct or criminal charges being laid against them.
The primary effect of a Working with Vulnerable People Check system is likely to be
deterrence: anecdotal evidence from Working with Children Checks suggests that a
substantial proportion of those with a history that may be uncovered by a check will
exit from the sector or not apply for jobs in it.
48
PRC, Scoping Review, op cit, pg 41, 46. According to media reports, one of five alleged sexual
offenders employed by a large Victorian disability provider worked 32 shifts while being investigated
by police on suspicion of repeatedly raping a disabled woman at another disability provider. The
report suggests that one of the alleged abusers was hired after he was sacked by the other provider in
early 2013 over his alleged repeated rape of an intellectually disabled woman. In that case police
investigated but the evidence was deemed insufficient to prosecute the case.
51
A nationally consistent approach could also reduce the likelihood of some people
slipping through the screening net by moving interstate.
The other key benefit of a pre-employment screening system is that it is preventative:
the early identification and exclusion of those who pose a risk should lead to a
cumulative reduction in the incidence of abuse, violence and exploitation over time.
That said, the number of people who would ultimately be excluded from working in
the sector upfront is likely to be relatively small. Some people with a history that may
suggest a risk will, however, apply, and would be afforded an opportunity to make
their case. Over time, though, employer reports of serious misconduct will lead to an
additional number of cases being assessed. Experience with existing systems based
on assessment of police records suggests that around 1% of applicants are likely to
have adverse information known about them that will lead to their application being
rejected. Workforce misconduct reports will lead to an additional number of workers
being refused clearance, or having their clearance revoked.
The combination of these factors means that a Working with Vulnerable Person's
Check approach, particularly if implemented in conjunction with a system of employer
reporting of workplace misconduct, is likely to have a substantial impact in reducing
the risk of serious adverse incidents because:
potential workers are assessed for risk before they start work in the sector
(rather than being excluded after being found to have committed misconduct,
or not excluded at all)
the assessment is independent and undertaken by skilled analysts against
objective criteria
it can take into account a wider range of information than other approaches.
There is ongoing monitoring of an employee's suitability to work with people
with disability
Impact on employers/competition
Depending on the final model adopted, there are two other possible direct costs for
employers. First, if a potential worker does not currently a hold a clearance, and has
a criminal record or other adverse information is known about them, there could be
costs associated with delays while they seek clearance. Secondly, if the system
allowed for organisation/job specific clearances to be negotiated with employers (who
would need to put in place appropriate risk management arrangements), this would
involve some administrative costs. The number of cases is likely to be very small
however. If a system of mandatory or voluntary employer reporting of worker
misconduct was put in place, this would require employers to document the
misconduct to a level that could be assessed by the screening unit.
Effect on potential workers
For the great majority of applicants, the check would be a simple data-matching
exercise that would establish that no relevant information was held about the person.
Experience with existing systems suggests that clearances could be granted within 2-
52
10 days without the need for further assessment.49 Where a person's past history
does suggest the need for a full risk assessment, the assessment process may
stretch out for an extended period of time given the need to provide the applicant with
opportunities to exercise their right to make submissions on their case and respond
to any material of which they may not have been aware.50
A few respondents in the consultation process expressed reservations about people
being excluded altogether from working in the sector on the basis of a risk
assessment that included past convictions (including spent convictions). The
majority, however, felt that the risk to vulnerable people clearly outweighed the rights
of the small number of people who might be excluded from working in the sector.
People do not have a right to a job in a particular sector, and 'fit and proper person'
checks are common in high risk jobs. Many also pointed to the problems of making
complaints and obtaining convictions as a rationale for a more comprehensive
approach, including as a way of reducing potential employer liability.
Consultation
In the consultation process, stakeholders almost universally supported the
introduction of Working with Vulnerable People's checks. Some stakeholders argued
however, that over-reliance on checks can be detrimental to safety as they can
provide a false sense of security, and lead to complacency. They stressed that the
measure should not replace the need for employers to put in place effective
recruitment, selection and management systems for staff. Stakeholders strongly
agreed, though, that a nationally consistent and portable system of Working with
Vulnerable People Checks should be the most effective means of preventing people
with a history of criminal and exploitative behaviour from moving interstate to take up
a new position.
The Consultation report noted that the reasons for majority support for Option B4
include that:
governments have a duty of care to protect NDIS participants from people with a
history of criminal, predatory or exploitative behaviour
self-regulation and referee checks would be inadequate as they may not be
carried out properly or the staff member may provide an incomplete employment
history
police checks would be inadequate because not everyone who has committed
abuse receives a conviction (in part because of the criminal standard of evidence
requirement)
these clearances will prevent the need for multiple screening processes (unless
working with children) if they draw on real-time information and move with the
worker.
49
The most recent data on Working with Children Checks in NSW shows that 78 per cent of
applications were processed within 2 days and 98 per cent within 10 days.
50
In NSW, 84 per cent of full risk assessments were completed within 16 weeks in 2012-13.
53
There was strong support for a nationally consistent approach to staff screening to
prevent people with a history of misconduct from moving interstate to take up new
positions. Stakeholders also saw scope for the development of a consistent
approach across sectors such as children and aged care sectors.
The main drawback of Vulnerable People's Checks is that they could make it difficult
to recruit staff in some regional and remote areas. All 'working with' systems,
however, provide potential workers an opportunity to make their case for clearance to
the screening agency, providing fairness and some flexibility.
Some employers were also concerned over the potential for delays in allowing staff
to commence work. This may be an unfounded concern, particularly given the
proposed design of the system which would allow potential employees to obtain
clearances prior to applying for a job with an employer. One employer organisation
argued that while screening systems are needed, they should be delivered by private
sector screening agencies rather than Government in order to reduce costs and
delays. An employer survey undertaken by NOUS Group for the Impact Analysis
also reported concern over delays in obtaining clearances. Providers claimed that
they lose, or would expect to lose, on average 3.1 potential workers each year due to
delays in obtaining pre-screening information, at an average cost to the provider of
$2,600. In practice most state screening systems provide outcomes for the majority
of applicants very quickly. Administrative data reported by the Productivity
Commission on the ACT scheme found that:
87% of WWVP checks in the ACT, where the applicant had no criminal
history, require an average of 2 days to process
12% of checks, where the applicant had a minor offence recorded, require an
average of 5 days to process
1% of checks involve applicants with significant criminal history, and require
an average of 28 days to process.51
Option B5: Barred list
A barred workers list system currently operates in only one jurisdiction, Victoria, and
there on a non-legislative basis in relation to accommodations services. Accordingly,
all jurisdictions (and/or the Commonwealth) would need to introduce legislation to
implement this approach under the NDIS.
The key difference between a 'working with check' (positive licensing) and a barred
persons list (negative licensing) is that a working with children or vulnerable persons
check assesses all of the available information about a person before they can be
employed in order to assess whether they appear to pose a risk to clients, as well as
responding to any new information that comes to light. Barring, by contrast, occurs
only after a particular adverse event (serious misconduct or a crime) has occurred
and is reported. Employers are required to verify that the person has not been
barred.
51
NOUS pg 92
54
A barring scheme potentially could help prevent people who commit misconduct from
simply moving to a new job with another provider, or across jurisdictions.
Consultation
There was somewhat less support for Option 5 (a barred persons list) than for Option
3 in the Consultation process, and most of those who supported this option
suggested that it be introduced in conjunction with Option 4, and the design of Option
4 has been modified to reflect this. National Disability Services recommended Option
5 combined with Option 2 (referee and police checks).
Lower rates of support for this option may in part be because people have had limited
experience with this model (a limited form of it has only been in place for Victorian for
a short time). The majority of respondents, however, felt a more comprehensive
system of worker screening was needed in the sector. In addition, some of those
who had experienced the Victorian scheme had strong reservations about it.
Effectiveness
A barred list has the advantage of preventing workers found to have engaged in
workplace misconduct from moving to another job in the sector. However, as the
table below illustrates, it is a more limited approach than Option 4.
First, it is corrective only. Some workers who would have been excluded from the
sector under a working with vulnerable people checks will be able to obtain jobs;
some proportion of these are likely to harm clients. It is only after they have actually
been found to have committed the misconduct that they can be excluded from the
sector. Moreover, not all of those who commit misconduct will be detected, at least
in the short term.
Secondly, there is a risk that even where a person is dismissed by one employer and
barred on the basis of that misconduct, they could continue to be employed, for
example because they held more than one job, and employers are only required to
consult with the holder of the barred person list at the time they employ an individual.
Table 5.2.5: Key differences between a barred list and 'working with' check
Working with check Barred list
Pre-employment Independent clearance Employer, as under Option
assessment of risk agency 2. List is maintained by
independent agency who
makes assessment of
information available
Information considered Includes conviction, non- Criminal records where
conviction and other police this becomes known.
information held about a Employer reports on
person as well as serious misconduct,
employer reports and complaints where
complaints misconduct was found to
have occurred.
55
Notification to employer Employer informed if If person held several jobs,
clearance suspended other employers may not
become aware of barred
status
A barred persons scheme would also require that a level of evidence to support the
barring decision exists - it would be difficult to justify barring someone from further
work in the sector based on suspicion alone.
Some stakeholders also were concerned that employers could misuse the system to
target whistle-blowers, or people they had personal conflicts with.
Would require review mechanism for worker.
Compliance costs
Employers: The difference in compliance costs for employers between Option 4 and
Option 5 is likely to be insignificant. Under either system, an employer would need to
verify whether the person has a clearance or is on the barred list. Under Option 5,
however, if the barred person list was private, the potential worker would need to give
their consent to a check being made (in order to prevent other parties from finding
out that a person is on the list).
Under both options employers would be required to report serious incidents including
those involving misconduct.
Table 5.2.6: Barring vs Working with Check - Administrative impact
Working with check Barred list
Employees Need to apply (and pay) for Consent to check against
clearance in order to be barred list
employed in the sector
Employers Verify worker has clearance Verify not on barred list.
(ideally online) (on-line).
Would also need to verify
Report that they have police record check &
employed person (database Working with
entry) to enable ongoing Children check (if
monitoring. required)
Report serious misconduct
Report serious
misconduct impacting on
clients
Report any adverse
findings from police
record / working with
children check
56
Misconduct reports Placed on database Triggers consideration of
barring.
If hold clearance, triggers
suspension/possible
cancellation of clearance
(through new risk
assessment) and employer
notified
Government: A system to assess employer reports and decide whether barring
action was warranted would need to be established.
C Registration and Code of Conduct
Option C1 - Maintain state and territory based quality assurance requirements.
Currently the NDIS provider registration rules require providers to meet specified
requirements depending on the type of support they offer, as well as comply with
state and territory quality assurance requirements.
NDIS transition arrangements: Under the current NDIS legislation, responsibility for
registration lies with the Chief Executive Officer (CEO) of the NDIA. The NDIS Act
provides flexibility about who can be a registered supplier. Except where a person is
providing a support for which they must by law have certain qualifications (such as a
psychologist or physiotherapist) or some other form of license, anyone can register if
they can prove to the NDIA that they have the capacity and experience to provide the
supports.
Under the arrangements for trial and transition, the CEO must take into account state
or territory government approval requirements. These arrangements could, in
principle, be continued.
BOX: NDIS Supplier Registration assessment process
Currently suppliers are required to submit an application form through the NDIS
Supplier Portal. The application needs to include:
. the supports they wish to provide;
. the geographical areas the supplier can deliver supports to;
. qualifications held;
. relevant professional registrations or accreditations;
. experience; and
. details of processes in place to ensure high quality service.
Supplier are required to comply with all laws that apply in the jurisdiction they operate
in, including requirements for employees to hold Working With Children and/or
Vulnerable People Checks, Occupational Health and Safety requirements. This also
57
includes compliance with state and territory quality assurance/management systems
requirements.
A Provider Registration Guide to Suitability Requirements sets out the criteria used to
assess suitability to provide supports. The Guide sets out the professions, evidence
of experience and capacity requirements evidence necessary to offer different types
of NDIS supports. Depending on the type of support offered, this can include
providing evidence of financial viability, National Police Checks, Risk Management,
Facilities and Equipment, Complaints, Insurance, Relevant licences, compliance with
relevant standards, as well as appropriately qualified staff.
Under the transition arrangements, additional requirements apply in some states and
the CEO must take into account state or territory government approvals. In most
states this involves a quality management and "due diligence" checking of suppliers.
Arrangements are in place to allow state and territory regulators to provide advice on
registration to the NDIA.
Once providers are registered, they are required to comply with the NDIA's Terms of
Business. The terms of business say, for example, that suppliers must protect
participants' privacy. Suppliers are not allowed to discriminate between people
because of gender, marital status, pregnancy, age, ethnic or national origin,
disability, sexual preference, religious or political belief. They also say that suppliers
must have a complaints system.
There is a high degree of commonality in the elements of the quality assurance
systems currently used by states and territories. In particular, all jurisdictions have
either included the National Standards for Disability Services which were agreed
between governments in 2013 (summarised in the box below) in their disability and
other relevant legislation, or mapped these to existing standards to ensure each
standard has the same meaning across Australia. Notwithstanding this, in practice
stakeholders suggested that the National Disability Service Standards are
understood and assessed differently in each jurisdiction.
Box 5.3: The National Standards for Disability Services
The National Standards for Disability Services, agreed by governments in 2013, are
intended to promote and drive a nationally consistent approach to improving the
quality of services. They focus on rights and outcomes for people with disability.
There are six National Standards that apply to disability service suppliers.
1. Rights: The service promotes individual rights to freedom of expression,
decision-making and actively prevents abuse, harm, neglect and violence.
2. Participation and Inclusion: The service works with individuals and families,
friends and carers to promote opportunities for meaningful participation and active
inclusion in society.
3. Individual Outcomes: Services and supports are assessed, planned, delivered
and reviewed to build on individual strengths and enable individuals to reach their
goals.
58
4. Feedback and Complaints: Regular feedback is sought and used to inform
individual and organisation-wide service reviews and improvement.
5. Service Access: The service manages access, commencement and leaving a
service in a transparent, fair, equal and responsive way.
