Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND
SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Social Services, the Honourable Christian Porter MP)
1
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (QUALITY AND
SAFEGUARDS COMMISSION AND OTHER MEASURES) BILL 2017
This addendum responds to comments raised by the Senate Standing Committee for
the Scrutiny of Bills in Scrutiny Digest No. 8, dated 9 August 2017.
NOTES ON ITEMS
New section 67E - Disclosure of information by Commissioner
On page 12, after paragraph 57 insert:
"In relation to the requirement that the rules be made to regulate the exercise of the
Commissioner's powers, the intention of the reference in subsection 67E(2) to 'the
NDIS rules' rather than 'any NDIS rules', is that the Commissioner can only make
disclosures under the relevant provisions if there are rules in place. In other words,
the existence of the rules is a condition precedent, the satisfaction of which is
necessary before a disclosure can be made. It is the intention that these rules be
made to commence at the same time as Schedule 1 of the Bill establishing the
Commission.
On page 12, after paragraph 59 insert:
"States and Territories will remain responsible for quality and safeguards
arrangements for mainstream services to people with disability such as health,
education and child protection. It will therefore be necessary to adapt rules and
guidance about the exercise of the Commissioner's disclosure power to the
arrangements in each State and Territory during transition to the Commission's
regulatory arrangements for NDIS providers."
On page 12, after paragraph 62 insert;
"The Bill inserts a new paragraph 181D(4)(a) into the Act which provides for the
Commissioner to 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 in relation to those
matters. This will guide the Commissioner in exercising discretion about whether to
disclose information."
New section 73V - NDIS Code of Conduct
On page 28, after paragraph 163 insert:
"The NDIS Code of Conduct will cover a diverse range of NDIS providers (both
registered and unregistered), from lawn mowing services through to providers of
residential accommodation for people with disability. It is the mechanism through
which participants will be empowered to enforce standards of conduct and service to
which an appropriate and escalating range of sanctions will apply. The NDIS Code
of Conduct will need to be subject to regular review and consultation to ensure that it
is responsive to the needs and expectations of people with disability, providers and
2
the community in terms of the appropriate standards and quality and safety of NDIS
funded supports and services.
In addition to the consultation obligations in section 17 of the Legislation Act 2003
which apply to the Minister and Commissioner in developing legislative instruments,
the Bill provides for the Commissioner to consult and cooperate with persons,
organisations and governments on matters relating to his or her functions including
in the course of making legislative instruments should the power to make rules be
delegated to the Commissioner. As such, the Commissioner will consult and
cooperate with relevant persons, organisations and governments on the
development of rules that make provision for or in relation to a Code of Conduct."
New section 73ZN - Banning orders
On page 44, after paragraph 262 insert:
"In the case of a registered provider, prior to the application of a ban order, even in
cases where there is immediate danger to the health, safety or wellbeing of a person
with disability, new paragraph 73ZN(1)(a) requires that the provider's registration
must have first been revoked under new section 73P. New section 73P includes the
right of a person to make submissions before registration is revoked (paragraph
73P(4)). In practice, if a registered NDIS provider poses an immediate danger to a
person with disability, the Commissioner may suspend the registration of the
provider pending consideration of whether the provider's registration should be
revoked. While the Commissioner is considering whether a provider's registration
should be revoked, the Commissioner may also issue a compliance notice
preventing the provider from providing any NDIS supports or services.
In the case of an unregistered provider, there is a series of compliance and
enforcement actions available to the Commissioner prior to issuing a ban order,
ranging from compliance notices through to requiring a provider to undergo quality
assurance checks. If, in the most serious of cases, the Commissioner has grounds
to believe that there is an immediate danger to the health, safety or wellbeing of a
person with disability, he or she may issue a ban order under proposed subsection
73ZN(7) for a specified period to allow for submissions to be made by the provider
about the ongoing nature of the ban order. A ban order is also a reviewable decision
and a person may apply under proposed subsection 73ZO(2) for the revocation or
variation of a ban order.
The discretion for the Commissioner to apply a banning order for a limited period
(paragraph 73ZN(3)(b)), is intended to enable the Commissioner to act quickly if the
circumstances indicate that it is appropriate to do so pending any further
consideration of the matter. On the basis that a ban order can be applied for a
limited period and that a person may apply for revocation or review, the approach
taken is considered to be the most appropriate to protect people with disability from
unsafe NDIS providers or workers."
Item 50 - Section 99
On page 49, after paragraph 290 insert:
3
"Proposed new section 99 of the Act includes all of the decisions which might have
an adverse impact on an individual and which are reviewable internally and
externally by the Administrative Appeals Tribunal. The following table lists decisions
that are not reviewable because they are subject to separate review processes
and/or guidelines not administered by the Commissioner.
Decision Proposed section Subject to
A decision to approve (or 73U Based on accreditation
not approve) a quality through a third party
auditor accreditation body
Monitoring and Appeal to relevant court
investigations warrants,
civil penalties and
injunctions - must be
issued by a court under
the Regulatory Powers Act
A decision to issue an 73ZL Appeal to relevant court
infringement notice
(Regulatory Powers Act)
Item 71 - After section 202
On page 64, after paragraph 376 insert:
"A broad delegation of the Commissioner's powers is necessary to enable the
Commission to regulate the national NDIS market in an efficient manner which is
responsive to the rapidly emerging and changing NDIS market. Consistent with the
NDIS Quality and Safeguarding Framework released by the Disability Reform
Council, the core functions of the Commission outlined in proposed section 181E will
be undertaken by the Commissioner of the NDIS Quality and Safeguards
Commission to be appointed under proposed section 181L.
As noted in relation to new Part 2 of Chapter 6A of the Act, the Commissioner's
registration and reportable incidents functions will be undertaken by a Registrar; the
Commissioner's complaints functions will be undertaken by a Complaints
Commissioner; and the Commissioner's behaviour support function will be
undertaken by a Senior Practitioner.
Item 77 - After subsection 209(1)
On page 65, after paragraph 385 insert:
"The Bill sets out the core functions and framework for the Commission, and the
NDIS rules provide the detail necessary for supporting the Commission's regulatory
activities. The Commission will be established in jurisdictions over time and some
flexibility will be needed to allow adjustments from the lessons learnt from the
Commission's operations in participating jurisdictions.
4
Separating the Rules from the Bill provides appropriate flexibility and enables the
Commission to be responsive in circumstances where the NDIS market environment
is uncertain and rapidly changing. The NDIS is still in transition and it is growing and
evolving rapidly. As at 30 June 2017, the NDIS involves almost 8,698 registered
providers, an estimated 73,000 workers, supporting 90,638 participants with
approved plans. In full scheme the number of providers is expected to more than
double with an estimated 160,000 workers, supporting 460,000 participants. These
providers and workers will include current disability service providers and new
entrants, including a number of emerging new on-line "digital disrupter" models. The
rapid change in scale and complexity of the NDIS market means that unpredictable
risks may emerge in the medium term. The Commission will need to deal promptly
with new and emerging risk in the effective regulation of NDIS providers, both now
and into the future. It is therefore appropriate that these aspects of the scheme be
covered by Rules that can be adapted and modified in a timely manner."
5
Index]
[Search]
[Download]
[Bill]
[Help]