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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(STREAMLINED GOVERNANCE) BILL 2019
REVISED EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for the National Disability Insurance Scheme,
the Hon Stuart Robert MP)
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(STREAMLINED GOVERNANCE) BILL 2019
OUTLINE
The National Disability Insurance Scheme Amendment (Streamlined Governance)
Bill 2019 (Bill) amends the National Disability Insurance Scheme Act 2013 (Act) to
improve the operation of the Act via the introduction of streamlined governance
arrangements.
Schedule 2 requires the National Disability Insurance Agency Chief Executive Officer
('the CEO') or any Agency officer and the NDIS Quality and Safeguards
Commissioner ('the NDIS Commissioner') or any Commission officer served with a
formal notice or summons by a Royal Commission to produce documents or
information, or give evidence, to comply with that requirement, subject only to any
public interest immunity. The production or disclosure, or the giving of evidence will
not be in breach of the confidentiality provisions of the National Disability Insurance
Scheme Act 2013 ('the NDIS Act').
Schedule 1 - Main Amendments
The streamlined governance arrangements at Schedule 1 to the Bill introduce new
requirements for appointments to the Board of the Agency and the Independent
Advisory Council.
The amendments also establish a 28-day requirement for consultations with host
jurisdictions for various matters under the Act that require consultation (with the
ability for host jurisdictions to seek an extension for up to 90 days).
The amendments also re-categorise some of the National Disability Insurance
Scheme rules (NDIS rules), made under section 209 of the Act, to convert some
rules requiring unanimous agreement of the Commonwealth, States and Territories
(Category A) and rules requiring agreement of the Commonwealth and the majority
of States and Territories (Category C), to rules made after consultation with States
and Territories (Category D).
Schedule 2 - Other Amendments
Schedule 2 requires the National Disability Insurance Agency Chief Executive
Officer ('the CEO') or any Agency officer and the NDIS Quality and Safeguards
Commissioner ('the NDIS Commissioner') or any Commission officer served with a
formal notice or summons by a Royal Commission to produce documents or
information, or give evidence, to comply with that requirement, subject only to any
public interest immunity. The production or disclosure, or the giving of evidence will
not be in breach of the confidentiality provisions of the National Disability Insurance
Scheme Act 2013 ('the NDIS Act').
1
FINANCIAL IMPACT STATEMENT
MEASURE FINANCIAL IMPACT OVER THE FORWARD
ESTIMATES
Schedule 1 Nil
Schedule 2 Nil
STATEMENTS OF COMPATIBILITY WITH HUMAN RIGHTS
The statements of compatibility with human rights appear at the end of this
explanatory memorandum.
2
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(STREAMLINED GOVERNANCE) BILL 2019
NOTES ON CLAUSES
Abbreviations and Acronyms used in this explanatory memorandum
Act means the National Disability Insurance Scheme Act 2013;
Agency means the National Disability Insurance Agency (also known as the
National Disability Insurance Scheme Launch Transition Agency);
NDIS means the National Disability Insurance Scheme, as defined in
section 9 of the NDIS Act;
NDIS rules means the National Disability Insurance Scheme rules made
under section 209 of the Act;
Clause 1 sets out how the new Act is to be cited - that is, as the National Disability
Insurance Scheme Amendment (Streamlined Governance) Act 2019.
Clause 2 provides a table setting out the commencement date of the various
sections in, and Schedule to, the new Act.
Clause 3 provides that legislation that is specified in each Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule has effect
according to its terms.
1
Schedule 1 - Amendments
Schedule 1 - Main Amendments
Summary
The streamlined governance arrangements at Schedule 1 to the Bill introduce new
requirements for appointments to the Board of the Agency and the Independent
Advisory Council.
The amendments also establish a 28-day requirement for consultations with host
jurisdictions for various matters under the Act that require consultation (with the
ability for host jurisdictions to seek an extension for up to 90 days).
The amendments also re-categorise some of the NDIS rules, made under
section 209 of the Act, to convert some Category A and Category C NDIS rules to
Category D NDIS rules.
Background
In April 2018, the Council of Australian Governments' (COAG) Disability Reform
Council noted the Commonwealth's intention to introduce streamlined governance
arrangements under the Act.
Streamlined governance arrangements will help enhance delivery of the NDIS for the
Commonwealth and host jurisdictions. Such changes build on the lessons learnt
from the trial and transition period and will ensure governance at full Scheme is
robust, agile and sustainable. These arrangements are included in the new
intergovernmental agreements for full Scheme, which should be in place for all
jurisdictions, except Queensland and Western Australia, on 1 July 2019.