6. Service Management: The service has effective and accountable service
management and leadership to maximise outcomes for individuals.
The table below summarises the differences in assessment methods, which can
involve a process of self-assessment, independent validation, independent
assessment, audits/random inspections, and performance reporting requirements.
59
Table 5.3.1: Elements of the quality assurance system*
Key element* Jurisdiction
Legislative principles (promote Cw, ACT, NSW, SA, Tas, Vic, WA
continuous improvement, person-
centred, etc)
Linked to National Disability Services All
Standards
Self-assessment All
Third party assessment Cw, NSW, Qld, SA, Tas, Vic, WA
Performance measures reporting Cw, NSW, NT, Qld, SA, Vic, WA
Source: Based on KPMG 2012.
Efficiency
In practice, because of the mix of formal, informal (including through contract and
funding agreement management processes) and third-party regulation currently
employed it is not possible to accurately assess the extent to which compliance costs
differ between jurisdictions under current arrangements.
It is clear, however, that there is no nationally consistent system in which a provider
who has met the standards in one jurisdiction can have this recognised in another.
This means that suppliers operating across several sectors and/or jurisdictions have
to comply with multiple sets of requirements, adding to costs. A survey of providers
undertaken by the NOUS Group found that only 25% of suppliers currently only
comply with one quality assurance framework. Just under half were required to
participate in three or more quality assurance assessments, and around 8% with 5 or
more.52 A significant proportion of these may be operating across several
jurisdictions, as well as in related markets such as aged care or other community
services.
Accordingly, this option would be administratively inefficient. Moreover these costs
can put small businesses at a particular disadvantage since the costs of them may
more readily be absorbed by large organisations which may also obtain commercial
advantage or prestige in gaining certification against recognised industry standards.
Effectiveness
Current quality systems have not been designed with the NDIS in mind.
First, they have been designed with specialist disability services in mind, whereas the
NDIS will cover a much wider range of supports, many of which are low risk.
Alongside traditional specialist disability suppliers of supports there will be greater
numbers of registered health professionals and suppliers of transport, household
cleaning and gardening services. Requiring mainstream services to undergo full
quality evaluation or quality assurance processes would pose considerable costs and
could be a serious disincentive to provide supports to participants. Accordingly, there
52
Nous Report, pg 111
60
is a risk that unless the NDIS quality system arrangements are also sensitive to the
market, smaller suppliers may be driven out and others deterred from entering, while
entrenching the advantage of existing larger suppliers.
Secondly, even in relation to specialist disability providers, in the consultation
process it was suggested that they often adopt too much of a 'tick the box' approach
to assessing an organisation's compliance with contracted standards rather than
focusing on sustained quality and compliance. In part this is because current funding
arrangements give funding bodies capacity to address quality issues through contract
management processes which will no longer exist under the NDIS.
Thirdly, a particular concern raised in the consultation process was that not all of the
National Standards for Disability Services readily lend themselves to be assessed
through quality assurance mechanisms. Currently these matters can be dealt with
through informal regulation, in the context of management of funding agreements
and contracts. IN the NDIS environment, other approaches, such as a Code of
Conduct, may be needed to supplement this approach. A voluntary Code is unlikely
to be viable in an emerging and transitional market situation however.
Conclusion
As this approach is not likely to be efficient or effective in the NDIS environment
where state and territory governments no longer have contractual relationships with
providers, it is not recommended.
Option 2 - Voluntary certification
For the purposes of registration suppliers would need to comply with all applicable
laws (such as ensuring workers hold relevant clearances). They could apply for a
quality certification on a voluntary basis. .
Option 2 is essentially a self-regulation approach, and would be a significant
reduction from what individuals and organisations wanting to provide disability
services must currently do to meet the NDIS registration requirements. .
This option would significantly reduce suppliers' mandatory compliance costs in all
jurisdictions. Currently, all jurisdictions require suppliers to undertake a more
comprehensive approval process than would be required by this option. Essentially
the internal administrative cost would amount to completing and submitting an
'application to register', which is already required in some form under current
arrangements. This option would be a reduction in requirements for suppliers in all
jurisdictions currently delivering specialist disability services.
Consultation
There was very limited support for this option in the stakeholder feedback. Those
who did support it argued that it would provide a balance between choice and
assurance, and that quality assessments are not a guarantee of quality. The majority
of stakeholders however felt that it would be likely to lead to a significant increase in
61
the number of serious adverse incidents, and that this was not an acceptable
outcome.
Distribution effects
Suppliers would benefit from not being required to undergo the more rigorous
requirements they are currently subject to under existing systems, and governments,
who would no longer need to undertake the same level of regulatory oversight of the
sector. Accordingly the regulatory burden would be very low.
This comes at the cost of participants, however, who could experience an estimated
100% increase in serious adverse incidents.53
Conclusion
As this option could be expected to lead to a substantial increase in serious adverse
incidents, it is not recommended. This option has a high risk of compromising the
integrity of the NDIS through poor quality supports that do not achieve participant
outcomes, and is arguably inconsistent with the intent of the legislation requiring that
suppliers be registered.
Option C3 - Additional conditions
Effectiveness
While there are a number of factors that determine the risk to any single individual,
there are some types of supports where risk is always greater because of the
circumstances in which the support is typically offered, for example, when supports
are provided in a private or closed setting. In general, most suppliers would be
expected to have some form of complaints handling system, recruitment practices
which ensure that participants are not exposed to workers who may cause harm and
systems to protect the privacy of clients. They would also be required to notify the
NDIS complaints body of serious incidents.
This option would represent a substantial reduction in the overall level of regulation
compared to current requirements, which generally apply to all specialist disability
providers. Accordingly there is a danger that the relatively low barriers to entry could
create rapid turnover because suppliers who were not committed to their long-term
sustainability could enter, offer unsafe or poor quality supports and then move out of
the market again. Moreover, those with a questionable history could find it relatively
easy to re-establish themselves in a new setting. This could lead to exploitation and
rorting of the system, as well as leave participants without essential supports.
There would be no mandated external auditing of service quality, and so participants
would largely rely on word of mouth and publicly available information in order to
assess the safety and quality of a supplier.
53
NOUS Group estimate.
62
Distribution effects
Suppliers: For existing specialist disability services this would be a reduction in the
regulatory burden compared to current requirements (Option 1), but an increase in
costs compared to Option 2. New suppliers may need to invest in establishing new
systems to meet conditions, but as the requirements would be equivalent to
appropriate business practice for the type of support, the costs of this are expected to
be relatively low.
This option would allow suppliers of supports to register and enter the market quickly
while ensuring some critical standards, such as, the qualifications of the supplier to
undertake a particular service safely and competently have been checked.
Participants: As this would be a significant reduction in oversight over current
requirements, it is estimated that it could lead to an increase in serious adverse
incidents of around 50% over current levels.
Consultation
There was only limited support for this option in the consultation process.
Conclusion
This option would not provide an adequate level of quality and safeguards for
supplier offering support in the higher risk service clusters.
Option C4 - Mandated independent quality evaluation of suppliers of supports
considered higher risk
Under this option, where a provider was judged higher risk, a quality evaluation
process would be required. The evaluation would assess information based on
participants' experiences of the organisation in assisting them to access supports
and meet their individual needs and goals. The evaluation assessments would be
descriptive and made public. The assessment would also consider other aspects of a
supplier's business, such as safety, staff management, timeliness and
responsiveness to user feedback. The aim would be to inform future and current
participants about the relative strengths and areas of improvement of suppliers. A
supplier would not be excluded from registration on the basis of a below average
assessment, provided they continued to meet all other registration conditions.
The majority of businesses operating in the general marketplace, for example,
general gardening or household supports, taxi services, and suppliers of aids and
equipment, would be exempt. These types of supports are used widely across the
population and information on people's experience of these supports is becoming
increasingly available online.
63
Only suppliers delivering supports of a type likely to create a greater risk to
participants (that is, supports that involve more direct staff-participant contact; or
which lack supervision such as personal care support, respite or supported
residential services) would be required to participate in a quality assessment under
this option.
Effectiveness
The focus of this approach is client experience rather than objective measures that
focus on systems to promote safety. This could help reinforce user choice as a
driver for a more client centred approach.
Because it provides less focus on safety processes than most current systems,
Option 4 could, though, be expected to lead to a modest increase in serious incident
levels.
The evaluation assessments would be descriptive and made public. The assessment
would also consider other aspects of a supplier's business, such as safety, staff
management, timeliness and responsiveness to user feedback. The aim would be to
inform future and current participants about the relative strengths and areas of
improvement of suppliers. It is questionable how effective this information would be in
driving participant choice for many participants however. In addition, there would still
be major information asymmetries given that safety defects may not be evident to
participants.
The operation of the Code of Conduct would provide a mechanism to exclude
suppliers engaging in the most serious forms of misconduct from the market, but
reliance on complaints would mean that it would represent a very light touch
approach. Many consumers in the NDIS market may not be in a position to make a
complaint themselves, or may fear retribution if they do. For this reason, it could be
important that the trigger for consideration of whether a breach of the Code of
Conduct had occurred not depend on complaints alone, as is the case for many other
Codes. Instead the process could potentially be triggered by intelligence from a
range of sources, including serious incident reports; advice from advocates; family
and friends; Community visitors; health or educational professionals and media
reports. Regardless of the source of information, an appropriate investigation would
then need to occur to verify the relevant allegation.
Distribution effects
Participants: The most significant benefit of this option is that participants would be
provided with independent outcomes-based quality information to help them make
choices between suppliers in the market. This means that the quality evaluation will
describe a range of attributes of a particular supplier, and participants will be able to
make their own decisions based on what is most important to them and choose from
a potentially wider range of suppliers. The approach focus on the participants'
experiences of the supports they receive.
64
Suppliers: The majority of businesses operating in the general marketplace, for
example, general gardening or household supports, taxi services, and suppliers of
aids and equipment, would be exempt. These types of supports are used widely
across the population and information on people's experience of these supports is
becoming increasingly available online.
Only suppliers delivering supports of a type likely to create a greater risk to
participants (that is, supports that involve more direct staff-participant contact; or
which lack supervision such as personal care support, respite or supported
residential services) would be required to participate in a quality assessment under
this option. It is estimated that this could amount to around 20% of suppliers of
supports.54 Suppliers offering lower risk supports would be asked to additional
requirements as described under Option C3.
The compliance costs for business associated with this option represent a reduction
in cost for most suppliers compared to the certification processes most are currently
required to undergo, since requirements would be more closely calibrated to risk, and
equivalent standards would be recognised, eliminating the need to undergo multiple
certification processes in order to operate across jurisdictions or sectors.
Nonetheless, it does involve a substantial cost which could deter entry, particularly in
thin markets.
Consultation
There was some support for this approach among stakeholder groups and from
National Disability Services. The reasons given for this were that:
the focus of quality assessment should be on the perspectives of people with
disability and the outcomes for people with disability, not processes; and
quality assurance systems are not a guarantee of quality and they are costly.
Some stakeholders, however, expressed concern that it could lead to less of a focus
on achieving outcomes, and result in a cultivation of dependency on suppliers.
Suggestions on the possible content of a code of conduct were generally in line with
the National Standards for Disability Services, including prohibiting behaviours that
may cause harm, respecting people with disability, listening to and being guided by
what a person wants, and respecting people's right to privacy. Stakeholders also
noted, however, the need for organisations to have effective recruitment, training and
supervision practices, effective complaints and serious incident management
processes, and accountable governance arrangements, which would not be tested
under this option.
Option C5 - A quality assurance scheme.
Under this option all providers will be required to meet certain basic requirements
including complying with an NDIS Code of Conduct, and complying with other
elements of the framework such as complaints mechanisms (if agreed).
54
NOUS Group estimate.
65
A key element of this option would be an assessment of the proposed scope of a
suppliers practice in order to decide what requirements should apply, having regard
to the inherent riskiness of the support type, and expected client profiles. The
diagram below illustrates how these would be tiered.
Tiered provider requirements
Lower-risk supports Higher-risk supports
Larger Provider types: e.g. cleaning Provider types: large organisation
providers company (more than 5 employees). undertaking range of higher risk
supports, including personal care,
Requirements: Can choose
behaviour support, accommodation.
verification of individual employees,
or certification of organisation. The Requirements: Quality assurance
latter will be more efficient (lower certification; focused on compliance
cost and address employee with practice standards and
turnover). management of risks, including
governance, internal quality systems.
Requirements tailored to scope of
supports offered.
Smaller Provider types: e.g. sole operator Provider types: e.g. sole operator
providers doing gardening, cleaning; allied offering higher risk supports.
health professionals registered with Requirements: Proportionate quality
AHPRA or that have full membership assurance certification tailored to
of a recognised professional scope of supports. Includes:
association, where relevant to their
competence, training, experience and
scope of practice. understanding of risks. Certification
Requirements: Verification of evidence requirements proportionate
insurance, qualifications, employee to the size of the organisation.
screening.
Under this option a simple verification process would confirm a supplier's identity,
professional qualifications or licensing (where these are required by law), check that
the supplier has adequate insurance for scope of the nature of the service being
offered and that in the case of an individual, they have a current national police check
or working with children or vulnerable person's clearance. In the case of an
organisation, verification would involve checking that the organisation undertakes this
verification of staff itself. Suppliers offering personal supports would also need to
demonstrate that their workers had completed an orientation to the NDIS that
ensured they had a basic awareness of the principles and values underpinning the
scheme, including issues relating to abuse and neglect.
There would be a third party quality assurance certification in which suppliers would
apply for a certification against the NDIS practice standards (which step out the
National Standards for Disability Services in more detail) for the scope of services
they intend to provide. The quality assurance scheme would be established as the
66
NDIS Practice Standards Scheme. The scheme and practice standards will be
owned by the NDIS Registrar and managed and maintained in line with best practice
standards set out by an accrediting body, such as JAZ-ANZ. The methodology for
assessment will ensure a much greater focus on supplier performance against
standards using the lived experience of the participant, captured through observation
and conversation with the participant and families, compared to current quality
assurance systems.
