Commonwealth of Australia Explanatory Memoranda

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NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (STRENGTHENING BANNING ORDERS) BILL 2020

                        2019-2020




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




             HOUSE OF REPRESENTATIVES




NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
    (STRENGTHENING BANNING ORDERS) BILL 2020




   ADDENDUM TO THE EXPLANATORY MEMORANDUM




              (Circulated by the authority of the
   Minister for the National Disability Insurance Scheme,
                  the Hon Stuart Robert MP )
       NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
           (STRENGTHENING BANNING ORDERS) BILL 2020

This addendum responds to concerns raised by the Senate Standing
Committee for the Scrutiny of Bills in Scrutiny Digest 8 of 2020.

After the paragraph commencing 'item 3', insert:-

The additional powers to make banning orders provided to the Commissioner
by these amendments are broad, and the Commissioner's exercise of the
power is not otherwise guided by the wording of the section. Providing such
additional guidance risks unintentionally narrowing the circumstances in which
the Commissioner may make a banning order. This could lead to further
unintended gaps in the application of banning orders and risks challenge to
the Commissioner's decisions.

In addition, there is already significant guidance in the Act around the exercise
of such an enforcement power. The Act obliges the Commissioner to conduct
compliance and enforcement activities in a risk responsive and proportionate
manner (paragraph 181D(4)(b)). Therefore, before issuing a banning order,
the Commissioner would be expected to consider whether the action would be
reasonable, timely and proportionate in relation to the issue in question, what
action has been taken previously, and whether there are more appropriate
avenues to deal with the issue. In deciding whether to issue a banning order
against a person on the ground that the person is unsuitable, the
Commissioner may also be guided by criteria for assessing the suitability of a
person to provide, or be involved in the provision of, services to people with
disability, such as that set out in the National Disability Insurance Scheme
(Provider Registration and Practice Standards) Rules 2018 (sections 9 and
10).




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