Karen Grogan (SA, Australian Labor Party) | Link to this | Hansard source

Pursuant to the order agreed to this morning, the time allocated for the remaining stages of this bill has expired. I'll first deal with the amendments moved by Senator Steele-John on sheet 3832. The question is that part 4 and item 68 of schedule 1, on sheet 3832, stand as printed.

Karen Grogan (SA, Australian Labor Party) | Link to this | Hansard source

The question is that the remaining amendments on sheet 3832 be agreed to.

Karen Grogan (SA, Australian Labor Party) | Link to this | Hansard source

I will now deal with amendments circulated by the government. I understand that the minister has documents to table.

Jenny McAllister (NSW, Australian Labor Party, Minister for the National Disability Insurance Scheme) | Link to this | Hansard source

I table a further addendum to the explanatory memorandum and supplementary explanatory memoranda relating to the government amendments to be moved to this bill. The addendum responds to matters raised by certain committees.

Karen Grogan (SA, Australian Labor Party) | Link to this | Hansard source

The question is that items 23 to 26 of schedule 1 stand as printed.

Government's circulated amendment

(7) Schedule 1, items 23 to 26, page 10 (lines 13 to 20), to be opposed.

Question negatived.

The TEMPORARY CHAIR: We'll now deal with the amendment circulated by Senator Roberts. Senator Roberts, this gives effect to your amendment as looked at by the clerks. The question is that part 7 in amendment (7) on sheet IC116 revised be agreed to.

One Nation's circulated amendment

AMENDMENT TO GOVERNMENT AMENDMENTS [REVISED SHEET IC116]

(1) Amendment (7), Part 7, to be opposed.

Karen Grogan (SA, Australian Labor Party) | Link to this | Hansard source

The question now is that amendments (1) to (6) and (8) to (23) on sheet ST128 and amendments (1) to (6) and (8) to (10) on sheet IC116 revised be agreed to.

Government's circulated amendments—

SHEET ST128

(1) Clause 2, page 2 (table item 10), omit the table item, substitute:

(2) Schedule 1, item 4, page 4 (lines 20 and 21), omit paragraph 9B(1)(a), substitute:

(a) either without assistance from other people, assistive technology or modifications, or only with:

(i) assistance from assistive technology or modifications that are commonly used and that the person would ordinarily use to undertake the activity; and

(ii) if the person is a child—assistance from other people that is appropriate to the person's age; and

(3) Schedule 1, item 4, page 5 (line 12), at the end of subsection 9B(3), add:

; or (d) assistive technology or modifications that are, or are not, taken to be commonly used for the purposes of subparagraph (1)(a)(i).

Note: If a particular assistive technology or modification is not prescribed by the National Disability Insurance Scheme rules under paragraph (d), the expression "commonly used" has its ordinary meaning in relation to that assistive technology or modification. Glasses and walking sticks are examples of assistive technology or modifications that are commonly used within the ordinary meaning of that expression.

(4) Schedule 1, item 13, page 7 (line 14), omit "48(4)", substitute "48(4A)".

(5) Schedule 1, item 20, page 8 (lines 26 to 32), omit subsection 48(4), substitute:

(4) If the CEO does not make a decision under paragraph (3)(a), (b) or (c) before the end of the period of 90 days, the CEO is taken to have decided not to conduct a reassessment of the plan.

(4A) Subsection (3) does not apply if, before the end of the period of 90 days, the CEO gives the participant written notice under subsection 32B(2A) that the participant is to have new framework plans.

Note: In this case, subsections 32(3) and (4) apply instead to require the CEO to facilitate the preparation of a new framework plan for the participant.

(6) Schedule 1, item 21, page 10 (lines 4 and 5), omit "an unanticipated, significant", substitute "a significant".

(8) Schedule 1, item 34, page 12 (after line 31), after subclause 34A(1C), insert:

(1CA) If the determination specifies an excluded subgroup, the determination may specify, in relation to the class of participants' plans to which the percentage applies, a subclass of plans for the purposes of subsection (2A). The subclass may be specified by reference to matters relating to the plans, or the participants, or both, including matters identified by reference to information in records held by the Agency.

(9) Schedule 1, item 34, page 14 (lines 4 to 8), omit paragraph (b) of the definition of Net FCAin subclause 34A(2A), substitute:

(b) if:

(i) the determination specifies an excluded subgroup within the specified group; and

(ii) for a determination that specifies a subclass of plans as mentioned in subsection (1CA)—the plan is in the specified subclass;

the funding component amount stated in the plan for the group of supports minus so much of the funding component amount as is attributable to the supports in the excluded subgroup.

(10) Schedule 1, Part 4, page 14 (after line 24), at the end of the Part, add:

34A After section 47A

Insert:

47B Variation of participant's plan when determination under section 34A takes effect

Request for variation

(1) If:

(a) a determination under section 34A reducing funding for groups of supports (the section 34A determination) starts to apply in relation to a participant's plan; and

(b) the section 34A determination has the effect that the total funding amount stated in the plan is taken instead to be the amount as reduced under paragraph 34A(2)(c); and

(c) the participant is a high support needs participant;

the participant may, in the approved form (if any), request the CEO to vary the plan under subsection (8).

(2) For the purposes of this section, a high support needs participant is a participant who is a member of the class of participants specified in a determination made under paragraph (12)(a).

(3) The participant's request must be made:

(a) unless paragraph (b) applies—before the end of the period of 90 days beginning on the day the section 34A determination started to apply in relation to the plan; or

(b) if, because of exceptional circumstances, the CEO, by notice in writing given to the participant, extends that period—by the end of the period as extended.

Decisions on request

(4) The CEO must, before the end of the period of 21 days beginning on the day the request is made:

(a) decide whether the participant is a high support needs participant; or

(b) inform the participant that the CEO requires further time to decide whether or not the participant is a high support needs participant.

(5) If the CEO decides that the participant is a high support needs participant, the CEO must, before the end of the period of 21 days beginning on the day that decision is made:

(a) having regard to a determination (if any) made under paragraph (12)(b), either:

(i) vary the plan under subsection (8); or

(ii) decide not to vary the plan; or

(b) inform the participant that the CEO requires further time to decide whether or not to vary the plan under subsection (8).

(6) The CEO is taken to have decided not to vary the plan if the CEO does not do a thing referred to in subsection (4) or (5) within the period applicable.

Note: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).

(7) If, under paragraph (4)(b) or (5)(b), the CEO informs the participant that the CEO requires further time to make the decision mentioned in the paragraph, the CEO must then make the decision as soon as reasonably practicable.

Variation

(8) The CEO may vary the plan to increase the funding component amount stated in the plan for one or more groups of supports covered by subsection (9). However, the CEO must not do so in a way that would result in funding component amounts stated in the plan for groups of supports being increased by an amount that, in total, would exceed the difference between the 2 amounts mentioned in paragraph (1)(b).

(9) For the purposes of subsection (8):

(a) the following groups of supports are covered by this subsection:

(i) assistance with daily living;

(ii) home and living;

(iii) any group of supports specified under paragraph (12)(c); and

(b) the following groups of supports are not covered by this subsection:

(i) assistance with social, economic and community participation;

(ii) improved daily living skills.

(10) A variation may be different from the variation requested.

Copy of varied plan to be provided

(11) If the plan is varied, the Agency must provide a copy of the varied plan to the participant within 7 days of the variation taking effect.

Determinations

(12) The Minister may, by legislative instrument, make a determination specifying any of the following:

(a) a class of participants for the purposes of subsection (2);

(b) for the purposes of paragraph (5)(a)—any of the following in relation to the decision whether to vary a plan under subsection (8) or not to vary a plan:

(i) methods or criteria to be applied;

(ii) matters that may, must or must not be taken into account;

(iii) circumstances in which a matter is or is not taken to exist in relation to a person;

(c) a group of supports for the purposes of subparagraph (9)(a)(iii).

(13) A class of participants may be specified as mentioned in paragraph (12)(a) by reference to matters relating to participants' plans, or participants, or both, including matters identified by reference to information in records held by the Agency.

Note: Broadly, high support needs participants are those who require continuous 24-hour care to meet disability-related care needs arising directly from impairments in relation to which the participant meets the disability requirements (see section 24) or meets the early intervention requirements (see section 25).

34B Subsection 99(1) (after table item 6B)

Insert:

34C Subparagraph 100(1 A)( a)(ii)

After "47A(5)", insert ", 47B(6)".

