Stuart Robert (Fadden, Liberal Party, Minister for the National Disability Insurance Scheme) Share this | Hansard source

I move:

That this bill be now read a second time.

The National Disability Insurance Scheme Amendment (Strengthening Banning Orders) Bill strengthens the existing powers of the National Disability Insurance Scheme (NDIS) Quality and Safeguards Commissioner to ban a worker or provider from delivering services in the NDIS market.

This bill aims to protect and prevent people with disability from experiencing harm from service provision and the people who work closely with them.

The recent tragic circumstances surrounding the death of Ann Marie Smith in South Australia have highlighted just how important it is to have the strongest possible protections available for NDIS participants.

The death of Ms Smith is absolutely shocking and the circumstances that led to her death must never be allowed to happen again.

As is appropriate, the circumstances of Ms Smith's death are being investigated by the independent bodies established to do just that. These independent bodies include the South Australia Police, the NDIS Quality and Safeguards Commission and the South Australian Coroner.

NDIS commissioner, Mr Graeme Head AO, has also announced the appointment of former Federal Court judge, the Hon. Alan Robertson SC, to lead an independent inquiry into the adequacy of the regulation of the supports and services provided to Ms Smith, including regulation in relation to quality and safeguarding pursuant to the functions and powers of the commissioner of the NDIS Commission.

We should allow these investigations to continue without prejudice, however, the legislative amendments for strengthening banning orders were raised in the context of the review of the National Disability Insurance Scheme Act (NDIS Act) and were originally intended to be introduced as a part of the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Full Scheme) Bill 2020. Due to the pandemic, the public consultation and introduction of the bill has been delayed and is not expected to be considered until the spring legislative program.

Given this delay, and our commitment to have these protections in place, the government believes it is important to bring forward the amendments to strengthen the banning order provisions earlier as a standalone bill. This will ensure the NDIS Commission has the strengthened tools it needs to support the safety of NDIS participants as soon as possible.

The NDIS is one of the largest social and economic policy reforms in our history. It is transforming the lives of people with disability right across the country.

As at 31 March this year, there were 364,879 participants in the NDIS (excluding Western Australia). Around 150,000 of those people are receiving supports for the very first time.

All Australian governments are committed to ensuring the safety and wellbeing of NDIS participants. In December 2016, the Council of Australian Governments (COAG) endorsed the NDIS Quality and Safeguarding Framework. The framework was the result of over three years of consultation with people with disability, carers and providers. It sets out a new approach to regulation for the NDIS to protect NDIS participants.

The national framework replaces the separate and disparate quality and safeguard arrangements for disability services in states and territories, with national protections to support the new national disability scheme and participants' access to services under the scheme.

To meet the Commonwealth's responsibilities under the framework, the government took strong, decisive action by establishing an independent, national body—the NDIS Commission—to ensure the quality and safety of NDIS services and to protect and prevent people with disability from experiencing harm.

The NDIS Commission, as the independent national regulator, plays a key role in building confidence in the NDIS through its regulatory and compliance functions including registration of providers, complaints and reportable incidents, oversight of behaviour support, investigation and compliance and its role in developing and implementing nationally consistent NDIS worker screening.

The NDIS Commission has been in operation in NSW and South Australia since 1 July 2018 and all other jurisdictions since 1 July 2019, except Western Australia, which will come under the auspices of the NDIS Commission from 1 December 2020.

As at 31 March 2020, 17,006 NDIS providers were registered with the NDIS Commission. Of those registered, 45 per cent were individuals or sole traders.

As an independent statutory body with integrated functions, it is important the NDIS Commission has robust investigation and regulatory powers, and can take strong action where serious matters arise that affect the safety of NDIS participants including de-registration, banning and civil penalties where appropriate.

The capacity for taking strong regulatory action is essential in ensuring NDIS participants can live lives free from violence, abuse, neglect and exploitation.

This, frankly, is why this bill is so important. It seeks to strengthen the NDIS Commission's banning order provisions to address the limitations of the current provisions under the NDIS Act(2013). The new provisions will help ensure providers and workers who should not be delivering services under the NDIS cannot do so.

Currently, the National Disability Insurance Scheme Act 2013 empowers the NDIS Quality and Safeguards Commissioner to make banning orders.

However, it has become apparent that the provisions under which the NDIS Quality and Safeguards Commissioner may issue banning orders are too narrow.

The circumstances in which banning orders could be applied against a person, either a provider or worker, are those listed in section 73ZN of the NDIS Act. A banning order may be issued where the NDIS Commissioner reasonably believes at least one of the following situations exists:

A banning order may apply generally, to prevent a provider or person from providing any NDIS supports or services, or may be limited to a class of supports or services, or to particular people.

Before issuing a banning order, the commissioner would consider if the action would be reasonable, timely and proportionate in relation to the issue in question, what action has been taken previously, and whether there are more appropriate avenues to deal with the issue.

These and other general provisions will not change.

However, under the current legislation, the commissioner can only apply these provisions when the worker is engaged by a provider that is delivering services under the NDIS.

This means if a worker's engagement ends, such as if a worker is sacked because of the issue under consideration, the NDIS Commissioner cannot issue a banning order to the worker.

Similarly, under current legislation it is unclear, even if a banning order is applied before a worker's engagement ends or the provider they work for leaves the NDIS, that the order stays in force.

Further, the commissioner cannot currently issue a banning order to a person who is not yet involved in the delivery of NDIS services but is unsuitable to be involved in delivering them based on their known record in another similar sector such as aged care or child care. That is, a person who could have effectively been banned from one of these other sectors for reasons relevant to the delivery of NDIS services but the commissioner cannot ban such a person until they start to deliver services under the NDIS.

In short, this bill will strengthen the current banning provisions of the NDIS Act 2013 and address these concerns.

If the commissioner makes a banning order, this amendment will explicitly allow the NDIS Commissioner to use the existing NDIS provider register to publish details of such orders. This will include the order and enough information to identify the provider or worker subject to the order.

The NDIS provider register, which is generally publicly available, may be searched by persons with disability and their representatives to ensure that the providers or workers they are using are not subject to a banning order. This is an important protection.

Similarly, it may be one tool for providers looking to employ workers to help ensure the employees they recruit are safe to work with people with disability and able to work in the NDIS.

Information in the NDIS provider register that is not published will be protected NDIS Commission information and will only be shared and used consistently with the information protection and disclosure provisions in the NDIS Act and the NDIS Commission's legislated functions with the aim of protecting participants and ensuring confidence in the NDIS market for disability services.

Conclusion

The Australian government is committed to a high-quality, sustainable NDIS and effective national quality and safeguards arrangements. The strengthened banning order provisions support the aim of ensuring unsuitable providers and workers cannot provide NDIS services. This is an important part of developing trust in the NDIS market and the providers and workers in the market.

The NDIS provider register will provide timely, accurate access to banning order information for employers and self-managed NDIS participants, helping to ensure they can make an informed judgment about who should work with people with disability.

Our paramount consideration is the right of people with disability to live lives free from abuse, violence, neglect and exploitation. The Morrison government is committed to meeting this objective and this bill is an improvement over the existing banning provisions that will assist with protecting people with disability receiving disability services.

Not only are the changes to banning order provisions an important additional protection for people with disability accessing the NDIS, these changes will also increase confidence in the quality and safety of the NDIS market as well as assist in ensuring the long-term integrity and sustainability of the NDIS.

I commend the bill to the House.

Debate adjourned.

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