Under this approach a scheme would be created which would instruct auditing bodies
on the methodology for assessment to ensure the requirements are proportionate to
risk. The scheme would have a set of core practice standards which address
suppliers' governance and risk management. How these are assessed and what the
auditor will require as evidence would depend on the size of the supplier, its turnover,
and its governance structures.
Additional practice standards would be prepared as modules, with the scope of
services that a supplier proposes to offer determining which modules they will need
to be audited against. Some suppliers would be audited against only one or two
modules. For example, a supplier who is offering clinical would be subject to a
standards which require them to demonstrate they and their staff have the skills and
training to achieve outcomes for this cohort and they understand and comply with the
NDIS and state and territory laws regarding the use of restrictive practices and NDIS
reporting and accountability requirements.
Suppliers offering personal care or community access for individuals who could have
clinical needs would be required to meet standards that address their competency
and risk management for providing safe and quality services to that cohort. This
would include requiring workers providing personal supports to complete an induction
module to ensure that these workers are familiar with the principles underpinning the
NDIS and the risks of providing supports, including issues related to abuse and
neglect.
There will also need to be a standards module for Specialist Disability
Accommodation to ensure that registered suppliers of housing are meeting and
maintaining standards, including practice standards which ensure safeguards for
participants accessing this type of housing in the market.
The diagram over illustrates how the requirements would operate.
Under this option, suppliers would also need to comply with report on standard
information, consistent with requirements already commonly in place under
contractual funding arrangements and/or the NDIS Act, including serious incident
reports. Depending on the nature and size of the organisation involved this may
include financial reporting and/or reporting on significant governance changes, for
example where continuity of service arrangements might need to be put in place if
the organisation fails. For those suppliers that fall within the market monitoring risk
threshold, the NDIS Registrar will assess their financial viability and governance
arrangements and may require a plan for continuity of service to be put in place if the
organisation fails.
67
Code of Conduct
The Code of Conduct would complement these requirements and operate in a similar
way to current codes such as that applying to allied health workers, and would also
apply to unregistered suppliers (ie suppliers who choose not to register and provide
supports to self-managed participants).
The NDIS Code of Conduct would set out basic participant rights consistent with the
National Standards for Disability Services, effectively acting as a negative licensing
scheme. From the participants' perspective, it would operate through, rather than
separately from the complaints system. A NDIS Code of Conduct could supplement
the system of standards by articulating and enforcing expectations for both suppliers
of supports and individual workers.
68
Provider registration, verification and certification processes
Verification Re-verification
Provider supplies Provider is
Provider is NDIS appointed Provider credentials
required approved and able
proposing to verifier checks Provider meets re-verified to
information (e.g. to deliver supports
deliver supports provider requirements confirm ongoing
about insurance, in the categories
deemed to be credentials compliance every
worker credentials) specified in their
low risk 12 months
registration
Triaging of
applications
by NDIS
registrar
Certification Re-certification
Provider is Provider completes Provisional
proposing to self-assessment registration for
deliver supports against Core new providers Provider Provider is Annual surveillance
deemed to be Standards successfully approved and able audits and
higher risk
completes to deliver supports recertification every
certification in the categories 3 years to confirm
Provider completes Relevant NDIS within 12
Provider is also specified in their ongoing
self-assessment Practice months of self- registration
proposing to compliance
against Core Standards are assessment
deliver specialist
Standards and met
supports
relevant Specific
Practice Standards
69
The Code would help operationalise the National Standards for Disability Services by:
setting expectations for organisations and workers in the sector;
shaping the behaviour and culture of organisations and workers;
empowering consumers in relation to their rights; and
providing a basis for the regulator to take regulatory action where the supplier of
supports or an individual has breached the Code.
The following possible elements are intended to provide an indication of the nature and scope
of the Code, but would be the subject of a further targeted consultation process.
Workers and suppliers should:
1. Respect the rights and dignity of all NDIS participants, including their right to choice and
control and to take reasonable risks.
2. Provide supports in a safe and ethical manner with reasonable care and skill.
3. Not make false or misleading claims or misinform participants.
4. Respect the privacy of participants and comply with relevant privacy laws.
5. Take into account the needs, values, and beliefs of different cultural, religious and
ethnic groups.
6. Communicate in a form, language, and manner that enables the participant to
understand the information provided and make known their preferences
7. Provide an accessible, fair and impartial complaints and disputes process that allows
grievances concerning the support to be raised and resolved.
8. Not practise under the influence of alcohol or unlawful substances.
9. Not financially exploit clients in any way.
10. Not engage in sexual activity, consensual or non-consensual, with a participant to whom
you are proving supports.
11. Keep appropriate records and implement reporting and investigation procedures for
serious incidents.
12. Offer reasonable supervision and take reasonable steps to ensure staff are competent
and supported to perform their role.
13. Maintain adequate personal and professional liability insurance appropriate to the risks
associated with your practice.
14. Display the code of conduct or make it available to participants.
The Code would be given legislative effect and would apply to individuals and organisations.
Providers would not have to demonstrate compliance against it, instead potential breaches of it
identified from complaints, serious incident reporting, quality assurance and other sources
would be investigated;
Effectiveness
Quality assurance requirements represent a continuation of existing requirements for many
government-funded specialist disability services. As for Option 4, Option 5 would provide
information of participant experience of the support, but it would have an additional focus on
governance, operations and the quality system to ensure a viable and well-functioning
70
organisation. Suppliers who do not meet standards would be directed to make improvements,
and if they fail to do so, they may be deregistered or precluded from entering the market.
This option proposes that low risk supports would be required to comply with a minimum set of
conditions to assure the Registrar that the supplier is competent and able to comply with all
legal requirements. For a smaller group of higher risk suppliers, including those who work in
closed environments with people who have limited communication capacity or have a cognitive
disability, there should be comprehensive independent system for quality assurance. This is
different to an evaluation approach as it brings a greater level of objectivity, consistency and
professionalism to the assessment process.
That said, experience has shown that quality assurance systems are never perfect and by its
nature, human services delivery will always carry some risk. For these reasons quality
assurance systems must work alongside effective complaints schemes and a regulatory
approach that enables early identification of risk and builds natural safeguards as much as
possible.
Continuing registration of a supplier would, however, be subject to the supplier behaving safely
and ethically. In the consultations, stakeholders identified the need to address a number of
behaviours set out in the national standards, including prohibiting behaviours that may cause
harm; ensuring that workers respect people with disability, including listening to and being
guided by what a person wants; and respecting people's right to privacy. They were
particularly concerned at the need to address the possibility of behaviours that may not
technically constitute a crime, but which should never be acceptable in the NDIS, such as
harsh, rough, exploitative or otherwise unethical treatment, depriving a person of food, sleep or
basic needs, bullying, intimidation, vengeful, or deceptive behaviour in response to a complaint
or incident. They considered that an enforceable code of conduct would be an appropriate
mechanism for this purpose.
The vast majority of suppliers of supports and workers are likely to operate in a safe,
competent and ethical manner. A small proportion, however, may prove to present a serious
risk to the public, or may operate outside the boundaries of acceptable conduct one would
reasonably expect within the NDIS.
A NDIS Code of Conduct could supplement the system of standards by articulating and
enforcing expectations for both suppliers of supports and individual workers.
Efficiency
The Consultation RIS proposed a system potentially with four tiers of requirements depending
on level of risk. Stakeholders suggested that a more nuanced and streamlined approach
would be preferable, and Option 5 has been designed to reflect this. It would provide a more
targeted approach, with requirements tiered according to risk. In addition, by moving to a
single national system, with recognition of common components of other certification systems,
supplier compliance costs could be expected to at least halve compared to current levels
without any impact on outcomes.
71
For most social care suppliers, the essential ingredients of quality person-centred service
delivery can be distilled into a relatively small number of core competencies. Many of these
competencies, however, are hard to measure in concrete ways, and so funding bodies have
not been able to collectively agree on what particular competencies or attributes should be
assessed or how. This has resulted in multiple quality assurance standards and systems
which, effectively measure the same capabilities and client outcomes. For suppliers this
imposes significant costs, diverting resources from improving quality to proving quality. For
suppliers who have a wide scope of services and client groups and/or a national services
footprint, this may mean they have to demonstrate adherence to a number of quality
certification systems. The creation of a national supplier registration system for the NDIS is an
opportunity for purchasers across a range of program areas and jurisdictions to recognise one
system of quality assurance. This would significantly reduce the cost burden on social care
suppliers.
Currently suppliers are generally required to undergo certification and submit to ongoing audit
requirements as a condition of their funding agreements. This approach is intended to place
the least burden on suppliers of services where risk to participants and the NDIS scheme are
small.
Under this option low risk services such as everyday type services which are used by the
general public, for example a gardeners or domestic cleaning service or a taxi company would
only be subject to simple verification requirements. These suppliers, if they are operating as a
business with multiple employees could choose to seek a quality assurance certification under
the NDIS Practice Standards Scheme, but it would be voluntary.
Where suppliers are applying to register as individuals who propose to offer equivalent low risk
supports, a simple verification process would apply to check evidence of profession and public
liability insurance and police records and/or relevant "working with" checks. This would be a
largely automated and rapid process for people with no criminal history.
Similarly, where suppliers offered supports whose scope of service are covered by already
regulated by existing schemes, simplified registration would apply. This would mean that
registered allied health professionals (registered with the Allied Health Professionals
Registration Authority or have full membership of a recognised professional association as
prescribed in Schedule 1 of the Health Insurance (Allied Health Services) Determination 2014),
for example, would simply have to establish that their registration is current and that they have
appropriate professional indemnity insurance. There would however be some exceptions, for
example where allied health professionals are intending to provide a service type that requires
highly specialised skills and experience, such as early intervention services for children, and
behaviour supports practitioners who would need to meet professional competency standards.
In addition, suppliers of supports who meet quality assurance requirements deemed equivalent
to those applying under the NDIS would not need to undergo a separate assurance process.
Higher risk suppliers would be required to obtain certification under the NDIS Practice
Standards (including the subset of allied health professionals described above).
72
A Code of Conduct would not represent an additional impost for registered suppliers of
supports; rather it would simply be another means of articulating and enforcing the standards
that applied to them. From the participants' perspective, it would operate through, rather than
separately from the complaints system. For unregistered suppliers of supports providing
services and products to self-managing participants, the Code could operate as a negative
licensing system. Assuming that the number of self-managing participants stabilises at 6%,
business compliance costs would be minimal since they only arise when a serious case of
misconduct occurs, and the existence of the scheme will act as a deterrent.
Managing market risk
Arrangements for reporting of key performance information would provide a mechanism to
identify and manage the risk of failure of a very large supplier that would be difficult for the
market to absorb, a key risk identified by a number of stakeholders.
Distribution and competition effects
Notwithstanding the benefits that suppliers identified from participation in them, quality
assurance requirements involve significant costs (estimated at around $20,000 per annum).
This represents a significant barrier to entry for those delivering relatively high risk supports,
and potentially increasing costs to government of arranging supplier of last resort services.
These factors, however, needs to be weighed, however, against the potential harms to
participants from unsafe services, and risks to taxpayer funds of services that do not deliver
the desired outcomes.
Consultation
In the consultation process, mandating quality assurance requirements received the strongest
support of any option. Stakeholders from a range of groups, including people with disability
and their families, suppliers, peak bodies, professional associations, statutory bodies and
academics, supported this approach on the basis that it was the most likely to ensure high
quality supports and manage risks.
The stakeholder consultations found broad support for an independent quality verification
system, with strongest support for mandated participation in an external quality assurance
system for suppliers of supports considered higher risk. The arguments for this approach
included:
lower-level requirements would not provide sufficient assurance of quality, for example,
a Code of Conduct alone would be insufficient without auditing;
it would provide an independent, objective and professional assessment of quality;
it would provide the best assurance of quality supports;
it has supported and would continue to support continuous service improvement;
communities expect some level of quality assurance for government-funded services;
it should ensure that services have appropriate risk-management processes and
governance;
73
it would help to ensure that services are sustainable; and
it would build on developments in quality management in the disability sector and not
reduce
current safeguards.
In a provider survey, the majority of respondents were positive about the benefits of quality
assurance frameworks55, having found them valuable in building rigour in their governance and
risk management capability.
Stakeholders had mixed views about translating qualification requirements for workers into the
NDIS. Some thought all workers or workers in certain roles (who are not already subject to
professional registration requirements by law) should be required to meet minimum
qualification or training requirements and meet continuing professional development
obligations. Most stakeholders, however, emphasised the importance of workers' attitudes
over their qualifications, and were concerned that minimum qualification requirements could
make it difficult to recruit sufficient workers, and favoured a more targeted approach (for
example through practice standards for particular types of supports).
D Reducing and Eliminating Restrictive Practices in NDIS Funded Supports
Background
Consistent with the UN Convention on the Rights of Persons with Disabilities, the
Commonwealth, state and territory governments have committed to reducing and eliminating
the use of restrictive practices through the National Framework for Reducing and Eliminating
the Use of Restrictive Practices in the Disability Service Sector. The National Framework,
which was agreed in 2014, sets out six core strategies to be implemented by 2018 (see Box).
Box 6: Core strategies for reducing and eliminating the use of restrictive practices
Person-centred focus: Including the perspectives and experiences of people with disability
and their families, carers, guardians and advocates during restrictive practice incident de
briefing, individualised positive behaviour support planning, staff education and training,
and policy and practice development.
Leadership towards organisational change: Leaders need to make the goal of reducing use
of restrictive practices a high priority, and provide support to their staff to achieve it
Use of data to inform practice: Mechanisms--such as periodic review of behaviour support
plans containing a restrictive practice, supplier reporting on use of restrictive practices,
reporting client assessments and individual/positive behaviour support plans--should be
used to assess whether restrictive practices are still needed, and consider possible
alternatives. Data is also important to determine what factors are effective in reducing or
eliminating the use of restrictive practices.
55
Nous Group Report, pg 110.
74
Workforce development: Key needs include understanding positive behaviour support and
functional behaviour assessment; and skills for trauma informed practice, risk assessment,
de-escalation, and alternatives to restrictive practices.
Use within disability services of restraint and seclusion reduction tools: Use of evidence-
based assessment tools, emergency management plans and other strategies integrated
into each individual's support plan.