The amendments made by Schedule 1 commence on the day after Royal Assent.
All State and Territory governments have been consulted on the amendments in this
Schedule.
Explanation of the changes
National Disability Insurance Scheme Act 2013
Item 1 inserts a new definition for host jurisdiction Minister at section 9. "Host
jurisdiction Minister", for a host jurisdiction (as defined at section 10) means a
Minister of the host jurisdiction who is a member of the Ministerial Council.
"Ministerial Council" is also defined at section 9.
Items 2, 3, 4, 7, 8, 10, 14, 16, 17, 24 and 25 insert new subsections to introduce a
consultation process for the Minister to seek the agreement of host jurisdiction
Ministers to the making of certain instruments, the giving of certain directions and
statements, the termination of the appointment of a Board member other than the
Chair, the terms and conditions of Board members, the making of certain
delegations. The new subsections, and the matters in relation to which the Minister
is required to seek the host jurisdictions' agreement, are as follows:
2
Schedule 1 - Amendments
item 2, subsections 120(4A), (4B) and (4C): a process for seeking
agreement to make an instrument prescribing things that the Agency does in
the performance of its functions for which it may charge fees, and the
amount, or method of working out the amount, of those fees;
item 3, subsections 121(3A), (3B) and (3C): a process for seeking
agreement to give, by legislative instrument, a direction to the Agency about
the performance of its functions;
item 4, subsections 125(3A), (3B) and (3C): a process for seeking
agreement to give the Board a written statement setting out strategic
guidance to the Agency;
item 7, subsections 127(4), (4A), (4B), (4C) and (4D): a process for seeking
agreement to appoint a Board member other than the Chair;
item 8, subsections 134(4A), (4B) and (4C): a process for seeking
agreement to terminate the appointment of a Board member other than the
Chair;
item 10, subsections 135(3), (4) and (5): a process for seeking agreement to
the terms and conditions on which a Board member holds office in relation to
matters not covered by the Act;
item 14, subsections 172(7), (8) and (9): a process for seeking agreement to
prescribe, by legislative instrument, particular information or analysis that
must be included in the annual report prepared by the Board members;
item 16, subsection 174(4A), (4B) and (4C): a process for seeking
agreement to prescribe, by legislative instrument, particular information that
must be included in the quarterly report on the operations of the Agency;
item 17, subsections 201(2A), (2B) and (2C): a process for seeking
agreement to delegate the Minister's powers under section 209 to the CEO;
item 24, subsections 209(8A), (8B) and (8C): a process for seeking
agreement to make NDIS rules; and
item 25, subsections 210(3), (4) and (5): a process for seeking agreement for
the Governor-General to make regulations.
The above items, other than items 7, 8, 14, 16 and 24 also insert relevant
subheadings into the respective sections to delineate between the new provisions
about the process for seeking agreement and other existing provisions.
Item 7 also repeals and replaces subsection 127(4) to replace "States and
Territories" with "host jurisdictions" because all States and Territories have now been
prescribed as host jurisdictions under section 10. It also inserts a new requirement
for the Minister to be satisfied that the Commonwealth, and a majority of the group
consisting of the Commonwealth and the host jurisdictions (rather than the
Commonwealth and all States and Territories) support the appointment of a Board
member other than the Chair. This aligns subsection 127(4) with the requirement at
subsection 134(4), which is the equivalent provision for termination of the
appointment of a Board member other than the Chair.
3
Schedule 1 - Amendments
The new process for seeking agreement is as follows. The Minister is to give a
notice (the original notice) to one host jurisdiction Minister for each host jurisdiction
seeking the agreement of that host jurisdiction to the relevant course of action (that
is, the making of an instrument, giving of a direction or statement, setting of terms
and conditions, making of rules or regulations), and requesting that agreement be
given before the end of 28 days beginning on the day the notice is given. The above
items (except for items 7 and 8, which relates to a proposal to appoint, or terminate
the appointment of, a Board member other than the Chair) also insert a requirement
for the Minister to provide a copy of the proposed instrument, direction, statement,
terms and conditions, rules or regulations (as the case may be) to the host
jurisdiction Minister when issuing the original notice to the host jurisdiction Minister.
Host jurisdiction Ministers are able to give a notice in writing to the Minister, within
the initial 28-day period, requesting a longer period within which to agree to the
course of action. If such a request is made, the host jurisdiction may give their
agreement before the end of 90 days beginning on the day the original notice was
given. If no host jurisdiction Minister has informed the Minister whether that host
jurisdiction agrees to the proposed course of action immediately before the end of
the 90-day period, the host jurisdiction is taken to have agreed to the course of
action.