34D Paragraph 100(5)(b)

After "47A(5)", insert ", 47B(6)".

34E Subparagraph 100(6 A)( b)(ii)

After "47A(5)", insert ", 47B(6)".

34F Subparagraphs 101(2)(a)(ii) and (b)( i )

After "47A(1)", insert "or 47B(8)".

34G Subparagraph 103(2)(c)( i )

After "47A(1)", insert "or 47B(8)".

(11) Schedule 1, item 73, page 29 (lines 6 to 12), omit subsection 34(1H), substitute:

(1H) For the purposes of subsection (1G), substantial care and support:

(a) includes supervision, personal care, transport, emotional support and behavioural support; and

(b) does not include additional care and support required for the child, because the child's care and support needs are substantially greater than those of other children of a similar age because of the child's disability.

Note: A child is a person who is under 18 years of age, see section 9.

(12) Schedule 1, item 73, page 29 (line 24) to page 30 (line 5), omit subsection 34(1K), substitute:

(1K) For the purposes of paragraph (1)(e), the CEO must consider:

(a) whether relying on family, carers, informal networks or the community to provide support would expose a participant or another person to a risk of harm, abuse or neglect that cannot be reasonably mitigated; and

(b) the desirability of supporting, maintaining and strengthening informal supports and community networks in preference to replacing those supports and networks with funded supports; and

(c) the capacity of the participant's family or carers to provide support, having regard to:

(i) the age of the participant's family and carers; and

(ii) the intensity and type of support required; and

(iii) whether it is age and gender appropriate for any particular family member or carer to provide that support.

(13) Schedule 1, item 97, page 40 (after line 25), after subsection 25B(3), insert:

When a law is taken to provide for compensation etc.

(3A) For the purposes of paragraphs (2)(b) and (3)(b):

(a) a law is taken, at a particular time, to provide for compensation or other benefits for or in respect of an impairment if circumstances prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph exist at that time; and

(b) a law is taken, at a particular time, not to provide for compensation or other benefits for or in respect of an impairment if circumstances prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph exist at that time.

(3B) Without limiting paragraphs (3A)(a) and (b), National Disability Insurance Scheme rules made for the purposes of those paragraphs may prescribe circumstances by reference to whether an application for the compensation or other benefits:

(a) could be made under the law; or

(b) has been made, granted or refused under the law (whether at all or within a particular timeframe).

(14) Schedule 1, item 97, page 40 (lines 27 to 30), omit subsection 25B(4) (not including the heading), substitute:

(4) An impairment is an excluded impairment at a particular time if:

(a) a support is declared by the National Disability Insurance Scheme rules to be an alternative support for the impairment for the purposes of this paragraph; and

(b) circumstances (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph exist at that time.

(15) Schedule 1, item 97, page 40 (line 31), omit "subsection (4)", substitute "paragraph (4)(a)".

(16) Schedule 1, item 99, page 41 (line 15), omit "and (1)(b) and subsection 25B(4)", substitute "and (b), (3A)(a) and (b) and (4)(a) and (b)".

(17) Schedule 1, item 101, page 41 (lines 20 to 23), omit the item, substitute:

101 Application — revocation of participant status

Paragraph 30(1)(c) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a person who becomes a participant on or after the commencement of this item.

(18) Schedule 2, item 86, page 81 (line 19), at the end of subsection 182(4), add:

; and (e) the person cannot otherwise demonstrate an entitlement to receive the NDIS amount.

(19) Schedule 3, page 87 (before line 3), before item 1, insert:

1A After section 32K

Insert:

32KA Increasing funding for stated supports under new framework plans to reflect changes in maximum amounts under section 45C

(1) If the Minister makes or varies a determination under section 45C, the Minister may also consider whether to make a determination under this section. The Minister must not make a determination under this section in any other circumstances.

(2) The Minister may, by legislative instrument, determine, in relation to new framework plans generally, or a class of new framework plans:

(a) an increase, or a method for working out an increase, in relation to a specified stated support or a specified class of stated supports; and

(b) a day, or a method for working out a day, (the indexation day) on which the increase takes effect; and

(c) a method for applying the increase on the indexation day.

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).

(3) The Minister must determine an increase or method for working out an increase by reference to whether the making or variation of the determination under section 45C has resulted in a higher maximum amount than was previously the case for the acquisition or provision of the specified support or the supports in the specified class.

(4) On the indexation day, the determination has the effect, in relation to each new framework plan to which it applies, that the total funding amount for the specified stated support or specified class is taken to be increased in accordance with the method determined for the purposes of paragraph (2)(c).

Note: This means that the total funding amount for the support or class of supports, as increased, is the total funding amount that has effect for the purposes of references in this Act to the total amount of funding provided under a plan for a stated support or class of stated supports (for example, in paragraphs 45(4)(b)).

(5) The determination does not have the effect of altering, or requiring alterations to, the text of the plans to which it applies.

32KB Increasing funding for flexibly funded supports under new framework plans to reflect changes in maximum amounts under section 45C

(1) If the Minister makes or varies a determination under section 45C, the Minister may also consider whether to make a determination under this section. The Minister must not make a determination under this section in any other circumstances.

(2) The Minister may, by legislative instrument, determine, in relation to new framework plans generally, or a class of new framework plans:

(a) an increase, or a method for working out an increase, in relation to a category of NDIS supports; and

(b) a day, or a method for working out a day, (the indexation day) on which the increase takes effect; and

(c) a method for applying the increase on the indexation day.

Note: Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 does not apply to the determination (see regulations made for the purposes of paragraph 54(2)(b) of that Act).

(3) The Minister must determine an increase or method for working out an increase by reference to whether the making or variation of the determination under section 45C has resulted in a higher maximum amount than was previously the case for the acquisition or provision of the category of supports to which the determination relates.

(4) On the indexation day, if the category of supports to which the determination relates is included in the needs assessment report for a new framework plan to which the determination applies, the determination has the following effect in relation to the plan:

(a) the portion of the flexible funding under the plan that is attributable to the category of supports is taken to be increased in accordance with the method determined for the purposes of paragraph (2)(c); and

(b) the total funding amount for flexible funding under the plan is taken to be correspondingly increased.

Note: This means that the total funding amount for the category of supports as increased, is the total funding amount that has effect for the purposes of references in this Act to the total amount of funding provided under a plan for a stated support or class of stated supports (for example, in paragraphs 45(4)(a)).

(5) The determination does not have the effect of altering, or requiring alterations to, the text of the plans to which it applies.

(20) Schedule 3, page 102 (after line 12), before Schedule 4, insert:

Part 5 — Debt recovery

National Disability Insurance Scheme Act 2013

18 After Division 1 of Part 1 of Chapter 7

Insert:

Division 1A — Notice of debts due to the Agency

182A Notice requirements

(1) This section applies if:

(a) a debt is due to the Agency by a person under section 182; and

(b) an arrangement for the payment of the debt has not been entered into under section 184; and

(c) the CEO does not intend to recover the debt from a financial institution under section 185.

Initial notice

(2) The CEO must give the person a written notice (the initial notice).

(3) The initial notice must specify the following:

(a) the date of the notice;

(b) the circumstances that gave rise to the debt;

(c) the value of the debt that the CEO intends to recover from the person;

(d) an invitation for the person to provide a response by written statement to the CEO in the approved form (if any);

(e) the period in which any response should be provided;

(f) the contact details for any questions concerning the debt;

(g) any other matter specified in the National Disability Insurance Scheme rules.

(4) The period specified under paragraph (3)(e) must be:

(a) for an NDIS provider—at least 14 days beginning on the date of the notice, unless circumstances specified in the National Disability Insurance Scheme rules for the purposes of this paragraph exist; or

(b) for any other person—at least 28 days beginning on the date of the notice, unless circumstances specified in the National Disability Insurance Scheme rules for the purposes of this paragraph exist.

Debt determination notice

(5) After the end of the period specified under paragraph (3)(e), the CEO must give the person a further written notice (the debt determination notice).