Debriefing and practice review: Disability service providers should undertake regular review
processes of their use of restrictive practices in order to identify areas for practice and
systemic improvement.
Effective strategies to reduce the use of restrictive practices have clear benefits for participants
in terms of quality of life and quality of care. Their use is also estimated to increase costs to
service providers compared to other interventions, with the estimated staff time amounting to
some $250-350 per use.56 Use of alternative strategies is also likely to reduce indirect costs,
since 11.4% of providers using restrictive practices reported having a client or staff member
seriously injured in the process.57
Option D1: Maintain current arrangements in place each jurisdiction.
While jurisdictions have all agreed to the National Framework for reducing and eliminating the
use of restrictive practices, they currently have different approaches to regulating the use of
restrictive practices and use different definitions. This reflects the fact that current mechanisms
were intended to be interim measures pending the development of the NDIS Quality and
Safeguarding Framework.
All states and territories have systems of guardians, which are aimed at protecting the rights of
people who are deemed not able to consent themselves. In addition, some have included
provisions to regulate the use of policy in their disability services legislation (Queensland,
Victoria, Tasmania, NT and SA). Others set out high-level principles and objectives in
legislation, which are relevant to but do not specifically address the use of restrictive practices
(ACT, NSW and WA), and include specific requirements in policy (NSW) or a code of practice
(WA).
Aside from approval arrangements for decisions to include a restrictive practice in a positive
behaviour support plan, Queensland, Victoria and Tasmania have introduced reporting
requirements around the use of restrictive practices and South Australia is currently developing
reporting guidelines. Victoria and Tasmania also have Senior Practitioners with statutory
functions that include developing guidelines and investigating the use of restrictive practices.
In order for these provisions to continue to operate in full scheme, states using policy
mechanisms applying to funded providers to give effect to the Framework (such as NSW)
would need to move to a legislative framework, while others may need to amend legislation to
ensure that current provisions continue to apply to NDIS funded services.
56
Nous Group Impact Analysis, pg 120.
57
ibid
75
Efficiency and effectiveness
Current arrangements do not fully implement the National Framework, and so are unlikely to
be fully effective in achieving the desired objective of moving away from the use of restrictive
practices to an approach focused on understanding causes of behaviour, and preventative
action. In addition, current arrangements have been developed around the former system of
funding agreements and contracts which will no longer apply. Accordingly, substantial
changes would need to be made to current legislative and other policies in order to reflect the
new operational environment.
For these reasons, Option D1 is unlikely to meet efficiency and effectiveness objectives.
This approach could also lead to substantial differences in compliance costs between
jurisdictions which would be difficult to sustain under a national system (including price setting).
Accordingly this option is not considered further.
Option D2: Registration requirements only
Currently all jurisdictions have legislation in place that either directly regulates the use of
restrictive practices or sets out high level principles and objectives which are relevant to their
use, while several all regulate their use and impose reporting requirements.
In the consultation, some stakeholders expressed concern about the concept of 'approval' of
restrictive practices in the NDIS Quality and Safeguards Framework because they represent
an infringement of human rights and should be prohibited outright. A system based on
regulation of providers through registration requirements only could address this concern, but
may not necessarily provide the strong legislative basis required to protect the rights of people
with disability at risk of being subject to restrictive practices.
This approach would represent a substantial reduction over the current system.
Consultation
While some argued against regulation of the use of restrictive practices, comments from many
others identified regulation as necessary to protect participant rights by ensuring that restrictive
practices are used only as a last resort and that the least restrictive option is used. Many
identified the need for legislative requirements that set out conditions that must be met before
a restrictive practice can be used if the person has impaired decision-making capacity (where
these are not already in place in state or territory legislation).
For the vast majority of people with behaviours of concern, stakeholders generally agreed that
it is reasonable to assume that elimination of restrictive practices over time should be
attainable. However, it was also noted that there needed to be recognition that there may be
some emergency situations or extenuating circumstances that arise where a restriction is the
only available response. They also noted that for a small minority, it may not be possible to
76
avoid the use of restrictive practices, even where a positive behaviour support plan is in place
and being implemented effectively. A person with Prader-Willi syndrome, for example, may
require restrictions placed on their access to food in their home due to behaviours arising from
their medical condition that could cause harm, such as overeating or eating foods that have not
been prepared properly and may cause food poisoning.
Effectiveness
Under the NDIS, suppliers who offer supports to individuals who require positive behaviour
support would generally be subject to particular requirements, consistent with the registration
options agreed. Research has demonstrated that appropriate staff training on the use of
positive behaviour support Plans can improve the safe application of restrictive practices as
well as significantly reduce usage rates (with some studies suggesting a reduction of up to
80%.58 Accordingly, appropriate registration requirements, combined with access to support
from a behavioural support practitioner and workplace culture could have a significant impact
on usage rates.
However, while this would include audit requirements and serious incident reporting there
would be no effective mechanism to detect and take appropriate action where restrictive
practices were used inappropriately. The NOUS Group's report indicated that reporting of the
emergency use of restrictive practices, for example, enables regulators to monitor trends at the
system level and provide advice to individual service providers on how they can reduce their
use of restrictive practices.59 The absence of a robust accountability mechanism, as well as the
other strategies set out in the National Framework is accordingly likely to undermine any gains
from a more targeted registration system, and provide inadequate protections for people with
disability who are not in a position to make a complaint.
Efficiency
A key risk is that in the absence of a robust regulatory structure, providers will be unwilling to
offer supports to high risk participants because of the costs involved. Uncertainties about the
legality of the use of restrictive practices in particular circumstances could be a significant
disincentives, particularly in a more market based system.
Conclusion
While appropriate registration requirements are a necessary condition for reducing the use of
restrictive practices, they are unlikely to be a sufficient one. This option would not adequately
implement the agreed framework for reduction and elimination of restrictive practices.
58
Nous Group Impact Assessment, pg 120
59
Nous Group Impact Assessment, pg 137.
77
Option D3: Prohibit use of restrictive practices outside approved Positive behaviour
support plans, and require providers to report use against them
Effectiveness
The overarching legislative framework proposed would provide a clear focus on reducing and
eliminating restrictive practices, both by placing obligations on decision-makers aimed at
avoiding their use, putting in place monitoring and oversight arrangements to ensure progress
is being achieved.
It would provide a strong focus on accountability by requiring plans to be reviewed regularly,
and for providers to report monthly against the plan. Reports would be monitored so that
appropriate interventions could be put in place if it appeared they were being overused or other
problems arose. Monitoring of trends would also provide a mechanism for identifying
strategies to assist providers to reduce the use of restrictive practices on a systemic basis.
This is likely to significantly reduce the use of restrictive practices over time, with major gains
for participants in terms of quality of life.
Efficiency
A nationally consistent approach would most effectively support the national focus of the NDIS,
minimise the costs associated with different jurisdictional requirements, and enable reported
differences in the usage rates to be investigated and addressed through education and
awareness as well as other preventative strategies.
Compliance costs
Reporting requirements: The key compliance cost for providers would be reporting costs. The
consultation process canvassed a range of options for frequency of reporting. Reporting on
each use of restrictive practices was generally felt to be too onerous, while reporting against
emergency use of restrictive practices received very little support from stakeholders, on the
basis that while it would minimise compliance costs, it would not provide accountability and
transparency of situations where participants have restrictive practices approved as part of the
positive behaviour support plan, or whether each use of a restrictive practice was appropriate
in the situation. A requirement to report once a month, with systems to minimise the reporting
burden, so that, for example ongoing restrictive practices would only need to be entered into
the system once unless something changed, was recommended as striking a reasonable
balance.
Consultation
The design of this option (and associated non-regulatory measures) reflects input from the
consultation processes on options canvassed in the consultation process, as well as
78
subsequent expert workshops suggesting that it was important to focus on addressing the
causes of behavioural issues, including by ensuring that providers have access to appropriate
expertise and guidelines, and have appropriate skills and systems in place, as well as
accountability measures.
Section 6: Evaluation and Conclusion
As noted above, maintaining current arrangements (Option 1 for each component) is
inconsistent with policy directions agreed for the NDIS to date and would:
not address documented weaknesses in the current systems;
likely be ineffective given the new operating environment; and
lead to unnecessary complexity and inefficiencies.
For these reasons it is not considered viable under the NDIS.
Similarly, a voluntary approach to quality and safety requirements on the part of suppliers
(Option 2 for each component) is not considered appropriate given that this market is created
by Government fiat, entirely dependent on government funding, and could lead to a substantial
increase in already unacceptable levels of serious harm to participants.
The remaining sub-options are evaluated below.
Complaints and Serious Incident Management
Option A3 (internal and external complaints handling requirements) could provide an effective
mechanism for ensuring providers have appropriate internal systems in place and for external
resolution of less serious service quality issues. However, it would not be practical or
appropriate for more serious complaints or oversighting serious incidents such as allegations
of sexual assault, violence, neglect; or investigating deaths to be dealt with by a non-statutory
body. Accordingly, a separate body would be required to undertake these functions, resulting
in a continuation of the fragmentation in the oversight system that has been criticised by
several recent inquiries.
Although complaints about abuse, neglect and violence are likely to constitute a relatively low
proportion of overall complaints, it is expected that these would warrant a more intensive role
in many cases. It would also be sensible for the complaints body to have responsibility for
oversight of serious incidents in order to maximise the efficiency and effectiveness of the
system. Oversight of serious incidents, combined with regular systematic analysis of the data
accumulated, could be expected to lead to a reduction in preventable deaths, serious injuries
and other serious adverse incidents through early intervention and support for suppliers.
Accordingly, Option A4 (statutory complaints and serious incident function) would provide for
an integrated approach to complaints and serious incident management, and would take a risk-
based approach to ensuring that organisations have effective internal governance and
accountability mechanisms for complaints and serious incidents in place, and appropriate
incentives to manage them effectively.
79
Option A3 also assumes a contractual relationship between the external complaints resolution
body and suppliers, which may be perceived as a conflict of interest, reducing the confidence
of participants in it and potentially the shift to a market environment more generally. By
contrast, an independent statutory body (Option A4) is likely to significantly increase
participants' awareness of and confidence in the complaints and serious incident handling
processes.
Option A4 is also likely to have a greater impact on improving supplier processes and
procedures than Option A3, both through stronger enforcement powers in response to
individual complaints, and through its work in identifying and addressing systemic issues.
Overall, a statutory complaints function could be expected to reduce consumer detriment by
providing cheaper and faster resolution of complaints. This in turn is likely to empower
participants to be more 'demanding customers', driving positive change in the system to make
it more responsive to their needs. It should also lead to earlier corrective action by suppliers
that will help them retain existing customers and grow their client base without significantly
impacting on compliance costs.
Accordingly Option A4, a statutory complaints and serious incidents function, is the preferred
approach.
Worker screening
Option B3 (referee and police checks only) represents a reduction in the current level of
regulation that applies in several jurisdictions and so is likely to result in a significant increase
in serious adverse incidents. While it represents a better approach than Option B2, its overall
benefits, while positive, would be less than those of Option B4, and in the order of a quarter of
those of options B5. Accordingly it is not recommended.
Option B5 would be less effective in reducing harm and is unlikely to have a significant
deterrent effect.
Option B4 (independent risk-based screening) represents the most efficient and effective
approach to worker screening as it would have a strong deterrence effect, would reduce
the potential for people who pose a risk to enter the sector through upfront rigorous
screening, as well as provide a mechanism to remove those proven to pose a risk. This
approach would reduce compliance costs for providers while sending a strong signal about
the priority placed on the right of people with disability to be safe.
Registration and Code of Conduct
Options C1, C2 and C3 provide large gains for suppliers from reduced compliance costs, but at
the cost of participant safety.
They also provide 'benefits' to Government under these options from the reduction in
regulatory workload compared to current systems. In reality, however, this would be more than
80
likely offset by the costs of dealing with complaints and other impacts of the expected 100%
increase in serious adverse incidents that would occur (the primary burden of which falls on
participants). This is regarded as unacceptable.
Option C4 would go further in ensuring adequate levels of service quality, but was felt not to
provide sufficient safeguards in relation to safety.
Under Option C5, the National Standards for Disability Services would be given effect through
a combination of quality assurance requirements proportionate to risk of the supplier (a
function of the supports they provide and the client group they serve), and a code of conduct
which would come into play when a complaint is made, or other information such as a serious
incident suggests investigation is needed. The tiered requirements that would apply under this
option would provide the most effective approach to safeguarding vulnerable people from harm
while also promoting the effective operation of the market, including by giving consumers
greater confidence that supports will meet minimum standards.
Overall this option could be expected to provide a reduction in serious adverse incidents due to
the combination of increased requirements in some jurisdictions, and gains from national
consistency which means suppliers do not need to undergo separate certification processes in
each jurisdiction. It also provides significant efficiency gains compared to the current system
due to the proposed streamlining of requirements and recognition of equivalent system. The
Code of Conduct would provide an educative mechanism and a safety net for participants in
relation to quality and safety, helping to ensure that NDIS objectives are achieved.
Option C5 (Quality assurance requirements for some suppliers) is the preferred option.
Restrictive Practices
Arrangements for NDIS participants who may exhibit behaviours of concern are needed in
order to reduce or eliminate the harms these practices can cause participants, as well as
ensure an effective market that offers choices to participants.
The preferred option, D3, would put in place a legislative framework that implements the
Framework for Reducing and Eliminating Restrictive Practices previously agreed between
governments in order to provide greater transparency and accountability. The legislation
would create an office of the Senior Practitioner (or equivalent) to provide practice leadership
and clinical governance, promote best practice, and with powers to investigate and make
directions. Suppliers of supports to individuals who require positive behaviour support would
be subject to appropriate practice standards in accordance with registration requirements.
This approach would provide transparency and accountability on the use of restrictive
practices, consistent with the requirements of the National Framework. Requirements to report
regularly on the use of restrictive practices, and scrutiny of reports by Positive behaviour
support plan practitioners and the Senior Practitioner would provide a disincentive for
inappropriate use of restrictive practices.
