Thursday, 3 June 2021
National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021; Second Reading
That this bill be now read a second time.
The National Disability Insurance Scheme Act 2013, known as the NDIS Act, provides a foundation for measures to support and protect NDIS participants. This bill makes essential amendments to the NDIS Act to improve the support and protections provided to NDIS participants who may be at risk of harm.
The bill also includes a number of minor amendments to strengthen existing measures and ensure the NDIS Quality and Safeguards Commission (the NDIS commission) has clear legal authority to pursue providers or workers who infringe or fail to uphold the rights of people with disability.
Following recent cases of abuse, neglect and exploitation of NDIS participants, the government has considered a number of inquiries into the effectiveness of NDIS safeguards in these cases, in addition to the Hon. Alan Robertson SC Independent review of the adequacy of the regulation of the supports and services provided to Ms Ann-Marie Smith, an NDIS participant, who died on 6 April 2020, known as the Robertson review, commissioned by the NDIS commissioner. These cases are a source of deep distress and concern to people with disability and to all Australians. Like many Australians, I continue to be deeply shocked and saddened by the death of Ms Smith. This bill introduced today recognises the tragic circumstances of Ms Smith's death and provides comfort and assurance to participants, their family and friends, that this government is taking action to better protect them and to reduce the risk that such distressing events occur again.
The Robertson review made 10 recommendations to the commissioner, some of which required legislative amendments to support implementation. The changes in this bill build on the operational changes already made by the NDIS commission and the National Disability Insurance Agency to better support at-risk people with disability including better outreach and working with providers to ensure a participant is not cared for unsupervised by a single worker.
The NDIS Quality and Safeguarding Framework, known as the framework, was released in February 2017, with the NDIS commission beginning to operate in July 2018 in New South Wales and South Australia and gradually expanded to cover the other states and territories. From 1 December 2020, the NDIS commission assumed responsibility for the national oversight of the NDIS quality and safeguards arrangements for the first time.
As a responsive regulator, the NDIS commission continues to review and refine its approach based on experience and provider engagement. It is important we learn from implementation and, where necessary, amend legislation to strengthen the protection of NDIS participants. This bill makes such amendments and is a part of the government's commitment to continuously improve the quality and safeguards in place to protect participants under the framework.
Importantly, the Robertson review did not identify significant failings in the way that the NDIS commission performed its functions. It recognised the harm that has occurred and the importance of taking action not just against those responsible, but to ensure that it cannot happen again. This government cannot state more wholeheartedly the commitment to taking the required action to implement change to better protect participants, especially those at most risk of harm.
The NDIS commission and the NDIA have already taken available action to improve information sharing, including agreeing to a memorandum of understanding and a set of operational protocols to govern information exchange.
This bill supports improved information sharing arrangements between these two agencies. It amends the information sharing powers in the NDIS Act to ensure the NDIS commission and the NDIA have clear legal authority to release protected information to one another, for the purposes of carrying out the core legislated functions of both agencies under the NDIS Act and ensure the protection of NDIS participants.
Present clauses in the NDIS Act establish a high threshold for sharing information. They establish the disclosure can only be made if it is 'necessary to prevent or lessen a serious threat to an individual's life, health or safety'. The Robertson review recommends, and this bill enacts, a broadening of the conditions on which information can be shared.
It removes qualifiers like 'serious' and 'necessary' to ensure any threat to life, health or safety is sufficient grounds for the recording, use or disclosure of protected information between the NDIS commission and the NDIA. This will better protect NDIS participants.
The bill also amends provisions for disclosing information more broadly, including to ensure the NDIS commission is able to disclose information to worker screening units and other agencies for quality and safeguards purposes and can also publish and maintain information about historical compliance and enforcement action on its provider register.
Importantly, these changes to information sharing do not undermine or reduce the significant protections for personal information under the NDIS Act. Personal information held by the NDIA or the NDIS commission will continue to be considered protected information.
Personal information will still be handled in accordance with the limitations on use and disclosure established by the NDIS Act, the Privacy Act 1988, and any other applicable Commonwealth, state or territory legislation.
Information will only be shared where reasonably necessary for the fulfilment of the commissioner's lawful and legitimate functions and the protection of people with disability.
The bill also improves the reportable incidents function of the NDIS commission. Registered NDIS providers are required to notify the NDIS commission of serious incidents such as death and serious injury (including alleged incidents) that occur in connection with the services and supports they provide.
The Robertson review recommended reportable incidents be broadened and the NDIS commission support the need to clarify incidents that may not have a direct causal link to the provision of services may also be reportable incidents. The bill provides the NDIS commission the scope to further define the circumstances surrounding reportable incidents and clarify reporting requirements, in the NDIS commission's reportable incidents rules. By enabling definition via the rules, the commission will have the flexibility to respond quickly to arising circumstances and continue to protect participants. An exposure draft of these rules has been tabled alongside the bill to assist in its consideration.
Another core function of the NDIS commission is the registration of NDIS providers. Quality assurance of registered NDIS providers is undertaken by approved quality auditors who are engaged by providers directly.
The market for quality auditors includes a wide range of experience levels and knowledge of the sector. The bill will allow the commissioner to place conditions on the approval of quality auditors and makes explicit the commissioner's power to vary or revoke their approval. In line with best administrative practice, these decisions will be reviewable decisions.
This will ensure the efficient operation of the auditor market and that approved quality auditors are suitable to assess the NDIS providers that engage them.
Finally, the bill makes a range of technical changes to support the effective operation of the NDIS commission in relation to its powers. These include:
In summary, the bill will strengthen the protections for NDIS participants, including those who are at greater risk of harm, and will strengthen the operational effectiveness of the NDIS commission.
The government will continue to remember the tragic circumstance of each NDIS participant who has suffered abuse, neglect and exploitation and take action to ensure the safety of participants at risk of harm. The government is committed to ensuring the NDIS quality and safeguards arrangements are efficient and effective and the NDIS commission has the legislative powers it needs to operate as a responsive regulator. The measures in this bill are an essential part of this commitment and will better protect NDIS participants from harm, as well as support them in accessing quality and safe services under the NDIS.
I commend this bill to the House.