(6) The debt determination notice must specify:

(a) if the CEO does not intend to recover the debt from the person—whether this is because:

(i) the debt does not exist; or

(ii) the CEO intends to write off the debt or waive the Agency's right to recover the debt in accordance with Division 4; or

(b) if the CEO intends to recover the debt from the person—the following:

(i) the date of the notice;

(ii) that the CEO intends to take action for the recovery for the debt under Division 2;

(iii) the circumstances that gave rise to the debt;

(iv) the date on which the debt arose;

(v) the outstanding amount of the debt as at the date of the notice;

(vi) the date on which the outstanding amount is due and payable;

(vii) the options available for repaying the debt;

(viii) information about writing off or waiving the debt;

(ix) the contact details for any questions concerning the debt;

(x) if the person provided a written statement in response to the initial notice—how this response was considered in informing the decision to recover the debt;

(xi) any other matter specified in the National Disability Insurance Scheme rules.

19 Paragraph 193(a)

Omit "$200", substitute "$500".

20 Subsection 209(8) (table item 4, column headed "Description", after paragraph (w))

Insert:

(wa) section 182A;

21 Application provision

Section 182A of the National Disability Insurance Scheme Act 2013, as inserted by this Part, applies in relation to a debt that arises on or after commencement of this item.

(21) Schedule 4, page 103 (after line 17), after item 1, insert:

1A Paragraph 32D(2)(f)

Omit "Division 3);", substitute "Division 3), and the funding (if any) that will be provided under the plan to or in relation to the participant for that management;".

(22) Schedule 4, page 105 (after line 12), after item 4, insert:

4A After subsection 32 K( 4)

Insert:

(4A) National Disability Insurance Scheme rules made for the purposes of subsection (1) as mentioned in subsection (4) may make provision in relation to a matter mentioned in subsection (4) in a way that involves the exercise of a discretion by the CEO, in the circumstance that a participant receives:

(a) a compensation payment; or

(b) supports in respect of personal injury, if the supports are funded or provided under a scheme of insurance or under a Commonwealth, State or Territory law.

(23) Schedule 4, page 105 (after line 14), after item 5, insert:

5A After subsection 32 L( 1)

Insert:

(1A) For the purposes of subsection (1), a participant's disability support needs do not include managing the funding of supports under the participant's plan.

_____

SHEET IC116 REVISED

(1) Clause 2, page 2 (after table item 9), insert:

(2) Clause 2, page 2 (before table item 10), insert:

(3) Clause 2, page 2 (table item 10), omit the table item, substitute:

(4) Schedule 2, item 25, page 47 (after line 24), after paragraph 73ZK(1)(l), insert:

(la) subsection 73VA(10);

(5) Schedule 2, page 75 (after line 6), after item 70, insert:

70A Subsection 202 B( 1) (at the end of the table)

Add:

70B Subsection 202 B( 2)

Omit "or 3", substitute ", 3 or 4".

(6) Schedule 2, item 75, page 76 (lines 30 to 32), omit the item, substitute:

(9) The amendments made by this Part, other than the amendments referred to in subitems (1) to (8), apply in relation to conduct engaged in on or after the commencement of this item.

(8) Schedule 2, page 86 (after line 30), at the end of the Schedule, add:

Part 9 — Additional penalties for fraudulent conduct

National Disability Insurance Scheme Act 2013

106 Division 4 of Part 1 of Chapter 4

Repeal the Division, substitute:

Division 4 — Penalties for fraudulent conduct

59A False or misleading statements, information or documents to the Commission

(1) A person contravenes this subsection if:

(a) the person makes a statement or provides information or a document to the Commissioner or a Commission officer; and

(b) the person does so knowing that the statement, information or document:

(i) is false or misleading; or

(ii) omits any matter or thing without which the statement, information or document is misleading; and

(c) the statement is made, or the information or document is provided, for the purposes of this Act (other than in, or in connection with, an application for registration).

Note: For false or misleading information or documents provided in, or in connection with, an application for registration, see section 73D.

Offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) for a serious contravention by an NDIS provider—imprisonment for 5 years or 1,000 penalty units, or both; or

(b) in any other case—imprisonment for 12 months or 120 penalty units, or both.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) for a serious contravention by an NDIS provider—10,000 penalty units; or

(b) in any other case—120 penalty units.

Defences

(4) Subsection (1) does not apply:

(a) as a result of subparagraph (1)(b)(i) if the statement, information or document is not false or misleading in a material particular; or

(b) as a result of subparagraph (1)(b)(ii) if the statement, information or document did not omit any matter or thing without which the statement, information or document is misleading in a material particular.

Note: A defendant bears an evidential burden in relation to a matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

(5) Subsection (1) does not apply if:

(a) the person is a participant or a prospective participant; and

(b) before the statement was made, or information or document was provided, the Commissioner or a Commission Officer did not take reasonable steps to inform the person of the existence of the offence against subsection (2).

Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

(6) For the purposes of subsection (5), it is sufficient if the following form of words is used:

"Giving false or misleading information is a serious offence".

59AB False or misleading statements, information or documents to the Agency

(1) A person contravenes this subsection if:

(a) the person makes a statement or provides information or a document to the Agency or an Agency officer; and

(b) the person does so knowing that the statement, information or document:

(i) is false or misleading; or

(ii) omits any matter or thing without which the statement, information or document is misleading; and

(c) any of the following subparagraphs apply:

(i) the statement is made, or the information or document is provided, in or in connection with a request under Part 1 of Chapter 3;

(ii) the statement is made, or the information or document is provided, to a person who is exercising powers or performing functions under, or in connection with, Part 2 of Chapter 3;

(iii) the statement is made, or the information or document is provided, in compliance or purported compliance with a requirement under Division 1 or 2 of Part 1, or Division 1 of Part 5, of Chapter 4.

Note: See sections 97 and 98 for protections of nominees against criminal or civil liability in certain circumstances.

Offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) for a serious contravention by an NDIS provider—imprisonment for 5 years or 1,000 penalty units, or both; or

(b) in any other case—imprisonment for 12 months or 120 penalty units, or both.

Civil penalty

(3) A person is liable to a civil penalty if the person contravenes subsection (1).

Civil penalty:

(a) for a serious contravention by an NDIS provider—10,000 penalty units; or

(b) in any other case—120 penalty units.

Defences

(4) Subsection (1) does not apply:

(a) as a result of subparagraph (1)(b)(i) if the statement, information or document is not false or misleading in a material particular; or

(b) as a result of subparagraph (1)(b)(ii) if the statement, information or document did not omit any matter or thing without which the statement, information or document is misleading in a material particular.

Note: A defendant bears an evidential burden in relation to a matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

(5) Subsection (1) does not apply if:

(a) the person is a participant or a prospective participant; and

(b) before the statement was made, or information or document was provided, the Agency or an Agency officer did not take reasonable steps to inform the person of the existence of the offence against subsection (2).

Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code and section 96 of the Regulatory Powers Act.

(6) For the purposes of subsection (5), it is sufficient if the following form of words is used:

"Giving false or misleading information is a serious offence".

59AC Obtaining etc. payment that is not payable

(1) A person contravenes this subsection if:

(a) the person engages in conduct that results in:

(i) a payment being made to the person or another person that is, or purports to be, a payment of an NDIS amount; or

(ii) an NDIS amount becoming payable or purportedly payable to, or in respect of, the person or another person; and

(b) the person knows that:

(i) the person or other person is not entitled to the payment of the NDIS amount; or

(ii) the NDIS amount paid or payable, is in excess of the amount that the person or other person is entitled to.

Offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) for a serious contravention by an NDIS provider—imprisonment for 5 years or 1,000 penalty units, or both; or

(b) in any other case—imprisonment for 12 months or 120 penalty units, or both.

59AD Obtaining etc. payment through fraud

(1) A person contravenes this subsection if:

(a) the person engages in conduct that results in:

(i) a payment being made to the person or another person that is, or purports to be, a payment of an NDIS amount; or

(ii) an NDIS amount becoming payable or purportedly payable to, or in respect of, the person or another person; and

(b) the person knows that:

(i) the person or other person is not entitled to the payment of the NDIS amount; or

(ii) the NDIS amount paid or payable, is in excess of the amount that the person or other person is entitled to; and

(c) the person does so dishonestly, by a deception or by means of impersonation.

Offence

(2) A person commits an offence if the person contravenes subsection (1).

Penalty:

(a) for a serious contravention by an NDIS provider—imprisonment for 10 years or 2,000 penalty units, or both; or

(b) in any other case—imprisonment for 5 years or 1,000 penalty units, or both.

Dishonesty

(3) In a prosecution for an offence against subsection (2), the determination of dishonesty is a matter for the trier of fact.

