2.1
Evidence provided to the inquiry was broadly supportive of the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021 (the bill). Specifically, submitters indicated support for the bill’s aim of improving protections for participants of the National Disability Insurance Scheme (NDIS) and strengthening the compliance and enforcement powers of the NDIS Quality and Safety Commissioner (the Commissioner).
2.2
Submitters did, however, raise some issues of concern during the inquiry. These included:
the information sharing provisions and their impact on privacy;
the practical application of the banning provisions and compliance orders;
the need for greater oversight of unregistered providers;
the lack of consultation prior to the introduction of the bill; and
other areas to further strengthen the protections for at risk NDIS participants.
Information sharing provisions
2.3
As noted in Chapter 1, the bill proposes amendments that would broaden the circumstances in which information can be recorded, used and shared.
2.4
A number of submitters raised concerns that the information sharing provisions may infringe on the privacy of individuals involved in the NDIS. For example, People with Disability Australia (PWDA), an advocacy organisation, agreed that the threshold to provide for the disclosure of information had been lowered, and that the information could be disclosed without the consent of the NDIS participant.
2.5
At the hearing, Ms Samantha Connor, President of PWDA, explained how the proposed amendments could also negatively impact on an NDIS provider:
As for … authorising the disclosure of protected information for the purposes of worker screening but also about providing previous history, it might include the history of our psychiatric condition or psychosocial disability. It might be used to limit or restrict our supports or the way that we manage our money in a way that we won't ever know about. We will just know what we're given or what we're not able to access, and so these are really big considerations that need to be discussed in detail with the sector before anything is put in place.
2.6
The Australian Federation of Disability Organisations (AFDO) also noted with concern that information could be disclosed without the consent of the NDIS participant:
There needs to be a further articulation of why participants' right to privacy should be overridden by the need to protect [from harm], and how a person's privacy will be protected in the context of a quality and safeguards investigation regarding any issues of abuse. There needs to be a clearer articulation as to who the information is going to be shared with, and the participant needs to be notified that their privacy rights have been overridden by the need to protect [from harm].
2.7
AFDO suggested that the NDIS participant be notified when their information is being disclosed, as well as informed of whom their information is being shared with, the reason for the disclosure (including that the threat of harm is current), and how their privacy will be protected. AFDO recommended that each decision should be independently assessed, and the details of each disclosure should be reported annually to the Office of the Australian Information Commission.
2.8
The Department of Social Services (the department), acknowledged that the bill would broaden the circumstances in which information about an NDIS participant could be shared. However, the department also noted that the disclosure of information is restricted to circumstances where the life, health or safety of an NDIS participant is at risk.
2.9
At the hearing, the Acting NDIS Quality and Safeguards Commissioner, Ms Samantha Taylor PSM, clarified that whenever possible they would seek the NDIS participant’s consent before sharing their information:
I think our first port would be, as is already provided for under provisions in the act for disclosure of information, to seek the person's consent. Indeed, the powers available to us for disclosing protected commission information enable us to disclose where we have that consent, and that would be our preference.
2.10
In relation to the disclosure of information for the purposes of a worker screening, the Commission advised that applicants for a screening are informed that enquiries about their eligibility may be made to the Commission, including about any misconduct or disciplinary action. If the applicant is not granted the clearance, they must be given the reasons for the decision and the opportunity to respond.
Practical operation
2.11
A number of submitters raised concerns about the how certain provisions of the bill, in particular the provisions relating to banning orders and compliance notices, would operate in practice.
2.12
National Disability Services (NDS) expressed its support for the amendments that would improve access to information about a provider’s past behaviour. However, more guidance was requested about the records that would need to be kept about employees and key personnel. At the hearing Ms Laurie Leigh, Interim Chief Executive Officer of NDS, elaborated:
There will be circumstances in which an individual may have worked for an organisation in the past, they've then left that organisation and, subsequently, been banned or had some issues. We're seeking to ensure that the impact of that on the organisation which was previously associated with that individual but which had no problems with them, because the banning came afterwards, shouldn't be a negative impact on that organisation.
2.13
AnglicareSA requested further information about the conditions banning orders may be subject to, the timeframes for investigating and resolving banning orders, and how past conduct and events would be assessed.
2.14
As noted in Chapter 1, a banning order is one of the most serious compliance tools the Commissioner can use and would only be contemplated after other compliance responses were found to be inappropriate.
2.15
At the hearing, the Acting Commissioner provided further information about the circumstances in which a banning order might be used:
All I can do, I think, is go back to the examples I gave earlier about the circumstances in which we might use these provisions. As I said before, they are not obligatory powers. I'll just take a step back. At present, if we were seeking to ban a person from operating in the NDIS because we'd substantiated a contravention—we'd identified they'd caused serious harm to someone—maybe we would be required under the act to advise them of an intent to ban, for example, and then to go about a banning process. If, in that period, we were aware that there were other people who might be exposed to that person, we couldn't tell anybody because of the way in which the act operates currently. It's protected information as we go through the process of banning. We're not able to lawfully reveal the fact that we are actually concerned. These provisions allowing us to advise the agency that there might be other participants who might be affected are highly unlikely to result in a person saying, 'You shouldn't have told the agency.' These are areas where we are, with reasonable belief, deeply concerned about the safety of a participant. Having disclosed information that a person might be at risk where they may not have been aware they might be at risk, if a person wants to complain that we gave information that wasn't appropriate we would deal with that in the usual way as a complaint and seek to remedy that complaint with that person.