If, immediately before the end of the initial 28-day period, no host jurisdiction Minister
for a host jurisdiction has made a request for extended time to consider the request,
and no host jurisdiction Minister for a host jurisdiction has informed the Minister
whether that host jurisdiction agrees to the proposed course of action, then at the
end of the 28-day period, the host jurisdiction is taken to have agreed to the course
of action.
This process for seeking agreement gives host jurisdictions adequate time to
consider requests for agreement and seek extensions up to 90 days where the initial
28 days is not sufficient, while also balancing the Minister's need to proceed with a
course of action where a host jurisdiction does not respond to a request. The 28 day
process has been implemented administratively since it was agreed by the Council
of Australian Government's Disability Reform Council in November 2017, where all
jurisdictions agreed to provide responses to requests for agreement within 28 days,
with no response taken as agreement. The policy objective is to ensure the Minister
is not precluded from making certain decisions and taking certain courses of action
where host jurisdictions do not indicate their agreement (or otherwise) in a prompt
manner. The process for seeking agreement also takes into account the host
jurisdiction's need to seek a longer period in instances where, for example, there is a
State or Territory election and caretaker period preventing them from agreeing to a
course of action, or the matter in question is too complex to consider in a short
timeframe.
4
Schedule 1 - Amendments
Subsection 127(4D) allows the Minister to appoint a person as a Board member,
other than the Chair, without the support of a majority of the group consisting of the
Commonwealth and the host jurisdictions. The Minister must wait until the end of the
period of 90 days beginning on the day the first notice was given under subsection
127(4A) in relation to that appointment, before exercising this power. The Minister
may choose to use this 90 day period to consider the positions of the host
jurisdictions and negotiate alternative possible appointments or arrangements if
majority agreement was not reached. The Minister may also choose to seek
agreement of host jurisdictions under subsection 127(4) again by giving new notices,
which will start a new period.
Item 5 inserts a new subheading at subsection 125(5), which is consequential to the
amendments made by item 4.
Item 6 replaces the words "States and Territories" with "host jurisdictions" in
subsection 127(3) as all States and Territories have now been prescribed as host
jurisdictions under section 10.
Item 9 is a consequential amendment to the amendment at item 8. It also corrects
an error in subsection 134(5) as a termination of an appointment of a Board Member
(not only the Chair) under subsection 134(3) or (4) is also subject to section 30 of the
Public Governance, Performance and Accountability Act 2013.
Items 11, 12 and 13 insert new requirements about consulting the host jurisdictions
in relation to appointing and terminating the appointment of members of the Advisory
Council, and determining the terms and conditions upon which members of the
Advisory Council hold office, respectively.
Item 11 repeals subsections 147(2) to (3A) and inserts new subsection 147(2)
requiring the Minister to consult host jurisdictions about the appointment of each
member of the Advisory Council. The repealed subsections impose requirements on
the Minister to seek the support of all host jurisdictions before appointing a member
of the Advisory Council other than the Principal Member (while the appointment of
the Principal Member requires consultation only). Subsection 147(3A), also being
repealed by item 11, enables the Minister to appoint a member of the Advisory
Council if the Minister has sought the support of a State or Territory, 90 days have
passed since seeking that support, and the Minister is satisfied that it is not possible
to make the appointment with the support of the relevant State or Territory (or it is
not known whether the appointment can be so made). These requirements prevent
the Minister from being able to exercise the Minister's powers to appoint members of
the Advisory Council and can cause unreasonable delays in making such
appointments. The new requirement to consult all host jurisdictions gives all host
jurisdictions the opportunity to comment on a proposed appointment while preserving
the Minister's ability to exercise the power to make appointments.
5
Schedule 1 - Amendments
Item 12 repeals subsections 155(3) and (4) and inserts new subsection 155(3)
requiring the Minister to consult host jurisdictions about the termination of the
appointment of a member of the Advisory Council. The repealed subsections
impose requirements on the Minister to seek the support of all host jurisdictions
before terminating the appointment of a member of the Advisory Council other than
the Principal Member (while the termination of the appointment of the Principal
Member requires consultation only). This requirement prevents the Minister from
being able to exercise the Minister's powers to terminate the appointment of
members of the Advisory Council and can cause unreasonable delays in making
such appointments. The new requirement to consult all host jurisdictions gives all
host jurisdictions the opportunity to comment on a proposed termination while
preserving the Minister's ability to exercise the power to terminate appointments.