Definitions

(4) In this section:

dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

59AE Concealing, disposing etc. records required to be kept

A person commits an offence if:

(a) the person is required under the Act to keep a record; and

(b) the person:

(i) conceals, disposes of, mutilates, alters or falsifies the record; or

(ii) causes or directs another person to conceal, dispose of, mutilate, alter or falsify the record; and

(c) the person does so with intent to:

(i) defraud; or

(ii) prevent, delay or obstruct the carrying out of an audit, review, investigation, monitoring, compliance or enforcement activity under the Act.

Penalty: Imprisonment for 2 years or 240 penalty units, or both.

59AF Serious contraventions of offences

(1) If the prosecution intends to prove a serious contravention of an offence against subsection 59A(2), 59AB(2), 59AC(2) or 59AD(2), the charge must allege the serious contravention of that provision.

Note: For a serious contravention of a provision of this Act: see subsection 11B(1).

(2) In order to prove a serious contravention of subsection 59A(2), 59AB(2), 59AC(2) or 59AD(2), the prosecution must prove:

(a) a circumstance mentioned in paragraph 11B(1)(a) or (b) exists in relation to the defendant's contravention of the provision; and

(b) the defendant knew of or was reckless as to the existence of the circumstance.

Alternative verdict

(3) In a prosecution for a serious contravention of an offence against subsection 59A(2), 59AB(2), 59AC(2) or 59AD(2), the trier of fact may find the defendant not guilty of that offence but guilty of an offence against that subsection if:

(a) the trier of fact:

(i) is not satisfied that the defendant is guilty of a serious contravention of the offence; but

(ii) is satisfied beyond reasonable doubt that the defendant is guilty of the offence; and

(b) the defendant has been accorded procedural fairness in relation to that finding of guilt.

107 Subparagraph 73ZF(1)(a)( i )

Repeal the subparagraph, substitute:

(i) section 59A; or

108 Paragraph 73ZF(1)(b)

Repeal the paragraph, substitute:

(b) an offence provision in:

(i) section 59A or 59AE; or

(ii) Part 3A, or this Part, of this Chapter; or

109 Paragraph 73ZK(1)(c)

Repeal the paragraph, substitute:

(c) subsection 59A(3);

110 Subsection 73 ZL( 1)

Omit "sections 59A and", substitute "subsection 59A(3) and section".

111 Paragraph 73ZSA(1)(c)

Repeal the paragraph, substitute:

(c) Part 1 of this Chapter (other than sections 55A and 59A);

112 After subparagraph 73ZSB(1)(a)(ii)

Insert:

(iia) section 59AB;

113 Paragraph 73ZSB(1)(b)

Repeal the paragraph, substitute:

(b) an offence provision in this Act other than in:

(i) section 59A; or

(ii) Part 3B of this Chapter;

114 After paragraph 73ZSG(1)(a)

Insert:

(aa) subsection 59AB(3);

115 After section 73ZSG

Insert:

73ZSGA Serious contraventions of civil penalty provisions

(1) If an authorised applicant is applying under the Regulatory Powers Act for a civil penalty order in relation to a serious contravention of a civil penalty provision mentioned in subsection 73ZSG(1), the application under subsection 82(1) of that Act must specify the relevant serious contravention.

(2) If, in proceedings for a civil penalty order in relation to a serious contravention of a provision mentioned in subsection 73ZSG(1), the relevant court:

(a) is not satisfied that the person has committed a serious contravention of that provision; and

(b) is satisfied that the person has contravened that provision;

the relevant court may make a civil penalty order against the person not for the serious contravention but for the contravention of that provision.

116 Subsection 73 ZSH( 1)

After "73ZSG(1)", insert "(other than subsection 59AB(3))".

117 At the end of Division 3 of Part 5 of Chapter 4

Add:

98A Offence for abuse of position as nominee

Offence for current nominee

(1) A person commits an offence if:

(a) the person is a plan nominee or a correspondence nominee of a participant; and

(b) the person:

(i) exercises any influence that the person has in their capacity as a plan nominee or a correspondence nominee of a participant; or

(ii) engages in any conduct when doing a thing under section 78 or 79 in the person's capacity as a plan nominee or a correspondence nominee of a participant; or

(iii) uses any information that the person obtained in the person's capacity as a plan nominee or a correspondence nominee of a participant; and

(c) the person does so with the intention of dishonestly:

(i) obtaining a benefit for the person or any other person; or

(ii) causing a detriment to another person.

Penalty: 120 penalty units.

Offence for former nominee

(2) A person commits an offence if:

(a) the person has ceased to be a plan nominee or a correspondence nominee of a participant; and

(b) the person obtained information in the person's capacity as a plan nominee or a correspondence nominee of a participant; and

(c) the person uses the information with the intention of dishonestly:

(i) obtaining a benefit for the person or any other person; or

(ii) causing a detriment to another person;

Penalty: 120 penalty units.

Dishonesty

(3) In a prosecution for an offence against subsection (1) or (2), the determination of dishonesty is a matter for the trier of fact.

Definitions

(4) In this section:

dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

118 Subsection 200(1)

After "offence against", insert "Division 4 of Part 1 of Chapter 4 (other than subsection 59A(2)) or".

119 Application of amendments

Division 4 of Part 1 of Chapter 4 and section 98A of the National Disability Insurance Scheme Act 2013, as inserted by this Part, apply in relation to conduct engaged in on and after the commencement of this item.

(9) Schedule 3, Part 3, page 102 (after line 12), at the end of the Part, add:

18 Paragraph 73ZKA(2)(b)

Omit "beyond reasonable doubt".

19 Application provision

The amendment of subsection 73ZKA(2) of the National Disability Insurance Scheme Act 2013 made by this Part applies in relation to the making of a civil penalty order on or after the commencement of this item.

(10) Schedule 3, page 102 (after line 12), at the end of the Schedule, add:

Part 4 — Whistleblower protections

National Disability Insurance Scheme Act 2013

18 Division 7 of Part 3A of Chapter 4 (heading)

Repeal the heading, substitute:

Division 7 — Whistleblower protections

19 Before subsection 73 ZA( 2)

Insert:

Disclosure to Commissioner, Agency or key personnel etc.

20 Subsection 73 ZA( 3)

Repeal the subsection, substitute:

Disclosure to medical practitioner or psychologist

(3) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made:

(a) to a medical practitioner or psychologist; and

(b) for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

Disclosure to Australian legal practitioner

(4) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made:

(a) to an Australian legal practitioner; and

(b) for the purpose of obtaining legal advice or legal representation in connection with the operation of this Division in relation to the discloser.

Disclosure to registered organisation or professional association

(5) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made:

(a) to an officer or employee of a registered organisation or professional association; and

(b) for the purpose of obtaining advice or assistance from an officer or employee of the organisation or association in connection with the operation of this Division in relation to the discloser.

Disclosure to police officer

(6) The disclosure of the information by the discloser qualifies for protection under this Division if:

(a) the disclosure is made to a police officer; and

(b) the discloser has reasonable grounds to suspect that the information indicates that an NDIS provider has, or may have, contravened a provision of this Act.

Disclosure to Commonwealth-funded disability advocate

(7) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made:

(a) to a Commonwealth-funded disability advocate; and

(b) for the purpose of obtaining advice or assistance from the advocate in connection with the operation of this Division in relation to the discloser.

Definitions

(8) In this section:

Australian legal practitioner has the same meaning as in the Evidence Act 1995.

Commonwealth-funded disability advocate means a person, or an employee or officer of a person, that is a party to an agreement with the Commonwealth under the Disability Services and Inclusion Act 2023 in relation to the provision of advocacy supports or services.

Note: A list of Commonwealth-funded disability advocates is maintained and published by the Agency, the Commission and the Department on their respective websites.

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

officer has the same meaning as in the Corporations Act 2001.

police officer means:

(a) a member of the Australian Federal Police (within the meaning of the Australian Federal Police Act 1979); or

(b) a special member of the Australian Federal Police (within the meaning of that Act); or

(c) a member of the police force or police service of a State or Territory.

psychologist means a person registered or licensed as a psychologist under a law of a State or Territory that provides for the registration or licensing of psychologists.

registered organisation means an organisation registered, or an association recognised, under the Fair Work (Registered Organisations) Act 2009.