81
Accordingly, over time, this option could lead to a significant reduction in the use of restrictive
practices, reducing the risk of harm to both participants and workers, and improving the quality
of life of participants.
Overall impact
Option 1 Option 2 Option 3 Option 4 Option 5
(status quo) (no
regulation)
A A1: Maintain A2 No A3: Internal A4: na
Complaints current regulatory and external Statutory
and Serious requirements requirements complaint authority
Incidents in each handling oversighting
jurisdiction requirements complaints
and serious
incidents
B1: Maintain B2 Risk B3: Require B4: Require B5: Barred
B Worker current management employers to referee person's list
screening requirements by employers conduct checks +
referee and independent
police checks risk-based
screening
(Working
with
vulnerable
people
check)
C C1: Maintain C2: Voluntary C3: C4: Quality C5: Quality
Registration current Certification Additional evaluation Assurance
and Code of requirements certification
Conduct
D Use of D1: Maintain D2:Registration D3: Prohibit na na
Restrictive current requirements use of
Practices arrangements only restrictive
practices
outside
approved
Positive
behaviour
support
plans, and
require
providers to
report use
against
them
82
States and territories have already implemented substantial regulatory regimes with which
providers must comply. Moving to a national regime based on best practice approaches allows
for the potential elimination and consolidation of existing regulation where possible, and
adoption of more efficient and cost-effective approaches.
Indicative cost benefit modelling of the measures, summarised in Appendix 2, shows that:
the preferred package represents the options with the highest net present value in each
case;
the preferred options are likely to have the biggest impact in reducing serious adverse
incidents and other harms in each case; and
overall, the cost burden on providers and government of an improved regulatory system
are outweighed by the benefits of avoiding harm as a result of the proposals.
In particular, the analysis found that reducing serious cases of harm by one per cent would
deliver benefits totalling $199 million in Net Present Value terms over 20 years (see Appendix
2). As the options have subsequently been modified to reduce compliance costs for business
and improve effectiveness, the final options are likely to yield significantly higher net benefits.
Section 7: Implementation and Review
The RIS should provide information on how the preferred option would be implemented,
monitored and reviewed, COAG Best Practice Guidelines, pg 13
The diagram below outlines where it is envisaged the regulatory components of the Framework
sit and how they are connected.
A Complaints and serious incidents
Under the preferred approach, internal complaints and serious incident handling system
requirements would be assessed as part of the registration process (Option C5 below).
The key powers for a statutory complaints body powers would be to:
receive, investigate and resolve complaints about supports provided to NDIS
participants (including self-managing participants using non-registered suppliers);
oversight serious incidents, adopting a risk management approach, including
providing feedback to suppliers of supports on individual incidents
- this would include all cases involving fraud; serious unexplained injury; death;
allegations of physical or sexual assault of a participant committed by an
employee or another participant; and culpable neglect;
refer complaints and serious incidents to other agencies for action, including police,
other complaints bodies, worker screening units and the NDIS registrar;
provide information, education, training and advice about matters relating to
complaints and serious incident handling to suppliers of supports and participants;
83
identify and address systemic problems; and
report publicly on the number, types and causes of complaints and serious
incidents, including prevention strategies.
The main focus could be on complaints suggesting that a provider (registered or unregistered)
or an individual worker has breached the proposed NDIS Code of Conduct (see Options C5
below). However, people would be able to raise broader issues about service quality, as well
as concerns about safety and abuse and neglect.
It is proposed that an NDIS Complaints Commissioner will receive and support the resolution
of complaints about providers of NDIS-funded supports, receive and investigate serious
incident reports, and investigate potential breaches of the NDIS Code of Conduct. The
Commissioner will refer matters related to non-compliance with provider standards to the NDIS
Registrar, serious incidents related to unmet behaviour support needs to the Senior
Practitioner, matters relating to individual staff to worker screening units, and other matters to
relevant authorities (such as the police, consumer affairs agencies and other regulatory
bodies) as needed.
State and territory governments are continuing to operate their existing complaints schemes in
transition, but the new system will need to be operational for the full scheme. New South
Wales, South Australia and the ACT will reach full scheme in 2018-19, with the remaining
jurisdictions reaching full scheme in 2019-20, noting that discussions are still underway
regarding the future of disability services provision in Western Australia.
To avoid a situation where two complaints systems are operating in parallel, it is proposed that
the national complaints handling function would commence in in NSW, SA and the ACT in
2018-19 and in other jurisdictions in 2019-20. Work would also be required in 2017-18 to
recruit staff and establish a system for collating complaints and serious incidents.
The Commonwealth is giving further consideration to institutional governance options for a
complaints handling body. Regardless of the institutional model that is selected, the complaints
body will have a presence in each jurisdiction to facilitate local investigation of complaints,
however, information will be collated and analysed at a national level in a national office.
Worker screening
Worker screening unit(s) will have responsibility for screening staff before they enter the
workforce and for continuing to monitor whether staff are safe to work with people with
disability. Where relevant, this would include information from the serious incident reporting
system (Option A4).
The NDIS Registrar will have broad responsibility for design, including determining scope,
information to be considered and a decision making framework, and states and territories will
maintain operational responsibility for worker screening including the management and
operation of worker screening units.
84
Registration
NDIS Registrar
The proposed approach would involve establishing an independent NDIS Registrar (or
equivalent) function. A key responsibility of the Registrar would be overseeing a quality
assurance scheme to determine whether providers of supports meet the NDIS Practice
Standards.
The NDIS Registrar will have responsibility for registering providers, managing the NDIS
Practice Standards and certification scheme, monitoring provider compliance with quality and
competency standards, and taking action as required. The Registrar will also monitor, review
and report on the effectiveness of the NDIS market of supports, including anti-competitive
conduct and early indicators of risk of thin markets and market failure.
A key responsibility of the Registrar would be ownership of a quality assurance scheme to
determine whether providers of supports meet the scheme quality and competency standards
(the NDIS Practice Standards) for registration purposes.
Where a supplier is in breach of the NDIS Code of Conduct, or there is a concern brought to
the attention of the Registrar of a serious non-compliance issue, the Registrar will have powers
to obtain information from a number of sources and decide the appropriate action. The
Registrar may impose conditions on a supplier's registration, impose penalties or as a last
resort registration could be revoked.
The Registrar would have a range of other roles in order to drive quality improvement and
promote safety in the disability sector. Consistent with good regulatory practice, it would inform
and empower consumers through awareness of the standards and Code of Conduct. It would
also educate suppliers on their obligations and assist them to comply.
It would gather intelligence on the performance of the sector through the accreditation scheme
and based on patterns of complaints and serious incidents. There would also be a market
oversight role for the Registrar, including scrutiny powers in respect of organisations that are
providing 'difficult to replace' supports, or that have a dominant share of the market in a
particular location, or service type.
National Standards for Disability Services
The National Standards for Disability Services could be included in the legislation or as a
regulatory instrument, and would apply to all registered suppliers of supports under the NDIS.
NDIS Practice Standards
Practice Standards will be the benchmark for quality certification of providers. The certification
requirements will depend on the scope of the service the provider wishes to offer and the
potential risks that may need to be managed to ensure that the supports are both safe and
good quality modular and be consistent with the National Standards for Disability Services. The
development of the Practice Standards will be oversighted by a group with representation from
states and territories, industry groups and representatives of people with disability.
85
Code of Conduct
There will need to be further consultation around the development of the Code.
Transition
Suppliers who are already certified under an existing scheme (including state schemes) would
not be required to seek certification under the NDIS Practice Standards Scheme until their
existing certification expires.
Training and accrediting auditors in the Scheme would commence in late 2016. The scheme
will be open to all auditors accredited by JAZ-ANZ or other body. This will ensure there is a
competitive market for auditors which will help to manage the cost impact on suppliers.
The supplier will have up to 12 months to obtain certification through a full third party audit.
This certification would be valid for three years, during which time the auditors will perform
surveillance audits. At the end of the three year period, suppliers would be required to renew
their certification.
Restrictive Practices
Under the preferred option, registration requirements for those dealing with high risk clients
would apply, and the Senior Practitioner would receive, review and report on provider reports
on use of restrictive practices; and follow-up on serious incidents that suggest unmet behaviour
support needs. The Senior Practitioner will refer concerns about individual worker or provider
non-compliance to the Registrar (Option C5). Participants with identified complex behaviour
support needs will be assessed by an approved positive behaviour support practitioner, funded
through their plans, who will then use the information from the assessment, together with
information from other sources (including the participant, family and key providers), to develop
a positive behaviour support plan for the participant. Approval to include a restrictive practice in
a behaviour support plan will continue to be managed through current state and territory
approval processes.
The NDIS Complaints body would be responsible for determining if there has been a breach.
Depending on the circumstances it may refer the incident to the Senior Practitioner who may
investigate or appoint a Behaviour Support Practitioner to work with the provider to improve
practice in implementing participants' positive behaviour support plans. If it is found that there
is a persistent concern about a provider the NDIS registrar could, on advice from the Senior
Practitioner or complaints commissioner, revoke the provider's registration.
86
Work Flows for an NDIS Complaints Body
87
Review
A review of the NDIS quality and safeguarding framework would commence in mid-2021 (three
years after commencement), with a report to be provided to the DRC by mid-2022. The review
will cover the efficiency and effectiveness of the framework in meeting its objectives, any
unintended consequences arising from their implementation, and any identify any weaknesses
in the regulatory framework.
88
Appendix 1: Proposed NDIS Quality and Safeguarding Framework
The measures described in this RIS are part of a larger proposed framework, summarised in
the table below.
The NDIS Quality and Safeguards Framework
UN Convention on rights of persons with disabilities;
National Disability Insurance Scheme Act 2013
National Disability Strategy 2010-20
DEVELOPMENTAL PREVENTATIVE CORRECTIVE
Building capability Preventing harm and Responding if
and support promoting quality things go wrong
systems
Building Individual formal Universal
INDIVIDUAL individual safeguards including protections -
capability and NDIA risk assessment Protections
Supporting and decision supports and management. outside the NDIS
empowering - skills and (eg. justice)
people with knowledge Links to: Supported and
disability substitute decision- Responding to
Strengthening making (Guardianship complaints
relationships - systems)
families and other Serious incident
support networks Advocacy services - reporting -
externally funded gathering
Information for information and
participants - Links to: National investigating
Accessible Disability Advocacy dangerous
information on how Framework situations
the system works,
rights, support Supports for self- Community
types and service managing participants - Visitors -
quality to effectively and safely responding to
select and manage their reports
supports.
Links to:
Information,
Linkages &
Capacity Building
WORKFORCE Building a skilled Best practice Code of Conduct
Promoting a workforce recruitment/supervision for individual
safe and workers
competent Links to: National (including
workforce Framework for Protecting monitoring
89
Links to: Integrated Australia's Children through
Market, Sector and complaints and
Workforce Strategy Worker screening - serious incident
ensuring staff are safe to reporting systems)
work with people with
disability
SUPPLIERS Capacity building Reducing restrictive Code of conduct
OF & best practice practices - transparency - reporting and
SUPPORTS and reporting investigations
Encouraging Links to: National
safe, Links to: Sector Framework for
innovative, Development Fund Reducing and
high quality Eliminating Restrictive
support Practices
provision
National Standards for
Disability Services,
NDIS Practice
Standards.
Quality Assurance,
Regulation and
Compliance -
proportionate risk-based
requirements
90
Appendix 2: Summary of Cost Benefit Results
In order to assess the net social benefits of the proposed regulatory measures in the NDIS
Quality and Safeguarding Framework, DSS commissioned the NOUS Group to undertake an
Impact Analysis of the proposals set out in the Consultation RIS. The options modelled were
those set out in the Consultation RIS.
The data was not included in the text of the RIS as it should be regarded as broadly indicative
only, given the poor quality of the base data it relies on, and the difficulty of estimating likely
impacts of measures in a dynamic and unpredictable environment. In addition, it is
questionable whether translating serious adverse incidents into monetary terms is appropriate
given that this can downplay the real impact of crimes on victims. Nonetheless, the results can
provide an indication of the possible scale of impacts of the measures. Accordingly, some
indicative results, reworked to reflect changes in the design of the options made in the light of
the consultation and policy development processes, are included here for illustrative purposes.
How the impact analysis was undertaken
The Impact Analysis involved:
Collecting and analysing data sources necessary for the impact analysis. Data
used included two surveys with responses from 289 providers, administrative data from
governments, publically available sources, and expert opinion.
Developing a base case of the current regulatory frameworks in each jurisdiction as
a yardstick against which the impact of each option can be compared.
Conducting a cost-benefit analysis to systematically evaluate the net benefit of each
regulatory option. A dollar value for each safeguard or quality-control mechanism was
calculated, and translated into a net present value figure. Where dollar values could not
sensibly be calculated, the cost benefit analysis takes this into account. In each case a
distribution analysis was undertaken to show how the costs and benefits are distributed
among participants, providers and government.
A regulatory burden analysis to quantify the costs of current and proposed regulation
that fall primarily on businesses. This quantification allows calculations of the degree to
which new regulation adds to the regulatory burden, or is offset by reductions in existing
regulation.
A risk analysis, looking at the likelihood of harm occurring, the consequences of it, and
the cost of reducing or eliminating the risk in order to put the proposals into perspective.
A competition analysis to assess the degree to which the options would be likely to
restrict competition, and therefore to restrict efforts to achieve efficiency and innovation.
Overall the impact analysis found that:
The cost burden on suppliers and government of an improved regulatory system are
outweighed by the benefits of avoiding harm as a result of the proposals. In particular,
the analysis found that reducing serious cases of harm by one per cent would deliver
benefits totalling $199 million in Net Present Value terms over 20 years.
91
Each of the states and territories has already implemented substantial regulatory
regimes with which providers must comply. Moving to an alternative national regime
allows for the potential elimination and consolidation of existing regulation, which in turn
provides a clear opportunity to offset some or the entire regulatory burden that the
Framework might create.
In some cases there is scope to combine several elements of the options in order to
deliver higher net benefits.
92
Key assumptions and methodology
The analysis is primarily based on:
administrative data provided by jurisdictions and employer surveys;
expert consensus on expected impacts of options, combined with analysis of the
research literature.
