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




    SUPPLEMENTARY EXPLANATORY MEMORANDUM




  Amendments to be moved on behalf of the Government




              (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


OUTLINE

These amendments ensure that the original policy intent of the Bill is
achieved, providing for banning of former providers by the NDIS
Commissioner in all circumstances. The amendments also require the
inclusion in the NDIS Provider Register banning orders that are in force, in
order to best protect the interests of persons with disability.


Financial impact statement

There are no financial impacts of these amendments.




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

Government amendments


Since the Bill was introduced, it has become apparent that 'former' providers
may not be covered by the amendments such that they may be subject to a
banning order. These amendments correct this.

There is also currently discretion in the Act in respect of all but current
registered NDIS providers as to whether the fact a banning order is in force
must be included in the NDIS Provider Register. Stakeholder feedback has
indicated that this discretion, where a banning order is in force, insufficiently
protects the welfare of persons with disability. This is addressed by requiring
that information about banning orders that are in force must be included on
the NDIS Provider Register. A discretion for the Commissioner to include
information about banning orders that are no longer in force remains, where
the Commissioner thinks this is appropriate to protect persons with disability,
and would not unfairly impact on workers or providers.

The amendments ensure that the Commissioner may be delegated powers to
make the relevant NDIS rules for the purposes of the new NDIS Provider
Register provisions, to set out additional information to be included about
banning orders.

NOTES ON AMENDMENTS

Amendment 1 inserts new item 1A and 1B.

Item 1A generalises the power in subsection 73ZN(1) in order to enable a
banning order to be made against a person who was an NDIS provider, in
addition to making such an order against a person who is a current NDIS
provider.

The remainder of subsection 73ZN(1) is unchanged, except for
subparagraph 73ZN(1)(b)(iv), which provides for the making of a banning
order where there is an immediate danger to the health, safety or wellbeing of
a person with disability if the person continues to be an NDIS provider. This
subparagraph is amended by item 1B consequential to the amendment at
item 1A to confine it to current NDIS providers only.

Amendment 2 inserts new items 4A and 4B.

Subsection 73ZS(3) already provides that the NDIS Provider Register must
include information about a banning order to which a registered NDIS provider
is subject, amongst other information. These amendments create stand alone
subsections which make this a mandatory obligation in respect of banning
orders which are in force in all circumstances. New item 4A inserts new
subsection 73ZS(2A) after subsection 73ZS(2). New subsection 73ZS(2A)


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creates an obligation for the NDIS Provider Register to include various pieces
of information in relation to anyone against whom a banning order is in force.
The information must include the name of the person, the person's ABN (if
any), information about the banning order, and any other matter prescribed by
the NDIS rules for the purposes of the paragraph.

New subsection 73ZS(2B) provides a discretion for the Commissioner to
include information in relation to a banning order which was in force. The
information which may be included is the same as that to be included for
banning orders that are in force, and additional information may be prescribed
by the NDIS rules for this purpose.

New item 4B repeals paragraphs 73ZS(3)(i), (4)(e) and (5)(d) which relate to
including information relating to banning orders in the NDIS Provider Register,
which become redundant as the result of new subsections 73ZS(2A) and
(2B).

Amendment 3 omits current item 5, which has also become redundant as the
result of new subsections 73ZS(2A) and (2B), and inserts new item 5 which
amends paragraph 201A(1)(p), relating to the Minister's capacity to delegate
to the Commissioner power to make NDIS rules governing the content of the
NDIS Provider Register. The amendments include reference to new
paragraphs 73ZS(2A)(d) and (2B)(d). These rules may prescribe additional
matters which may be included in the NDIS Provider Register.

Amendment 4 substitutes item 6 of the Bill relating to section 209 which sets
out the power to make NDIS rules and the category of such rules. This
amendment includes rules made for the purposes of paragraphs 73ZS(2A)(d)
and (2B)(d) as category D rules.

Amendment 5 inserts an application provision into item 8 in relation to the
amendment at new item 1A to provide that the amendment relating to a
banning order in respect of a person who was an NDIS provider applies in
relation to a person who ceased to be an NDIS provider before, on or after the
commencement of this item, whether conduct to which paragraph 73ZN(1)(a),
(b), (c) or (d) of the Act relates occurred before, on or after that
commencement.

Amendment 6 amends subitem 8(1) to clarify that the amendment of
subsection 73ZN(2) applies in relation to a person who ceased to be
employed or engaged by an NDIS provider before, on or after the
commencement of this item whether conduct to which paragraph 73ZN(2)(a),
(b) or (c) of that Act relates occurred before, on or after that commencement.

Amendment 7 omits subitem 8(3) and substitutes new subitems 8(3), (4) and
(5). New subitem 8(3) provides that new subsection 73ZS(2A) applies in
relation to:-
(a)    a banning order made on or after the commencement of the item;
(b)    a banning order made before that commencement and that was in
force immediately before that commencement.


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New subitem 8(4) provides that new subsection 73ZS(2B) of the Act applies
in relation to a banning order that was in force before, on or after the
commencement of this item.

New subitem 8(5) provides that the amendments made by this Schedule do
not affect the validity of an entry in the NDIS Provider Register made before
the commencement of this item.




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