21 After section 73ZB

Insert:

73ZBAA Claims for protection

(1) If, in civil or criminal proceedings (the primary proceedings) instituted against an individual in a court, the individual makes a claim (relevant to the primary proceedings) that, because of section 73ZB, the individual is not subject to any civil or criminal liability for making a particular disclosure:

(a) the individual bears the onus of adducing or pointing to evidence that suggests a reasonable possibility that the claim is made out; and

(b) if the individual discharges that onus—the party instituting the primary proceedings against the individual bears the onus of proving that the claim is not made out; and

(c) the court must deal with the claim in separate civil proceedings; and

(d) the court must adjourn the primary proceedings until the claim has been dealt with; and

(e) none of the following:

(i) any admission made by the individual in the separate civil proceedings;

(ii) any information given by the individual in the separate civil proceedings;

(iii) any other evidence adduced by the individual in the separate civil proceedings;

is admissible in evidence against the individual except in proceedings in respect of the falsity of the admission, information or evidence; and

(f) if the individual or another person gives evidence in the separate civil proceedings in support of the claim—giving that evidence does not amount to a waiver of privilege for the purposes of the primary proceedings or any other proceedings.

(2) To avoid doubt, a right under section 126K of the Evidence Act 1995 not to be compelled to give evidence is a privilege for the purposes of paragraph (1)(f) of this section.

22 At the end of section 73ZC

Add:

Burden of proof

(5) In proceedings for a civil penalty order against a person (the respondent) for a contravention of subsection (1) or (2):

(a) the applicant for the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters in:

(i) if subsection (1) applies—paragraphs (1)(a) and (b); or

(ii) if subsection (2) applies—paragraph (2)(a); and

(b) if that onus is discharged—the respondent bears the onus of proving that the claim is not made out.

Meaning of detriment

(6) In this section, detriment includes (without limitation) any of the following:

(a) dismissal of an employee;

(b) injury of an employee in the employee's employment;

(c) alteration of an employee's position or duties to the employee's disadvantage;

(d) discrimination between an employee and other employees of the same employer;

(e) harassment or intimidation of a person;

(f) harm or injury to a person, including psychological harm;

(g) damage to a person's property;

(h) damage to a person's reputation;

(i) damage to a person's business or financial position;

(j) any other damage to a person.

23 Section 73ZD

Repeal the section, substitute:

73ZD Compensation and other remedies — court orders

A court may make any order the court considers appropriate if the court is satisfied that a person has contravened, or proposes to contravene, subsection 73ZC(1) or (2), including any of the following orders:

(a) an order granting an injunction, or interim injunction, to prevent, stop or remedy the effects of a contravention;

(b) an order awarding compensation for loss, damage or injury that a person has suffered because of the contravention;

(c) an order for reinstatement of an individual;

(d) an order for exemplary damages.

24 At the end of Division 7 of Part 3A of Chapter 4

Add:

73ZDAA Concurrent operation of State and Territory laws

This Division does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Division.

25 Application of amendments

Disclosures qualifying for protection

(1) The amendments of section 73ZA of the National Disability Insurance Scheme Act 2013 made by this Part apply in relation to a disclosure of information made on or after the commencement of this item (whether the information was obtained before, on or after that commencement).

Burden of proof

(2) Section 73ZBAA and subsection 73ZC(5) of the National Disability Insurance Scheme Act 2013, as inserted by this Part, apply in relation to a proceeding instituted on or after the commencement of this item.

Remedies

(3) Section 73ZD of the National Disability Insurance Scheme Act 2013, as substituted by this Part, applies in relation to a contravention or proposed contravention that occurs on or after the commencement of this item.

Question agreed to.

The TEMPORARY CHAIR: I will now deal with the remaining amendments circulated by the Australian Greens. The first question is that part 8 of schedule 1; items 29, 30, 32, 66, 71 and 72 in schedule 1; and section 59D in item 11 in schedule 3 stand as printed.

Australian Greens circulated amendments—

SHEET 3829

(2) Schedule 1, Part 8, page 36 (line 1) to page 38 (line 30), to be opposed.

_____

SHEET 3830

(2) Schedule 1, item 66, page 25 (lines 25 and 26), to be opposed.

(4) Schedule 1, items 71 and 72, page 27 (lines 1 to 6), to be opposed.

_____

SHEET 3851

(5) Schedule 3, item 11, page 97 (line 24) to page 99 (line 3), section 59D to be opposed.

_____

SHEET 3933

(1) Schedule 1, items 29 and 30, page 11 (lines 6 to 9), to be opposed.

(3) Schedule 1, item 32, page 11 (lines 13 to 18), to be opposed.

David Pocock (ACT, Independent) | Link to this | Hansard source

by leave—I was hoping I could note my support noted for amendment (2) on sheet 3829 and amendments (2) and (4) on sheet 3830.

Karen Grogan (SA, Australian Labor Party) | Link to this | Hansard source

Certainly. The question now is that amendments on sheets 3826, 3828, 3833, 3843, 3844, 3845, 3846, 3850, 3852, 3853, 3922, 3930, 3931, 3932 and 3934 and the remaining amendments on sheets 3829, 3830, 3851 and 3933 be agreed to.

Australian Greens ' circulated amendments—

SHEET 3826

(1) Schedule 5, item 1, page 109 (lines 9 to 17), omit subitems (2) and (3).

_____

SHEET 3828

(1) Schedule 1, item 73, page 27 (before line 9), before subsection 34(1A), insert:

(1AA) In specifying the general supports that will be provided, or the reasonable and necessary supports that will be funded, the CEO must consider specifying any general support or reasonable and necessary support that the participant requests to be specified during the preparation of the statement of participant supports.

(1AB) If:

(a) in specifying the general supports that will be provided, or the reasonable and necessary supports that will be funded, the CEO considered specifying a particular support; but

(b) the CEO did not specify that support because the CEO was not satisfied of a matter referred to in any of the paragraphs of subsection (1) in relation to that support;

the CEO must give the participant a written notice setting out the following:

(c) the matter in respect of which the CEO was not satisfied in relation to that support;

(d) the CEO's reasons for not being so satisfied.

_____

SHEET 3833

(1) Clause 1, page 1 (line 15), omit "Securing", substitute "Gutting".

(2) Schedule 1, item 35, page 15 (line 9), omit "Securing", substitute "Gutting".

(3) Schedule 4, item 15, page 107 (line 11), omit "Securing", substitute "Gutting".

(4) Schedule 4, item 16, page 107 (line 19), omit "Securing", substitute "Gutting".

(5) Schedule 4, item 20, page 108 (line 4), omit "Securing", substitute "Gutting".

_____

SHEET 3843

(1) Clause 2, page 2 (table items 2 to 6), omit the table items, substitute:

(2) Clause 2, page 3 (after line 3), at the end of the clause, add:

Commencement of table items 2, 3, 4, 5 and 6

(3) The Minister may, by notifiable instrument, fix a day for the purposes of items 2, 3, 4, 5 and 6 of the table.

(4) Before making an instrument under subsection (3), the Minister must be satisfied that:

(a) there are established, funded and operational foundational supports in each host jurisdiction; and

(b) those foundational supports are available and accessible to participants, or prospective participants, that are likely to be adversely affected by the amendments made by the provisions specified in column 1 of those table items.

_____

SHEET 3844

(1) Schedule 1, item 4, page 4 (lines 18 to 23), omit subsection 9B(1), substitute:

(1) A person's functional capacity, in relation to an activity, is the person's ability to undertake the activity without assistance from other people, assistive technology or modifications.

(1A) In determining, for the purposes of subsection (1), a person's ability to undertake an activity, the person's environmental, social, cultural and personal circumstances must be taken into account.

_____

SHEET 3845

(1) Schedule 1, item 34, page 14 (after line 14), after subsection 34A(3), insert:

(3A) Before making a determination under this section, the Minister must:

(a) publish an exposure draft of the proposed determination; and

(b) invite members of the public to give comments on the proposed determination within a specified period (the consultation period); and

(c) take reasonable steps during the consultation period to consult the following persons and bodies on the proposed determination:

(i) people with disability;

(ii) organisations representing the disability community and disability sector;

(iii) organisations representing the disability support provider sector;

(iv) any other persons the Minister considers appropriate; and

(d) publish:

(i) a statement summarising the comments received during the consultation period and the Minister's response to those comments; and

(ii) a disability impact statement setting out the expected effect of the proposed determination on participants and prospective participants.