Serious adverse incident data: Administrative data for 2014 calendar year or 2013-14 financial
year from five jurisdictions (which ones is not specified) have been used to construct an
assumed level of serious adverse incidents.60 The adverse events included for this purpose
are:
assault;
sexual assault;
neglect - defined as failure to attend to a participants basic needs (food, warmth,
cleanliness and health) over a sustained period to an extent that significantly endangers
the participant's physical or mental health;
Theft;
unsatisfactory service - based on complaints rates.
The cost of serious adverse incidents is based on Institute of Criminology cost of crime figures,
summarised in the table below.
SAE type Assumed cost Redress
Assault $5,265 $7,200
Sexual assault $12,450 $15,000
Neglect $5,265 $13,200
Theft $2,553 $7,200
Unsatisfactory $400 $720
service
Base case (Option 1): In each case the effect of the options is compared to a 'base case' (ie do
nothing) of the regulation that currently applies. That is, the base case assumes that current
state and territory regimes will continue to operate. As each jurisdiction currently has different
regimes in place, this means that there are in effect eight different base cases. In order to
produce the model it has been assumed that:
the combination of formal and informal regulation across jurisdictions has similar
impacts overall; and
variation across jurisdictions enables an assessment of an assumed 'unregulated state'.
The theoretical unregulated state was developed by iteratively increasing the rate of serious
adverse incidents to generate a net present value of zero, on the assumption that governments
would not have regulated unless the measure created a positive NPV.
60
Data provided is set out on page 23 of the Report
93
Costs: The key costs included in the modelling are administration costs (for government),
extrapolated from data provided by jurisdictions, and compliance costs (costs for suppliers of
undertaking training, putting in place systems, providing data etc).
Benefits: For each option, the expected impact on each type of serious adverse incidents
included in the data has been estimated. The modelling does not generally capture lesser
harms or indirect benefits of options.
Other key assumptions: For the purposes of the analysis it has been assumed that the full
impact of the options is realised in year 0 (2018), and that the number of participants is
460,000. The assumption is that the combination of formal and informal regulation currently
employed means that current regulatory regimes are sufficiently similar to allow analysis using
all jurisdictions data. The dollar benefits and costs of each option over 20 years are
discounted to take account of the time in which they occur (ie benefits down the track are worth
less than those that occur in early years) and converted into a one year current dollar value.
The discount rate used is 7%.
Sensitivity analysis
In each case the robustness of the results have been tested by varying the key assumptions,
namely:
instead of a discount rate of 7%, use 3% and 10%
vary the assumed rate of change in adverse incidents by plus and minus 5%
market flux - variation in number of providers
construct a best case scenario based on a 20% higher level of benefits and a 20% lower
level of costs
construct a worst case scenario based on 10% lower benefits and 20% higher costs.
Summary of results
In each case NOUS Group estimates have been revised in order to take up suggestions on
combinations of options that would maximise Net Present Value, reflect stakeholder
suggestions in the consultation process, and the policy development process. The revised
estimates should be regarded as indicative only.
Complaints
It has not proved possible to adequately quantify the cost and benefits of the complaints
function since many of the effects (including deterrence, and productivity gains) are likely to be
indirect The final design of the measures has been significantly revised in order to ensure cost
effectiveness.
94
Worker screening
Note: Results for options 4&5 have been revised significantly from NOUS Group estimates in
the light of further analysis and changes in the design in the options. In particular, Option 4
includes ongoing monitoring.
Option Net present value Net present Net present Overall impact
to employers value to value to
participants government
Option 1: $1,692.9m $656.9m $1,094.8m [+$3.44b]
Current regimes
Option 2 -$159.8m 0 0 -$159.8m
(Voluntary)
Option 3 $586.7m $270.4m $453m +$1.31b
(Mandated
referee and
police checks)
Option 4 (WWVP $2.269m $1.622.5m $2716.5m +$6.25b
checks)
Option 5 61 na na na $1.850
(mandatory
reporting &
barring)
Registration and Code of Conduct (including serious incident reporting)
Note: In most cases the 'benefits' and 'costs' are notional changes only.
The analysis assumes that under option 1 suppliers 'voluntarily' undertake quality evaluation or
assurance requirements, and under Options 4 and 5 businesses face additional costs to
comply with registration requirements. This is a notional change only, as suppliers are
currently required to meet these costs in order to obtain government funding under existing
agreements.
61
This is a revised estimate. The original NOUS modelling assumed a higher figure, but subsequent work has
found that it significantly underestimated compliance costs to employers, and significantly over-estimated the
likely impacts. It should be noted though that the actual impacts of this option depend heavily on the
effectiveness of the worker exclusion scheme adopted: complaints-based worker exclusion schemes (such as
code of conduct schemes) are significantly less effective than a Working with Vulnerable People's check system
which pro-actively vet potential workers because of the difficulty of detection of malfeasance and underreporting;
schemes based on mandated reporting of misconduct and alleged crimes are likely to have stronger impacts,
albeit still less than a Working With Vulnerable People check that includes both pre-employment screening and
assessment of any subsequent misconduct.
95
In addition, it is assumed that where business compliance costs lead to a lack of service
provision in thin markets, the government accrues a 'benefit' in terms of avoided costs from not
having to pay for participants' care. In reality, however, under the NDIS in these cases the
NDIA would be required to pay a higher price for services under direct contracting or other
arrangements in order to ensure that participants could access the required services. The
analysis assumed that 20% of providers would be required to undertake a quality evaluation or
assurance.
Indicative costs and impacts per year
Option Net present Net present Net present Net present value
value to value to value to
suppliers participants government 62
Option 1: Base $1.82b
case (Current
regimes)
Option 2: with $927m $324.9m 566.4mm $1.82b
Code of Code
of Conduct
applying to
unregistered
suppliers
Option 3: $139.9m $72m $66m $277.8m
Additional
conditions
tailored to
service type
Option 4: $308.7m $269m $233.6m $811.3m
Independent
quality
evaluation for
certain
supplier types
Option 5: Also $981m $403.3m $844.4m $2228.7b
require certain
suppliers to
participate in a
quality
assurance
system
Source: NOUS Report, pp 114-115 (Note, Option 4 as now specified combines options 3&4 as
recommended in report, plus Code of Conduct for unregistered suppliers, from self-managing
options), pg 147-
.
96
Statement of compatibility with human rights
Appendix 3: Regulatory Costings
Regulatory costings for the National Disability Insurance Scheme Quality and
Safeguarding Framework are set out in the table below. It is estimated there will be a
regulatory saving of $23.185m per annum. This is largely derived from the Provider
Registration and Code of Conduct ($16.91m regulatory saving per annum), where
the main regulatory saving identified is lower fees for service providers resulting from
a streamlined national system where service providers will no longer be required to
undergo multiple third-party verification processes. In addition to this, further savings
are identified under the Worker Screening option ($10.465m regulatory saving per
annum) where the proposed working with vulnerable people checks for disability
workers will allow for a nationally consistent system of worker screening that will shift
the responsibility for undertaking these checks onto worker screening units as
opposed to requiring service providers to obtain and assess police checks
themselves. This option would also provide for improved portability of clearances
between jurisdictions and hence lead to regulatory savings in contrast to existing
arrangements where service providers have to apply for separate clearances in each
jurisdiction.
These regulatory savings are partially offset by some additional regulatory costs for
Complaints and Serious Incident Management ($1.28m regulatory cost per annum)
resulting from more stringent serious incident reporting requirements, as well as for
Restrictive Practices ($2.91m regulatory cost per annum) resulting from a
requirement for all support providers to report each use of restrictive practices (this
currently happens only in Victoria and Queensland
97
Statement of compatibility with human rights
NATIONAL DISABILITY INSURANCE SCHEME (NDIS) QUALITY AND SAFEGUARDING RIS: FINAL REGULATORY COSTINGS' IMPACT ON BUSINESS
* denotes preferred option Annualised Regulatory Cost/Save ($m) (when compared to current/ 'base case' arrangements)
A: Complaints and Serious Incident Management Business
A1: Status Quo $10
A2: Zero regulatory requirements $0
A3: Providers to meet prescribed standards for internal and external complaints handling requirements: $12.63
A4: Establishment of a Disability Complaints Office: $11.09
Total regulatory impact of preferred approach: $1.28m regulatory COST per annum
B: Worker Screening Business
B1: Maintain current requirements $12
B2: Risk management by employers: $0.00
B3: Requirement for Police and Record Checks $17.62
B4: Working with Vulnerable People Clearances $1.85
B5: Creation of a 'Barred Persons' List $4
Total regulatory impact of preferred approach: $10.465m regulatory SAVE per annum
C: Provider Registration and Code of Conduct Business
C1: Implementation of a Basic Registration Scheme $45.89
C2: Voluntary Certification $0.00
C3: Additional Registration Conditions tailored to service type $1.71
C4: Mandated independent quality evaluation requirements for certain provider types $16.98
C5: Requirement for certain providers to participate in a Quality Assurance system $28.98
Total regulatory impact of preferred approach: $16.91m regulatory SAVE per annum
D: Reduction and Elimination of Restrictive Practices (authorisation model) Business
D1: Maintain current arrangements $2.39
D2: Registration requirements only $0.00
D3: Prohibit use of restrictive practices outside of approved Behavioural Support Plans $5
Total regulatory impact of preferred approach: $2.91m regulatory COST per annum
TOTAL REGULATORY SAVE ACROSS PACKAGE: $23.185m
98
Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND
SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of this Bill
The National Disability Insurance Scheme Amendment (Quality and Safeguards
Commission and Other Measures) Bill 2017 (the Bill) establishes an independent
national Commission and Commissioner, to protect and prevent people with
disability from experiencing harm arising from poor quality or unsafe supports or
services under the National Disability Insurance Scheme (NDIS). This Bill also
makes minor amendments in response to an independent review of the National
Disability Insurance Scheme Act 2013 (the Act). The Bill aims to maintain, protect
and enhance public trust and confidence in the NDIS; and to support and sustain a
robust, vibrant, independent and innovative NDIS market.
In February 2017, the Disability Reform Council released the NDIS Quality and
Safeguarding Framework (the Framework) which was developed in consultation with
key stakeholders, including people with disability, their families and carers and
providers as well as peak bodies. The Bill is an important step towards
implementing the Framework and giving effect to the Commonwealth Government's
regulatory responsibilities under the Framework.
The Commissioner will be responsible for overseeing quality and safeguards for the
full implementation of the NDIS, including information, linkages and capacity building
supports for people with disability. The Commissioner will also oversee quality and
safeguards in relation to other programs prescribed under the NDIS Rules. For
example, Commonwealth- funded advocacy services and the Commonwealth
Continuity of Support (CoS) Program - Specialist Disability Services for Older
People which will be provide continuity of support for older people with disability who
are currently receiving specialist disability services but who are not eligible to be
NDIS participants. Providers of supports under these programs will be covered by
the Framework and this Bill.
The Bill establishes compliance, complaints and risk management arrangements for
the registration and regulation of NDIS providers, including practice standards, a
code of conduct and mechanisms for complaints and reportable incidents. The
Commissioner will also be responsible for national oversight and policy setting in
relation to worker screening and behaviour support, with the aim of reducing and
eliminating restrictive practices.
1
Statement of compatibility with human rights
The proposed amendments mean that people with disability, their families and carers
will have a single body to raise concerns about the quality of supports or services.
The Commission will also be the source of nationally consistent and transparent
information about registered NDIS providers, including for example, what supports
they are registered to provide, whether the provider has been subject to any
compliance or enforcement action and contact details for those providers.
Disability services delivered through other service systems, such as health,
education and justice, will continue to be covered by existing quality and safeguards
arrangements for those systems. Universal complaints and redress mechanisms,
including police, fair trading bodies, professional and industry bodies, consumer
protection laws and other regulatory and complaints systems will continue to be
available to both NDIS participants and people with disability outside the NDIS. The
complex interface with mainstream services will be managed by effective information
sharing arrangements between the Commission, the National Disability Insurance
Agency (the Agency) and State, Territory and other Commonwealth regulatory
bodies in the course of regulating NDIS providers.
This Bill will further the objects and principles of the Act and support the capacity of
people with disability to exercise informed choice and control in the planning and
delivery of supports and services under the NDIS. For providers, the new national
system will enable a single registration and regulatory system across participating
jurisdictions, reducing duplication and providing national consistency.
Background
In 2013, after the 2011 Productivity Commission Disability Care and Support inquiry
report found that 'current disability support arrangements are inequitable,
underfunded, fragmented and inefficient, and give people with a disability little
choice' (Overview, p. 5), the Parliament of Australia established a national disability
insurance scheme through the Act.
The amendments in this Bill are an important step in giving effect to the commitment
by the Commonwealth, State and Territory governments to protect people with
disability from harm arising from poor quality or unsafe supports provided under the
NDIS. The amendments will also improve the operation of the Act in working
towards the full implementation of the NDIS which will see 460,000 Australians
become participants in the NDIS by 2020.
The NDIS represents a departure from traditional arrangements for providing
government-funded disability services in Australia. It is a cooperative venture, with
the Commonwealth, States and Territories operating as partners under the umbrella
of COAG. It was in the spirit of this cooperation that the Framework was developed
and released to the public in February 2017.
Prior to the NDIS, disability services were provided under funding agreements, which
enabled governments to manage quality and safeguards largely through contract
management. Over time the NDIS will change the dominant disability service
funding model from a block-funded, grant-based system to a demand-driven market-
based approach.
2
Statement of compatibility with human rights
Quality and safeguards arrangements vary between State, Territory and
Commonwealth funded services. There is fragmentation within and between
systems and a series of recent inquiries and reports have documented the
weaknesses of the current safeguarding arrangements for disability services. These
inquiries include the recent Senate Inquiry into Violence, Abuse and Neglect against
People with Disability, two recent Victorian inquiries, and the Royal Commission into
Institutional Responses into Child Sexual Abuse. The inquiries have found failures
to uncover and report abuse, inadequate screening of workers, and dislocated
regulatory arrangements. The current system, if continued in the longer term, will
pose a significant risk to ensuring quality supports and participant safety, particularly
in an immature and rapidly developing NDIS market.