2.16
In relation to the past conduct of an individual, the department explained that information about past conduct was required to address recommendation 9 in the Robertson Review. The department noted that this would enable the Commissioner to disclose relevant information about the prior conduct of an NDIS provider when there is a threat to an NDIS participant’s life, health or safety.
Unregistered providers
2.17
Several submissions, including a submission from the Victorian Government, recommended that the bill include changes to provide for greater oversight of unregistered providers, as the current situation can leave participants exposed to a greater risk of abuse, neglect or exploitation. The Chief Executive Officer of Queensland Advocacy Incorporated, Ms Matilda Alexander, expressed a similar view, stating:
In Queensland, NDIS registered providers are covered by our Human Rights Act but non-registered providers are not. Unless this gap is addressed at the federal level, accountability for harmful actions is limited and pathways for complaints are confusing.
2.18
Both the Allied Health Professions Australia (AHPA) and the Victorian Government noted that concerns about unregistered providers have been raised during other inquiries, including the committee's inquiry into the NDIS Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, and the concurrent Joint Standing Committee on the National Disability Insurance Scheme inquiry into the NDIS Quality and Safeguards Commission.
Consultation
2.19
A number of inquiry participants raised concerns about the lack of consultation on the bill. For example, the Victorian Government noted that there was no consultation with state and territory governments. Similarly, Ms Connor argued that information should be available prior to changes being made to the NDIS, noting that, '[t]his is our scheme, and we are directly affected by what happens within it'.
2.20
In response, the department explained that there was no consultation on the bill because of the significant consultation that had been undertaken for the Robertson Review. Moreover, that there will be consultation before the NDIS rules are changed:
The [Robertson] review involved consultation and hearings with stakeholders, which the commission could talk to. My understanding is that the review recommendations from the Robertson review were warmly welcomed as important issues to be addressed. This bill provides the overall framework within which actions occur, but it's within the rules and protocols within the commission and the NDIA that more detail is specified. Should this bill be passed, I'm aware that the commission, consistent with its ordinary practice, intends to consult stakeholders on the detail of the rules before they're made, and I note that they'll also be subject to consultation with the states and territories.
2.21
The department also noted that the review of the NDIS Quality and Safeguarding Framework, scheduled to commence later in 2021, will include 'detailed consultation and engagement with the disability sector'.
Further amendments to achieve the bill's purpose
2.22
A number of submitters noted that they would have liked for the bill go further to ensure the protection of vulnerable NDIS participants and to more fully implement the Robertson Review's recommendations.
2.23
The Office of the Public Guardian Northern Territory recommended that the bill should provide that each vulnerable NDIS participant with a specific person with overall responsibility for that participant's safety and wellbeing. Further, that this role should be funded by the NDIS.
2.24
Queensland Advocacy Incorporated expressed the view that the bill does not give effect to a number of recommendations made in the Robertson Review, including:
that no NDIS participant who has been identified as being vulnerable to abuse and neglect should have a sole carer providing supports in their home;
that the Commission establish an equivalent state and territory community visitor scheme; and
implementing improvements to the Commission's complaints handling processes.
2.25
The department explained that the bill does not intend to address all of the recommendations of the Robertson Review:
… the bill is not intended to be a broad based response to all quality and safeguarding issues in relation to the NDIS or, indeed, as you indicated, every person with disability in Australia. The bill is intended to be narrower and was brought forward to try and respond to those recommendations [of the Robertson Review] at the earliest opportunity.
2.26
The department noted that changes had been implemented to address aspects of other recommendations, including the Commission imposing a new registration condition on NDIS providers of personal supports, developing a site visit policy and through planned amendments to the NDIS rules.
2.27
The department reiterated that the NDIS was under constant review and that the question of how to proactively identify people at risk of harm was on the national agenda:
We are doing some work between the commission, the NDIA and the department around seeking to better define the kinds of trigger events or other factors that might point to an increased risk of harm. We're also seeking to work with the states and territories around that, because, of course, there could be factors completely unrelated to the NDIS that go to a person's risk of harm, such as child protection or other matters that fall within state systems. So there's an ongoing, multiyear project around trying to work through those issues and come up with better ways of dynamically identifying people over time whose circumstances or change in circumstances may present a risk of harm.
Committee view
2.28
The committee acknowledges the concerns raised by inquiry participants about the bill's information sharing provisions, the need for greater clarity on the practical application of several provisions, the lack of consultation prior to the introduction of the bill and the need for more oversight of unregistered providers.
2.29
The bill's primary focus is to introduce measures that will provide greater protection for vulnerable NDIS participants. To this end, the bill enables the sharing of information only in limited circumstances—when there is a threat to an NDIS participant's life, health or safety.
2.30
Similarly, serious compliance action, such as banning orders, would only be contemplated where other compliance actions have been considered but deemed inappropriate.
2.31
The committee also notes that consultation was undertaken as part of the Robertson Review as well for as the proposed amendments to the NDIS (Provider Registration and Practice Standards) Rules 2018. Furthermore, there will be detailed consultation and engagement with the disability sector in relation to the NDIS Quality and Safeguarding Framework review, due to commence in late 2021.
2.32
The committee considers that the bill introduces measures that will afford greater protection for vulnerable NDIS participants and provide the Commission with the appropriate tools to strengthen compliance.
2.33
The committee recommends that the bill be passed.
Senator Wendy Askew
Chair