(3B) For the purposes of paragraph (3A)(b), the consultation period must not be less than 28 days beginning on the day the exposure draft of the proposed determination is published.

(3C) A determination made under this section does not come into effect unless the determination is approved by resolution of each House of the Parliament within 15 sitting days of that House beginning on the first sitting day after a copy of the determination is laid before that House.

(3D) If either House of the Parliament does not pass a resolution approving the determination within the period referred to in subsection (3C) the determination is repealed on the day after the end of that period.

(2) Schedule 1, page 26 (after line 26), after item 68, insert:

68A Before subsection 33(2F)

Insert:

(2ED) Before making a determination under subsection (2E), the Minister must:

(a) publish an exposure draft of the proposed determination; and

(b) invite members of the public to give comments on the proposed determination within a specified period (the consultation period); and

(c) take reasonable steps during the consultation period to consult the following persons and bodies on the proposed determination:

(i) people with disability;

(ii) organisations representing the disability community and disability sector;

(iii) organisations representing the disability support provider sector;

(iv) any other persons the Minister considers appropriate; and

(d) publish:

(i) a statement summarising the comments received during the consultation period and the Minister's response to those comments; and

(ii) a disability impact statement setting out the expected effect of the proposed determination on participants and prospective participants.

(2EE) For the purposes of paragraph (2ED)(b), the consultation period must not be less than 28 days beginning on the day the exposure draft of the proposed determination is published.

(2EF) A determination made under subsection (2E) does not come into effect unless the determination is approved by resolution of each House of the Parliament within 15 sitting days of that House beginning on the first sitting day after a copy of the determination is laid before that House.

(2EG) If either House of the Parliament does not pass a resolution approving the determination within the period referred to in subsection (2EF) the determination is repealed on the day after the end of that period.

(3) Schedule 3, page 101 (after line 6), after Part 2, insert:

Part 2A — Significant NDIS rules

National Disability Insurance Scheme Act 2013

13A After section 209D

Insert:

209E Additional requirements for certain National Disability Insurance Scheme rules

Rules to which this section applies

(1) This section applies to National Disability Insurance Scheme rules made for the purposes of any of the following provisions:

(a) subsection 9B(2);

(b) subsection 25A(4);

(c) section 25B.

Consultation requirements

(2) Before making rules to which this section applies, the Minister must:

(a) publish an exposure draft of the proposed rules; and

(b) invite members of the public to give comments on the proposed rules within a specified period (the consultation period); and

(c) take reasonable steps during the consultation period to consult the following persons and bodies on the proposed rules:

(i) people with disability;

(ii) organisations representing the disability community and disability sector;

(iii) organisations representing the disability support provider sector;

(iv) any other persons the Minister considers appropriate; and

(d) publish:

(i) a statement summarising the comments received during the consultation period and the Minister's response to those comments; and

(ii) a disability impact statement setting out the expected effect of the proposed rules on participants and prospective participants.

(3) For the purposes of paragraph (2)(b), the consultation period must not be less than 28 days beginning on the day the exposure draft of the proposed rules is published.

Parliamentary approval

(4) Rules to which this section applies do not come into effect unless the rules are approved by resolution of each House of the Parliament within 15 sitting days of that House beginning on the first sitting day after a copy of the rules was laid before that House.

(5) If either House of the Parliament does not pass a resolution approving the rules within the period referred to in subsection (4) the rules are repealed on the day after the end of that period.

_____

SHEET 3846

(1) Schedule 3, page 87 (before line 4), before item 1, insert:

1A Section 9

Insert:

Pricing Authority means the Independent Health and Aged Care Pricing Authority.

(2) Schedule 3, item 3, page 88 (after line 11), after subsection 34B(2), insert:

(2A) Before making a determination under subsection (2) in relation to old framework plans generally, or a class of old framework plans, the Minister must seek the Pricing Authority's advice, in writing, on what an appropriate indexation factor, or appropriate method for working out an indexation factor, for the funding component amount for a specified group of NDIS supports, would be.

(2B) The Minister must not make a determination under subsection (2) without the Pricing Authority's written agreement to the determination.

(2C) In seeking the Pricing Authority's agreement, the Minister must give the Pricing Authority:

(a) a copy of the proposed determination; and

(b) any material that is relevant to the determination.

(2D) In deciding whether to agree to the determination, the Pricing Authority may seek assistance, input or information from such persons as the Authority determines.

(2E) The Minister must:

(a) cause a copy of any advice given to the Minister under subsection (2A) in relation to the determination to be published on the Agency's website; and

(b) do so as soon as practicable after making the determination.

(3) Schedule 3, item 4, page 89 (after line 9), after subsection 45C(1), insert:

(1A) Before making a determination under subsection (1), the Minister must seek the Pricing Authority's advice, in writing, on what an appropriate maximum amount, or an appropriate method for determining the maximum amount, for the acquisition or provision of an NDIS support or class of NDIS supports, would be.

(1B) The Minister must not make a determination under subsection (1) without the Pricing Authority's written agreement to the determination.

(1C) In seeking the Pricing Authority's agreement, the Minister must give the Pricing Authority:

(a) a copy of the proposed determination; and

(b) a copy of any relevant advice provided by the Agency under subsection (14); and

(c) a copy of any instrument or other writing applied, adopted or incorporated by the determination as mentioned in subsection (11); and

(d) any other material that is relevant to the determination.

(1D) In deciding whether to agree to the determination, the Pricing Authority may seek assistance, input or information from such persons as the Authority determines.

(1E) The Minister must:

(a) cause a copy of any advice given to the Minister under subsection (1A) in relation to the determination to be published on the Agency's website; and

(b) do so as soon as practicable after making the determination.

_____

SHEET 3850

(1) Schedule 1, item 73, page 29 (line 1) to page 30 (line 5), omit subsections 34(1G) to (1K).

_____

SHEET 3852

(1) Schedule 1, item 34, page 14 (lines 17 to 24), omit subsection 34A(5).

(2) Schedule 1, page 25 (after line 26), after item 66, insert:

66A Section 32D (at the end of the heading)

Add "etc.".

66B After subsection 32 D( 3)

Insert:

Plan must not deal with co-payments

(3A) A participant's plan must not specify that the participant is to contribute an amount (that is not an NDIS amount) of money in respect of an NDIS support under the participant's plan.

66C Section 33 (at the end of the heading)

Add "etc.".

66D After subsection 33(3)

Insert:

Plan must not deal with co-payments

(3A) A participant's plan must not specify that the participant is to contribute an amount (that is not an NDIS amount) of money in respect of an NDIS support under the participant's plan.

_____

SHEET 3853

(1) Clause 2, page 2 (after table item 10), insert:

(2) Page 108 (after line 5), after Schedule 4, insert:

Schedule 4A — Whistleblower protections

National Disability Insurance Scheme Act 2013

1 Section 9

Insert:

legal practitioner means a barrister, a solicitor, a barrister and solicitor or a legal practitioner of the High Court or of the Supreme Court of a State or Territory.

2 After subsection 73 ZA( 2)

Insert:

Disclosures to legal practitioners

(2A) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made to a legal practitioner for the purpose of obtaining legal advice or legal representation in relation to the operation of this Division.

Disclosures to medical practitioners or psychologists

(2B) The disclosure of the information by the discloser qualifies for protection under this Division if the disclosure is made to a medical practitioner or psychologist for the purpose of obtaining medical or psychiatric care, treatment or counselling (including psychological counselling).

Disclosures to employee organisations

(2C) The disclosure of the information by the discloser qualifies for protection under this Division if:

(a) the disclosure is made to an officer or employee of an employee organisation for the purpose of obtaining advice or assistance in relation to the operation of this Division; and

(b) the discloser is a member of the employee organisation; and

(c) the extent of the information disclosed is no more than is reasonably necessary to obtain the advice or assistance.

Disclosures to independent advocates

(2D) The disclosure of the information by the discloser qualifies for protection under this Division if:

(a) the discloser is a person with disability who is or was receiving a support or service from the NDIS provider; and

(b) the disclosure is made to an independent advocate of the discloser for the purpose of obtaining advice or assistance in relation to the operation of this Division.

3 Subsection 73 ZA( 3)

Repeal the subsection, substitute:

Definitions

(3) In this section:

employee organisation has the same meaning as in the Fair Work Act 2009.

medical practitioner means a person registered or licensed as a medical practitioner under a law of a State or Territory that provides for the registration or licensing of medical practitioners.

officer has the same meaning as in the Corporations Act 2001.

psychologist means a person registered or licensed as a psychologist under a law of a State or Territory that provides for the registration or licensing of psychologists.