On full implementation of the NDIS, the Commonwealth will assume responsibility for
the operation of the NDIS and, with it, the majority of the financial and reputational
risks associated with the NDIS. The risks are considerable. The NDIS market is
rapidly expanding and services are being delivered to a vulnerable group of
Australian people, in relation to whom, recent inquiries have revealed existing
widespread abuse in the sector.
A new, nationally consistent approach to quality and safeguards is the key strategy
to mitigate the risks. It is required to ensure the new market-based system delivers
supports and services safely to people with disability, are of an appropriate standard
and are delivered in a way that promotes choice, control, dignity, and upholds basic
human rights.
This Bill is intended to balance the need to provide appropriate protections that meet
the Commonwealth's obligations in relation to the regulation of NDIS funded
supports and services, with the need to respect the dignity and decisions that
participants make in pursuing their goals. It is also intended to suit an emerging
market-based system, in which participants are building their capability to act as
informed 'consumers', the workforce is growing rapidly, and new providers are
regularly entering the market with innovative ideas and different models of providing
supports and services.
This Bill complements and strengthens existing measures to remove discrimination
against people with disability in Australia, and to provide them with support and
assistance, such as the Disability Discrimination Act 1992, the provision of income
support through the Disability Support Pension, Carer Payment and Carer
Allowance, the National Disability Strategy and the National Disability Agreement.
3
Statement of compatibility with human rights
The National Disability Insurance Scheme Amendment (Quality and
Safeguards Commission and Other Measures) Bill 2017
This Bill has two Schedules:
Schedule 1 establishes the NDIS Quality and Safeguards Commission and will
be progressively enacted in State and Territory jurisdictions, similar to the
staggered NDIS rollout.
Schedule 2 sets out the agreed amendments resulting from an independent
review of the Act, which was completed in late 2015. The aim of the review was
to ensure that the Act is operating in a way that is effective for the purposes of
the full implementation of the NDIS.
Consultation - the Framework
The Framework was developed collaboratively by the Commonwealth, State and
Territory governments. Governments developed a consultation paper, followed by a
range of meetings and workshops with stakeholders, providers and the public. The
Commonwealth Department of Social Services received 220 submissions and 585
questionnaire responses.
A consultation draft of Schedule 1 to this Bill was circulated amongst governments
and peak bodies representing people with disability and service providers.
Consultation - Independent review of Act
The independent review of the Act's operation was undertaken by a professional
consultancy firm, Ernst and Young. In the course of conducting the review, the
reviewers consulted with stakeholders in a public submission process (receiving 86
submissions) and held targeted interviews with over 100 representatives from
government and peak bodies.
Following the review, Ernst and Young provided a report to the Minister for Social
Services, containing 33 recommendations, many of which require amendments to
the legislation underpinning the NDIS. The Minister provided a copy of it to COAG,
which provided its views on the recommendations in a formal response. The
Department of Social Services consulted with States, Territories and the National
Disability Insurance Agency, releasing a consultation paper and seeking feedback,
prior to finalising the amendments outlined in Schedule 2 to this Bill.
Human rights implications
The Bill advances the protection of the rights of people with disability in Australia
consistent with the Convention on the Rights of Persons with Disabilities (CRPD)
and engages the following rights under international human rights law:
the rights of people with disabilities in the CRPD, especially Articles 3, 4, 8, 11,
12, 13, 16, 17, 19, 20, 21, 22, 26, 28, 30 and 31;
Articles 23 and 34 of the Convention on the Rights of the Child (CROC);
4
Statement of compatibility with human rights
Articles 6, 7(b) and 9 of the International Covenant on Economic, Social and
Cultural Rights (ICESCR); and
Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
The Bill provides for information gathering and disclosure powers which limit the right
to privacy under article 22 of the CRPD and article 17 of the ICCPR but those
limitations are considered to be proportionate and subject to detailed consideration
below.
General principles underpinning the CRPD
The Convention on the Rights of Persons with Disabilities (CRPD) recognises the
barriers that people with disability may face in realising their rights. While the rights
under all human rights treaties apply to everyone, including people with disability, the
CRPD applies human rights specifically to the context of people with disability.
Article 4(3) of the CRPD states that 'in the development and implementation of
legislation and policies to implement the present Convention, and in other decision-
making processes concerning issues relating to persons with disabilities, State
Parties shall closely consult with and actively involve persons with disabilities,
including children with disabilities, through their representative organisations'.
The preamble of the CRPD, and the general principles and obligations set out in
Articles 3 and 4 reflect the need for the respect for the inherent dignity, individual
autonomy (including the freedom to make one's own choices and the independence
of the person), the need for people with disability to be able to participate fully and
effectively and be included in society, the need for respect for difference and
acceptance of people with disability as part of human diversity and providing people
with disability the opportunity to be involved actively in decision-making processes
about policies and programmes, including those directly concerning them.
CRPD rights positively engaged by the Bill
The establishment of the NDIS promotes the rights of people with disability in
Australia by providing access to nationally consistent funding and support to help
them realise their aspirations, and to participate in the social and economic life of the
community.
The relevant human rights which are promoted are those related to the provision of
services through the NDIS including the rights of persons with disability to live
independently and be included in the community (CRPD, article 19), to personal
mobility (article 20), to enjoy the highest attainable standard of health (article 25), to
habilitation and rehabilitation (article 26) and to an adequate standard of living for
themselves and their families (article 28).
Schedule 1 of the Bill
Objects, functions and principles
The establishment of the Commission and Commissioner (new Chapter 6A, Parts 1
and 2) promotes the rights of persons with disability consistent with Australia's
5
Statement of compatibility with human rights
obligations, by ensuring that the supports and services provided through the NDIS
are as safe and effective as possible
The general objects and principles of the Act in sections 3 and 4 align closely with
the CRPD principles and will underpin the activities of the Commission and the
Commissioner. The amendments contained in Schedule 1 of the Bill are also closely
aligned with the existing objects of the Act in section 3. In particular, it will:
enable people with disability to exercise choice and control in the pursuit of
their goals and the planning and delivery of their supports (subsection
3(1)(e));
facilitate the development of a nationally consistency approach to the access
to, and the planning and funding of, supports for people with disability
(subsection 3(1)(f)); and
promote the provision of high quality and innovative supports that enable
people with disability to maximise independent lifestyles and inclusion in the
community (subsection 3(1)(g)).
A new object to be inserted into section 3 of the Act will be to protect and prevent
people with disability from experiencing harm arising from poor quality or unsafe
supports or services provided under the NDIS (new subsection 3(1)(ga)).
In performing his or her functions, new subsection 181D(3) provides for the
Commissioner to have regard to the interests and needs of persons receiving, or
eligible to receive, supports or services under the NDIS.
New subsection 181D(4) requires the Commissioner to use his or her best
endeavours to provide opportunities for persons with disability to participate in
matters that relate to them and for the Commissioner to take into consideration their
wishes and views.
Additionally, the Bill stipulates that, if actions or decisions are required to be made on
behalf of others, the following principles apply and will extend to activities of the
Commissioner:
people with disability should be involved in decision making processes that affect
them, and where possible make decisions for themselves;
people with disability should be encouraged to engage in the life of the
community;
the judgements and decisions that people with disability would have made in
relation to the act or thing should be taken into account;
the cultural and linguistic circumstances of people with disability should be taken
into account; and
the supportive relationships, friendships and connections with other people with
disability should be recognised.
6
Statement of compatibility with human rights
Registration and regulation of NDIS providers
The arrangements in respect of the registration of NDIS providers, including
imposing conditions on, suspending or revoking their registration (new Part 3A,
Division 1A as well as Division 7), the NDIS Practice Standards (Division 3), the
NDIS Code of Conduct (Division 4) and the compliance and enforcement provisions
(Division 8), are necessary measures to ensure the protection and safety of people
with disability in situations of risk (CRPD, article 11). The NDIS Code of Conduct will
apply to all providers, regardless of whether they are registered and will be used to
prevent exploitation, violence and abuse of people with disability by providers and
workers.
CRPD article 16(3) also obliges State Parties to ensure that, in order to prevent the
occurrence of all forms of exploitation, violence and abuse, all facilities and
programmes designed to serve persons with disability are effectively monitored by
independent authorities.
Information management
The power of the Commissioner to collect information to ensure the integrity of the
NDIS as well as provisions protecting that information, including the creation of
offences (new section 55A, Part 1, Division 2), promote the rights of persons with
disability consistent with Australia's obligations by enabling the exchange of
information to ensure that supports and services provided through the NDIS are as
safe and effective as possible. These amendments are considered in further detail
below to the extent to which they may limit the right to privacy under article 22 of the
CRPD and article 17 of the ICCPR.
Complaints and incident management
The establishment of the Commission will enable anyone including Australians with
disability and their families and carers to make complaints about NDIS supports and
services and report incidents that impact on the quality and safety of supports.
The Commissioner will have monitoring, investigation and enforcement powers
including compliance notices, infringement notices, civil penalties, court enforceable
undertakings, injunctions, registration suspension and revocation and ban orders.
In respect of the complaints management and resolution (Division 5) and incident
management provisions (Division 6), those provisions implement or aim to
implement the obligation on State Parties to take all appropriate legislative and other
measures to protect persons with disabilities from all forms of exploitation, violence
and abuse (CRPD, article 16(1)) and to ensure that instances of exploitation,
violence and abuse against persons with disability are identified, investigated and,
where appropriate prosecuted (article 16(5)).
The amendments which enable complaints including the complaints management
and resolution scheme (new section 73X) and the Commissioner's complaints
function (new section 181G) are formulated to ensure compliance with article 13 of
the CRPD. This requires that persons with disabilities have effective access to
justice on an equal basis with others.
7
Statement of compatibility with human rights
The Bill also includes 'whistle blower' protections for certain persons who make a
disclosure in relation to an NDIS provider. Persons protected include a person with
disability who is receiving a support or service from an NDIS provider, and a
nominee, family member, carer or significant other of that person. This protection
ensures that a person is not victimised because they have made a disclosure in
relation to an NDIS provider. In particular, victimisation includes a provider
interrupting or detrimentally altering the service or support it provides to a person
with disability.
Behaviour support functions
The functions of the Commissioner in relation to behaviour support and the reduction
and elimination of the use of restrictive practices (new section 181H and Division 2 of
Part 3A) is considered in further detail below.
Children
Article 23 of CROC recognises the rights of children with disability. The CRPD
applies to children; however, a child with disability has additional rights under CROC.
In this context, Article 34 of CROC requires that children be protected from sexual
exploitation and sexual abuse and in addition, Article 19 requires that children who
are under the care of family or other people are protected from a number of kinds of
abuse. As the NDIS is designed for both people with severe disability and people -
including children - who require early intervention to prevent them developing a
severe disability later in life, NDIS participants who are children will also be protected
by the safeguards provided for in Schedule 1 to this Bill.
Schedule 2 of the Bill
The proposed amendments to the Act in Schedule 2 of this Bill also serve to
advance the rights of people with disability in strengthening and clarifying the
operation of the Act and the NDIS.
Detailed consideration of rights engaged by Schedule 1
Commissioner's functions in relation to behaviour support and the reduction
and elimination of restrictive practices
The reduction and elimination of restrictive practices engage the following rights:
• the right to equal recognition before the law and to exercise legal capacity
in article 12 of the CRPD;
• the right of persons with disabilities to physical and mental integrity on an
equal basis with others in Article 17 of the CRPD;
• the right to liberty and security of the person in Article 9 of the ICCPR,
Article 5 of the Convention on the Elimination of Racial Discrimination
(CERD), Article 37 of the CROC, noting Australia has a reservation to
Article 37(c), and Article 14 of the CRPD (noting Australia has a
reservation);
• the right to freedom from exploitation, violence and abuse in Article 16 of
the CRPD; and
8
Statement of compatibility with human rights
• the protection against cruel, inhuman or degrading treatment or
punishment in Article 7 of the ICCPR, Article 37 of the CROC and Article
15 of the CPRD.
Article 14(1) of the CRPD provides that State Parties shall ensure that persons with
disabilities, on an equal basis with others, enjoy the right to liberty and security of
person and 'are not deprived of their liberty unlawfully or arbitrarily, and that any
deprivation of liberty is in conformity with the law, and that the existence of a
disability shall in no case justify a deprivation of liberty'. Article 14 of the CRPD has
similarities to aspects of article 9 of the International Covenant on Civil and Political
Rights (ICCPR).
The United Nations Committee on the Rights of People with Disabilities (UNCRPD)
has expressed concern about the unregulated use of restrictive practices and
recommended that State parties take immediate steps to end such practices.
Consistent with the CRPD, Commonwealth, State and Territory Governments
endorsed the National Framework for Reducing and Eliminating the Use of
Restrictive Practices in the Disability Service Sector in 2014 (the Restrictive
Practices Framework).
The Restrictive Practices Framework outlines high-level guiding principles (such as
human rights and a person-centred approach), and core strategies, including use of
data to inform practice and workforce development. These principles and strategies
underpin the approach taken in the NDIS Quality and Safeguarding Framework. The
establishment of the Commissioner's behaviour support functions will align with the
commitment of all Australian governments to reduce and eliminate the use of
restrictive practices in disability services and with Australia's obligations under the
CRPD and ICCPR.
The implementation of the Commissioner's behaviour support functions through this
Bill will assist Australia in meeting these obligations in the context of the NDIS by
providing for nationally consistent regulatory and registration arrangements for
providers engaged in developing and implementing behaviour support plans
including those which may include a restrictive practice (new section 181H and
Division 2 of Part 3A).