4 Paragraph 73ZB(1)(a)

Omit "civil or criminal liability", substitute "civil, criminal or administrative liability (including disciplinary action)".

5 Paragraph 73ZB(1)(a)

After "for making the disclosure", insert "or for doing anything reasonably necessary for the purpose of making the disclosure".

6 Paragraph 73ZB(1)(b)

After "the disclosure", insert "or anything done by the person that was reasonably necessary for the purpose of making the disclosure".

7 At the end of subsection 73 ZB( 1)

Add:

; and (c) the information disclosed is not admissible in evidence against the person in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings in respect of the falsity of the information.

8 Subsection 73ZB( 1)( note)

Omit "This subsection does not provide that the person is not subject to any civil or criminal liability", substitute "Except as provided for by paragraph (c), this subsection does not prevent the person being subject to any civil, criminal or administrative liability".

9 Paragraph 73ZB(2)(a)

After "the disclosure", insert "or anything done by the person that was reasonably necessary for the purpose of making the disclosure".

10 Paragraph 73ZB(2)(b)

After "the disclosure", insert ", or anything done by the person that was reasonably necessary for the purpose of making the disclosure,".

11 Subsection 73 ZB( 3)

After "the disclosure" (wherever occurring), insert "or the thing done".

_____

SHEET 3922

(1) Schedule 1, item 73, page 30 (after line 5), after subsection 34(1K), insert:

(1L) For the purposes of paragraph (1)(e) so far as it applies in relation to a participant who is over the age of 18, the CEO must take into account the presumption that parents are not responsible for providing substantial care and support for their children who are over the age of 18.

_____

SHEET 3930

(1) Clause 2, page 2 (before table item 11), insert:

(2) Page 109 (before line 1), before Schedule 5, insert:

Schedule 4B — Other whistleblower protections

National Disability Insurance Scheme Act 2013

1 Section 9

Insert:

journalist means a person who is working in a professional capacity as a journalist for any of the following:

(a) a newspaper or magazine;

(b) a radio or television broadcasting service;

(c) an electronic service (including a service provided through the internet) that:

(i) is operated on a commercial basis, or operated by a body that provides a national broadcasting service (within the meaning of the Broadcasting Services Act 1992); and

(ii) is similar to a newspaper, magazine or radio or television broadcast.

2 Before subsection 73 ZA( 3)

Insert:

External disclosures

(2E) The disclosure (the external disclosure) of the information by the discloser qualifies for protection under this Division if:

(a) the discloser previously made a disclosure (the previous disclosure) of that information; and

(b) the previous disclosure qualifies for protection under this Division under subsection (2) of this section; and

(c) at least 90 days have passed since the previous disclosure was made; and

(d) the discloser does not have reasonable grounds to believe that action is being, or has been, taken to address the matters to which the previous disclosure related; and

(e) after the end of the period referred to in paragraph (c) but before making the external disclosure, the discloser gave the entity to which the previous disclosure was made a written notification that:

(i) includes sufficient information to identify the previous disclosure; and

(ii) states that the discloser intends to make the external disclosure; and

(f) the external disclosure is made to:

(i) a member of the Parliament of the Commonwealth, the Parliament of a State or the legislature of a Territory; or

(ii) a journalist; and

(g) the extent of the information disclosed in the external disclosure is no more than is reasonably necessary to inform the recipient referred to in paragraph (f) of the matters to which the previous disclosure related.

3 After section 73ZBA

Insert:

73ZBB Whistleblower policies

(1) An NDIS provider must:

(a) have a policy that sets out the matters mentioned in subsection (2); and

(b) make that policy available to the persons mentioned in subsection (3).

Note: A policy that complies with this subsection may also be a policy that complies with requirements under another law.

(2) The matters are:

(a) information about the protections available under this Division; and

(b) information about to whom disclosures that qualify for protection under this Division may be made, and how they may be made; and

(c) information about how the NDIS provider will support disclosers and protect them from detriment; and

(d) information about how the NDIS provider will investigate disclosures that qualify for protection under this Division; and

(e) information about how the NDIS provider will ensure fair treatment of persons mentioned in disclosures that qualify for protection under this Division, or to whom such disclosures relate; and

(f) any other matters prescribed by the regulations for the purposes of this paragraph.

(3) The persons are:

(a) if the NDIS provider is a body corporate—the following:

(i) a person who is an officer or employee of the body corporate;

(ii) a person who has a contract for the supply of goods or services to, or on behalf of, the body corporate; and

(b) if the NDIS provider is an unincorporated association—the following:

(i) a person who is a member of the committee of management or an employee of the association;

(ii) a person who has a contract for the supply of goods or services to, or on behalf of, the association; and

(c) if the NDIS provider is a partnership—the following:

(i) a person who is a partner in or an employee of the partnership;

(ii) a person who has a contract for the supply of goods or services to, or on behalf of, the partnership; and

(d) in any case—the following:

(i) a person with disability who is receiving a support or service from the NDIS provider;

(ii) a person who has requested a copy of the policy and who is a nominee, family member, carer, independent advocate or significant other of the person mentioned in subparagraph (d)(i).

(4) Subsection (1) applies after the 6-month period beginning on the commencement of this section.

(5) An NDIS provider contravenes this subsection if the provider fails to comply with subsection (1).

Civil penalty: 60 penalty units.

4 At the end of section 73ZC

Add:

Meaning of detriment

(5) In this section, detriment includes (without limitation) any of the following:

(a) dismissal of an employee;

(b) injury of an employee in the employee's employment;

(c) alteration of an employee's position or duties to the employee's disadvantage;

(d) discrimination between an employee and other employees of the same employer;

(e) harassment or intimidation of a person;

(f) harm or injury to a person, including psychological harm;

(g) damage to a person's property;

(h) damage to a person's reputation;

(i) damage to a person's business or financial position;

(j) any other damage to a person.

5 Section 73ZD

Repeal the section, substitute:

73ZD Compensation and other remedies — orders that may be made

(1) A court may make an order under subsection (2) in relation to a person (the first person) if:

(a) the first person contravenes subsection 73ZC(1) or (2); and

(b) another person (the second person) suffers loss, damage or injury because of the contravention.

(2) For the purposes of subsection (1), a Court may make any of the following orders:

(a) an order requiring the first person to compensate the second person for the loss, damage or injury;

(b) if the court is satisfied that the first person engaged in the conduct mentioned in paragraph 73ZC(1)(a) or (2)(a) (the detrimental conduct) in connection with the first person's position as an employee:

(i) an order requiring the first person to compensate the second person for a part of the loss, damage or injury as a result of the detrimental conduct, and an order requiring the first person's employer to compensate the second person for a part of the loss, damage or injury as a result of the detrimental conduct; or

(ii) an order requiring the first person and the first person's employer jointly to compensate the second person for the loss, damage or injury suffered as a result of the detrimental conduct; or

(iii) an order requiring the first person's employer to compensate the second person for the loss, damage or injury as a result of the detrimental conduct;

(c) an order granting an injunction, on such terms as the court thinks appropriate, to prevent, stop or remedy the effects of the detrimental conduct;

(d) an order requiring the first person to apologise to the second person for engaging in the detrimental conduct;

(e) if the second person is or was employed in a particular position and the detrimental conduct wholly or partly consists, or consisted, of the termination, or purported termination, of the second person's employment—an order that the second person be reinstated in that position or a position at a comparable level;

(f) if the court thinks it is appropriate—an order requiring the first person to pay exemplary damages to the second person;

(g) any other order the court thinks appropriate.

Burden of proof

(3) In proceedings where a person seeks an order under this section in relation to another person:

(a) the person seeking the order bears the onus of adducing or pointing to evidence that suggests a reasonable possibility of the matters mentioned in paragraphs (1)(a) and (b); and

(b) if that onus is discharged, the other person bears the onus of proving that the claim is not made out.

6 At the end of Division 7 of Part 3A

Add:

73ZDAA Costs only if proceedings instituted vexatiously etc.

(1) This section applies to a proceeding (including an appeal) in a court in relation to a matter arising under section 73ZD in which a person (the claimant) is seeking an order under subsection 73ZD(2).

(2) The claimant must not be ordered by the court to pay costs incurred by another party to the proceedings, except in accordance with subsection (3) of this section.

(3) The claimant may be ordered to pay the costs only if:

(a) the court is satisfied that the claimant instituted the proceedings vexatiously or without reasonable cause; or

(b) the court is satisfied that an unreasonable act or omission of the claimant caused the other party to incur the costs.

_____

SHEET 3931

(1) Schedule 3, item 11, page 97 (line 8), omit "section 33", substitute "subsection 33(2E)".

_____

SHEET 3932

_____

SHEET 3932

(1) Schedule 1, page 12 (before line 3), before item 34, insert:

33A Section 9

Insert:

high risk participant has the meaning prescribed by the National Disability Insurance Scheme rules.

(2) Schedule 1, item 34, page 14 (after line 24), at the end of section 34A, add:

Exemptions for high risk participants

(6) If a determination under subsection (1) applies in relation to a high risk participant's plan, the participant may apply to the CEO for an exemption from the determination or part of the determination.

(7) The application must:

(a) be in the form (if any) approved by the CEO; and

(b) include any information, and be accompanied by any documents, required by the CEO.

(8) Within 21 days of receiving the application, the CEO must:

(a) if, having regard to the impact that the determination would have on the safety of the participant, the CEO is satisfied that it is not appropriate for the determination or part of the determination (as the case may be) to apply to the participant's plan—grant the exemption; or

(b) otherwise—refuse the exemption.

(9) If the CEO grants the exemption under paragraph (8)(a):

(a) the CEO must notify the participant of the grant of the exemption; and

(b) the determination or part of the determination (as the case may be) is taken to have no effect, and to never have had effect, in relation to the participant's plan.

Note: For notification of a decision to refuse the exemption under paragraph (8)(b), see subsection 100(1).

(10) The CEO is taken to have granted the exemption under paragraph (8)(a) if the CEO does not give notice of the CEO's decision on the application within the period specified in subsection (8).

(3) Schedule 1, page 14 (after line 24), after item 34, insert:

34A Subsection 99(1) (after table item 4)

Insert:

_____

SHEET 3934

(1) Schedule 1, item 21, page 9 (lines 5 to 23), omit subsection 48A(1), substitute:

(1A) For the purposes of paragraph 48(2)(b), the conditions are that:

(a) the conditions in subsection (1) are met; or

(b) a determination under subsection 34A(1) applies in relation to the participant's plan.

(1) The conditions in this subsection are met if:

(a) there has been a significant change to those ongoing support needs of the participant that arise from an impairment in relation to which the participant meets the disability requirements or the early intervention requirements; and

(b) the significant change to those needs results from either or both of the following:

(i) an alteration in the participant's functional capacity in relation to an activity covered by paragraph 24(1)(c) or subparagraph 25(1)(c)(i);

(ii) an alteration in the participant's personal or environmental circumstances; and

(c) to the extent that the alteration is as mentioned in subparagraph (b)(i)—the condition in subsection (2) is met in relation to the alteration; and

(d) to the extent that the alteration is as mentioned in subparagraph (b)(ii)—the condition in subsection (3) is met in relation to the alteration.

Note: For functional capacity, in relation to an activity, see section 9B.

_____

SHEET 3829

(1)—Clause 2, page 2 (table item 6), omit "Parts 8 and 9", substitute "Part 9".

_____

SHEET 3830

(1)—Schedule 1, page 24 (after line 10), after item 61, insert:

61A Section 9 (definition of NDIS support )

Repeal the definition, substitute:

NDIS support, for a participant or prospective participant, means a support that is reasonable and necessary for the participant or prospective participant.

61B Section 10

Repeal the section.

(3)—Schedule 1, item 69, page 26 (lines 27 and 28), omit the item, substitute:

69 Paragraph 34(1)(f)

Repeal the paragraph.

(5)—Schedule 1, item 73, page 28 (lines 6 to 35), omit subsections 34(1E) and (1F).

_____

SHEET 3851

(1)—Schedule 3, item 10, page 94 (lines 11 and 12), omit the definition of standard operating procedure instrument in section 9.

(2)—Schedule 3, item 11, page 94 (line 18), after "administrative action", insert "(other than evaluative administrative action)".

(3)—Schedule 3, item 11, page 95 (lines 31 to 38), omit subsection 59B(4), substitute:

Meaning of evaluative administrative action

(4) In subsection (1), evaluative administrative actionmeans an administrative action that involves one or more evaluative determinations.

(4)—Schedule 3, item 11, page 97 (lines 20 to 23), omit subsection 59C(3).

_____

SHEET 3933

(2)—Schedule 1, item 31, page 11 (lines 10 to 12), omit the item, substitute:

31 Paragraph 34( 1)( aa)

After "arising", insert "substantially".

(4)—Schedule 4, item 10, page 106 (lines 13 and 14), omit the item, substitute:

10 Paragraph 32L(6)(a)

After "arising", insert "substantially".

David Pocock (ACT, Independent) | Link to this | Hansard source

Sorry, Chair, because we're batching, could I note my opposition to sheets 3826, 3829, 3830, 3833, 3844 and 3850.

Karen Grogan (SA, Australian Labor Party) | Link to this | Hansard source

Certainly. We'll now go to Senator Pocock's amendments. The first question is that part 4 of schedule 1 stand as amended and section 59D of item 11 in schedule 3 stand as printed.

Senator David Pocock's circulated amendments—

SHEET 3984

(2) Schedule 1, Part 4, page 12 (line 1) to page 14 (line 24), to be opposed.

_____

SHEET 3987

(6) Schedule 3, item 11, page 97 (line 24) to page 99 (line 3), section 59D to be opposed.

Karen Grogan (SA, Australian Labor Party) | Link to this | Hansard source

The question now is that Senator David Pocock's remaining amendments (1), (3), (4) and (5) on sheet 3984; amendments on sheet 3985; and remaining amendments (1) to (5) on sheet 3987 be agreed to.

Senator David Pocock's circulated amendments

SHEET 3984

(1) Clause 2, page 2 (table item 3), omit the table item.

(3) Schedule 1, item 45, page 16 (line 28) to page 17 (line 2), omit subsection 38(3).

(4) Schedule 1, item 50, page 18 (lines 5 to 10), omit the note.

(5) Schedule 3, item 11, page 95 (line 12), omit "subsections 34A(2) and 34B(4)", substitute "subsection 34B(4)".

_____

SHEET 3985

(1) Schedule 1, item 34, page 14 (after line 24), at the end of section 34A, add:

Exemptions

(6) If a determination under subsection (1) applies in relation to a participant's plan, the participant or the participant's plan nominee may apply to the CEO for an exemption from the determination in relation to the participant's plan.

(7) The application must:

(a) be in the form (if any) approved by the CEO; and

(b) include any information, and be accompanied by any documents, required by the CEO.

(8) If the CEO receives an application under subsection (6), the CEO must:

(a) if the CEO is satisfied that the effect of the determination would be to create an unacceptable risk to the participant's safety, or cause or materially increase the risk of the participant becoming socially isolated—grant the exemption; or

(b) otherwise—refuse the exemption.

(9) If the CEO grants the exemption under paragraph (8)(a):

(a) the CEO must notify, in writing, the participant of the grant of the exemption; and

(b) the determination is taken to have no effect, and to not have had effect from the date that the application was made under subsection (6), in relation to the participant's plan.

Note: For notification of a decision to refuse the exemption under paragraph (8)(b), see subsection 100(1).

[exemptions for support determinations

(2) Schedule 1, page 14 (after line 24), after item 34, insert:

34A Subsection 99(1) (after table item 4)

Insert:

_____

SHEET 3987

(1) Schedule 3, item 10, page 94 (after line 6), after the definition of designated provision in section 9, insert:

evaluative administrative action means an administrative action that involves one or more evaluative determinations.

(2) Schedule 3, item 10, page 94 (lines 11 and 12), omit the definition of standard operating procedure instrument in section 9.

(3) Schedule 3, item 11, page 94 (line 18), after "administrative action", insert "(other than evaluative administrative action)".

(4) Schedule 3, item 11, page 95 (lines 31 to 38), omit subsection 59B(4).

(5) Schedule 3, item 11, page 97 (lines 20 to 23), omit subsection 59C(3).

Karen Grogan (SA, Australian Labor Party) | Link to this | Hansard source

The question now is that the remaining stages of the bill be agreed to and the bill be now passed.