New section 181H outlines the functions of the Commissioner to provide leadership
in behaviour support, and in the reduction and elimination of the use of restrictive
practices, by NDIS providers, including by:
building capability in the development of behaviour support through:
o developing and implementing a competency framework for registered
NDIS providers whose registration includes the provision of behaviour
support assessments and developing behaviour support plans; and
o assessing the skills and experience of such providers against the
competency framework; and
9
Statement of compatibility with human rights
developing policy and guidance materials in relation to behaviour support
and the reduction and elimination of the use of restrictive practices by
NDIS providers; and
providing education, training and advice to promote the use of behaviour
supports and to reduce and eliminate the use of restrictive practices; and
overseeing the use of behaviour support and restrictive practices by;
o monitoring registered NDIS provider compliance with the conditions of
registration relating to behaviour support plans; and
o collecting, analysing and disseminating data and other information
relating to the use of behaviour supports and restrictive practices by
NDIS providers; and
undertaking and publishing research to inform the development and
evaluation of the use of behaviour supports and to develop strategies to
encourage the reduction and elimination of restrictive practices by NDIS
providers.
Restrictive practices are defined to mean any intervention that has the effect of
restricting the rights or freedom of movement of a person with disability. This
includes the use of seclusion, as well as chemical, mechanical and physical restraint,
psycho-social and environmental restraints, and consequence driven practices
(usually involving withdrawal of activities or items).
These functions will be implemented largely through the registration arrangements
for providers (Division 2 of Part 3A).
Behaviour support practitioners who will be engaged in the development of
behaviour support plans will be required to meet the competency framework
established by the Commissioner. Behaviour support practitioners, and any
providers implementing an authorised restrictive practice under a behaviour support
plan, will be required to be registered under the rules to be developed for new
section 73B.
Where a behaviour support practitioner is registered to develop a behaviour support
plan for a participant and the plan includes the use of restrictive practices, the
restrictive practice will need to be authorised through the relevant State or Territory
system. The Commissioner will not have any role in authorising the use of restrictive
practices; rather he or she will have a monitoring, oversight, reporting and clinical
leadership role in promoting the use of behaviour supports and the reduction and
elimination of restrictive practices.
As part of the registration process, practice standards (new section 73T) will require
providers to ensure that workers are appropriately trained to deliver the supports in
line with a behaviour support plan.
Providers implementing behaviour support plans that contain a restrictive practice
will be required to lodge those plans with the Commissioner (new section 73H). In
10
Statement of compatibility with human rights
addition providers will also be required to submit any interim or short term plans that
contain restrictive practices.
As part of their conditions of registration, providers will be required to comply with
relevant state or territory authorisation or consent processes in relation to the use of
restrictive practices.
Providers will be required to report any use of a restrictive practice to the
Commission (new section 73H).
Any unauthorised use of a restrictive practice, including emergency use, will be
required to be reported to the Commission as a reportable incident (new section
73Z(4)).
Oversight of behaviour support and use of restrictive practices
The Commission will provide leadership in behaviour support through guidance,
education and advice to the sector, the Agency, NDIS participants and their families
and carers, with a view to building capability in behaviour support and reducing and
eliminating the use of restrictive practices.
To inform and implement this function the Commission will collect information and
data from relevant persons and bodies, analyse this information to identify patterns,
trends and anomalies in the use of behaviour supports and restrictive practices and
report on the use of restrictive practices to the Ministerial Council, including policy
issues and recommendations.
Any information indicating provider non-compliance with the law and associated
registration requirements regarding behaviour support and the use of restrictive
practices may invoke a regulatory response including investigation, referral to police
and sanctions such as suspension or revocation of registration.
Information sharing arrangements discussed below will enable a co-ordinated
regulatory response and protection and support for people with disability.
Over time the Commission will build up significant information about what is
happening across Australia in terms of the authorisation and use of restrictive
practices in the NDIS. It will have an important leadership role in working with states
and territories to improve existing arrangements to reduce and eliminate such
practices.
Information gathering and disclosure powers
Article 22 of the CRPD provides that no person with disability, regardless of place of
residence or living arrangements, shall be subjected to arbitrary or unlawful
interference with his or her privacy, family, home or correspondence or other types of
communication, or to unlawful attacks on his or her honour and reputation. It also
provides that the privacy of personal, health and rehabilitation information of people
with disability should be protected on an equal basis with others. This right contains
similar protections to those in Article 17 of the ICCPR.
11
Statement of compatibility with human rights
Under new section 55A, the Commissioner will have the power to obtain information
from persons on reasonable grounds provided that it is relevant to certain
enumerated matters for example, whether a registered NDIS provider is meeting
conditions of registration or complying with the NDIS Code of Conduct. Under new
subsections 56(4) and (5), a person may be required to appear before a specified
officer to answer questions. Refusal or failure to comply with a requirement to give
information to the Commissioner will be an offence under subsection 57(1).
The Bill includes the following safeguards:
• Under subsection 56(1) the Commissioner will be required to give written
notice of the requirement to give information;
• New section 67A sets out the limited circumstances in which a person may
make a record of, disclose or use Commission information;
• New sections 67B - 67D create offences for unauthorised access to, use
or disclosure of, soliciting disclosure of and offering to supply Commission
information;
• New section 73AA sets out disclosures qualifying for protection and new
section 73AB sets out when a disclosure will not be actionable;
• The Commissioner will not be able to make any disclosures without NDIS
rules having been made for the purposes of new section 67F; and
• New section 67G protects certain documents from production to court
except for the purposes of the Act.
These powers engage the right to protection against arbitrary and unlawful
interferences with privacy found in article 17 of the ICCPR and article 22 of the
CRPD. Consistent with the provisions of article 31 of the CRPD, relating to statistics
and data collection, information may be disclosed or used for the specific purposes
provided under the legislation, or under the NDIS rules to be made for the purposes
of the Act (new section 67A).
The legitimate object of these amendments is to ensure that the Commissioner has
access to information in response to allegations of provider non-compliance to be
able to take immediate action to ensure the safety of people with disability and the
quality of NDIS supports. The amendments enable appropriate safeguards to be
applied in relation to the handling of sensitive information.
The amendments are necessary to provide a mechanism for the Commissioner to
gather relevant information, particularly in relation to unregistered providers in
response to allegations or information that a provider is not complying with its
obligations. Without the amendments, the Commissioner will not be able to fulfil its
object to protect and prevent people with disability from experiencing harm arising
from poor quality or unsafe supports or services provided under the NDIS.
The amendments include protections to encourage the appropriate use of
information and ensure that such information is not used for personal or other gain.
Information provided and stored in Commission records about a person is defined to
be protected Commission information (section 9). The stringent conditions attached
to the treatment of protected Commission information under this Bill also serve to
support and protect the right to privacy under the CRPD and ICCPR.
12
Statement of compatibility with human rights
New subsection 67E(1) enables the Commissioner to disclose information if he or
she is satisfied on reasonable grounds that it is necessary in the public interest, to
such persons and for such purposes as the Commissioner determines. New section
67F will set up rules to guide the Commissioner in the exercise of this disclosure
power which will themselves include safeguards. The Commissioner cannot make
any disclosures without NDIS rules having been made for the purposes of new
section 67F.
The Commission will receive information from a variety of sources about potential
abuse, neglect or exploitation of people with disability. That information may reveal
abuse which is happening outside the context of NDIS supports and services and
require co-ordination with the family or carers of people with disability or relevant
Commonwealth and State and Territory bodies.
Recent inquiries into abuse have emphasised that system-level oversight is required
to ensure reportable incidents are thoroughly investigated, responses are co-
ordinated, and systemic issues are identified and addressed. The Commission will
need to work with mainstream systems within States and Territories including child
protection agencies and guardianship boards when it receives information about
abuse, neglect or exploitation. The mainstream systems in States and Territories
which are responsible for responding to allegations of neglect and abuse vary
considerably and will further change with the establishment of the Commission.
The legitimate object of these amendments is to ensure that the Commission can
share information to enable the thorough investigation and co-ordinated response in
relation to a reportable incident or allegation of abuse or neglect. The Commissioner
will be operating within the context of complex mainstream services including bodies
responsible for acting on information that may indicate a serious threat to an
individual's life, health or safety. As each State and Territory transitions from
existing disability safeguarding arrangements, it is necessary to ensure that
appropriate information gathering and disclosure provisions can operate to take
immediate action to protect vulnerable people at risk.
The amendments are a necessary, reasonable and proportionate approach to
achieving the legitimate objective for a number of reasons.
The amendments are proportionate as the Commissioner must be 'satisfied on
reasonable grounds' that a disclosure is necessary in the public interest. Including
an element of reasonableness mitigates the risk that this provision will operate in a
manner that is inconsistent with international human rights law. The rules will
enumerate specific bodies and purposes for which the Commissioner may disclose
information in the public interest and include limitations on the further use and
disclosure of such information. Further laws exist to protect information when it is
received by the Commission or disclosed in the public interest. Most NDIS providers
are covered by the Privacy Act 1988 (Cth) as they would fall within the definition of a
health service provider. The Privacy Act 1988 (Cth) protects privacy by regulating
the collection, use and disclosure of personal information, including health
information and state and territory privacy laws and guidelines further operate to
protect privacy. Importantly, this means that any party or agency to which
information will be disclosed has its own legal obligations concerning the collection,
storage and use of personal information.
13
Statement of compatibility with human rights
Review of Decisions
Article 12(4) of the CRPD requires signatories to the CRPD to ensure that all
measures that relate to the exercise of legal capacity provide for appropriate and
effective safeguards to prevent abuse in accordance with international human rights
law. Such safeguards shall ensure that measures relating to the exercise of legal
capacity respect the rights, will and preferences of the person, are free of conflict of
interest and undue influence, are proportional and tailored to the person's
circumstances, apply for the shortest time possible and are subject to regular review
by a competent, independent and impartial authority or judicial body. The
safeguards shall be proportional to the degree to which such measures affect the
person's rights and interests. This is relevant also to NDIS providers to ensure that
decisions made that may adversely affect the provision of supports to a number of
NDIS participants (for example, by banning a provider from providing a certain
support to them) are made fairly and reasonably.
Schedule 1 to this Bill provides additional rights under the Act for review of decisions
in relation to NDIS providers. These additional reviewable decisions are:
a decision to refuse to register a person as a registered NDIS provider;
a decision to impose conditions to which a person's registration as a registered
NDIS provider is subject;
a decision to vary, or refuse to vary, the registration of a registered NDIS
provider;
a decision to suspend the registration of a registered NDIS provider;
a decision to revoke, or not to revoke, the registration of a person as a registered
NDIS provider;
a decision to make a banning order;
a decision to vary, or to refuse to vary or revoke, a banning order; and
a decision to give a compliance notice to an NDIS provider.
Written notice of a person's review rights must be given to NDIS providers when a
reviewable decision is made, as well as details of how to request a review. The
reviewer must not have been involved in the original decision, and must confirm the
original decision, vary it, or set it aside and substitute a new decision. The legislation
provides a further avenue of review to the Administrative Appeals Tribunal.
Worker screening
Article 6 of ICESCR recognises the right to work and 'includes the right of everyone
to the opportunity to gain his living by work which he freely chooses or accepts'.
This right also applies to workers who work with people with disability, including
NDIS participants.
14
Statement of compatibility with human rights
The right to work is engaged by new subsection 181F of the Bill which provides for
the Commissioner to monitor registered NDIS provider compliance with their
conditions of registration, including in relation to the screening of workers.
A core function of the Commissioner in new paragraph 181E(f) is to develop and
oversee the broad policy design for a nationally consistent approach to the screening
of workers involved in the provision of supports and services to people with disability
under the NDIS.
The function of screening workers will remain with States and Territories. It is
envisaged that the national approach to be developed will require people who
provide NDIS supports that entail more than incidental contact with a participant will
be required to undergo and pass worker screening to be able to deliver supports to
NDIS participants. A registered NDIS provider will be required to ensure that its
workers have undergone the necessary screening processes as part of their
registration requirements.
The legitimate object of these amendments is to support the rights of people with
disability by ensuring they have access to quality and safe supports and services
under the NDIS. A nationally consistent approach to worker screening is an
important element of this system that minimises the risk of harm to people with
disability from the people who work closely with them. While the primary
responsibility for recruiting and providing a safe environment for people with disability
rests with employers (including sole traders and self-employed), a worker screening
outcome is one source of information that can support employers in fulfilling this
responsibility.
The purpose of nationally consistent and recognised worker screening includes:
• sending a strong signal to the community as a whole about the priority
placed on the rights of people with disability to be safe and protected;
• reducing the potential for providers to employ workers who pose a high
risk of harm to people with disability;
• prohibiting those persons, that pose a high risk or are proven to have
harmed vulnerable people, from working in the sector; and
• deterring individuals who pose a high risk of harm from seeking work in the
sector.
The NDIS worker screening policy including information sources to be considered by
State and Territory worker screening units, will take into account the
recommendations of the Royal Commission into Institutional Responses to Child
Sexual Abuse, Working with Children Checks Report. This recognises that NDIS
participants are amongst the most vulnerable people in the community and also that
people with disability have the right to be protected from exploitation, violence and
abuse.
Under the Framework and Schedule 1 to this Bill, the Commission will have
oversight and broad policy responsibility for worker screening for people who provide
support to NDIS participants. The amendments are a reasonable, necessary and
proportionate approach to achieving the objective. A person is not prevented from
15
Statement of compatibility with human rights
choosing to work in the NDIS market, but they will have to show they are suitable for
certain high-risk work with the most vulnerable people with disability.
Conclusion
The National Disability Insurance Scheme Amendment (Quality and Safeguards
Commission and Other Measures) Bill 2017 is compatible with human rights
because it advances the protection of human rights. In particular, Schedule 1 to this
Bill advances the protection of the rights of people with disability in Australia
consistent with the CRPD, particularly in relation to preventing exploitation, violence
and abuse in the disability sector.
The proposed amendments to the Act in Schedule 2 of this Bill also serve to
advance the rights of people with disability in strengthening and clarifying the
operation of the Act and the NDIS.
In addition to the Commission addressing complaints and reportable incidents, there
are a number of other bodies who act as an independent voice promoting the rights
of people with disability and resolving complaints about disability services. The
Commission will be working closely with the range of these organisations to
collectively address quality and safety issues in the NDIS.
To the extent that this Bill limits human rights in some circumstances, those
limitations are reasonable, necessary and proportionate to ensure the long term
integrity, safety and sustainability of the NDIS.
[Circulated by the authority of the Minister for Social Services,
the Hon Christian Porter MP]
16