Item 13 repeals and replaces subsection 156(2) requiring the Minister to consult host
jurisdictions before determining the terms and conditions (if any), in relation to
matters not covered by the Act, on which a member of the Advisory Council holds
office. Current subsection 156(2) imposes a requirement on the Minister to be
satisfied that the Commonwealth and a majority of host jurisdictions agree to the
terms and conditions before determining such terms and conditions. This
requirement prevents the Minister from being able to exercise the Minister's power to
determine terms and conditions on which members of the Advisory Council hold
office and can cause unreasonable delays in determining such terms and conditions.
The new requirement to consult all host jurisdictions gives all host jurisdictions the
opportunity to comment on proposed terms and conditions while preserving the
Minister's ability to exercise the power to determine those terms and conditions.
Item 15 is a consequential amendment to the amendment at item 1.
Item 18 inserts a new subheading at subsection 201(4), which is consequential to
the amendments made by item 17.
Items 19, 20, 21, 22 and 23 amend the categories assigned to certain NDIS rules.
Item 19 removes rules made for the purposes of sections 66 and 67 from the list of
Category A NDIS rules in the table at subsection 209(8). Section 66 is not a
rule-making power in and of itself and therefore does not need to appear in the table
at subsection 209(8). Item 23 inserts rules made for the purposes of section 67 into
the Category D NDIS rules as paragraph (ca) in table item 4 at subsection 209(8).
Item 21 removes rules made for the purposes of section 45 from the list of
Category C NDIS rules, leaving rules made for the purposes of subsection 32A(4)
and section 204 as the only Category C NDIS rules. Item 20 is a consequential
amendment as a result of item 21. Item 22 inserts rules made for the purposes of
section 45 into the list of Category D NDIS rules as paragraph (ba) in table item 4 at
subsection 209(8).
6
Schedule 1 - Amendments
The Minister must not make Category D NDIS rules unless each host jurisdiction has
been consulted in relation to the making of the rules. These amendments balance
the Minister's need to be able to exercise the power to make NDIS rules with the
host jurisdictions' interest in being consulted in relation to their content and their
ability to comment on any proposed NDIS rules. The particular NDIS rules to be
moved to Category D (rules made for the purposes of sections 45 and 67) relate to
matters that do not directly affect the host jurisdictions or participant plans.
Section 45 provides for NDIS rules in relation to the payment of NDIS
amounts, for example, in relation to the payment of those amounts into a
nominated bank account.
Section 67 provides that the NDIS rules may make provision for and in
relation to the CEO's power to disclose information under paragraph 66(1)(a)
or subparagraphs 66(1)(b)(i) or (v).
These are all administrative matters between governments only and will not have
any impact on access to the NDIS or participant plans. Therefore, it is not considered
necessary for host jurisdictions to agree to the content of NDIS rules on these
matters before the Minister's rule-making powers can be exercised.
Item 26 contains application provisions. Sub-items 26(1), (2), (3), (4), (5), (6), (10),
(11), (12) and (13) provide that the amendments of sections 120, 121, 125, 127, 134,
135, 172, 174, 201, 209 and 210, respectively, apply in relation to instruments made,
directions or statements given, appointments and terminations made, terms and
conditions determined, instruments of delegations made, rules made or regulations
made (as the case may be) on or after the commencement of item 26. These
amendments set out the new process for seeking host jurisdictions' agreement to
certain matters.
Sub-items 26(7), (8) and (9) provide that the amendments of sections 147, 155
and 156, respectively, apply in relation to appointments or terminations made, or
terms and conditions determined (as the case may be) on or after the
commencement of item 26. These amendments provide for the Minister to consult
host jurisdictions about matters relating to the members of the Advisory Council.
7
Schedule 1 - Amendments
Schedule 2 - Other Amendments
Summary
Schedule 2 requires the National Disability Insurance Agency ('the NDIA') Chief
Executive Officer ('the CEO') or any Agency officer, and the NDIS Quality and
Safeguards Commissioner ('the NDIS Commissioner') or any Commission officer,
served with a formal notice or summons by a Royal Commission, to produce
documents or information, or give evidence to comply with that requirement. This is
subject only to any public interest immunity or similar. The CEO and the NDIS
Commissioner (and their agency officers) cannot ordinarily be compelled to produce
a document or disclose any matter or thing to a Court, tribunal, authority or person
that has power to require the production of documents or the answering of questions
(section 67G). It would be possible for an agency head to agree to provide such
information under existing section 66 or section 67E, but this cannot be compelled. It
is inappropriate that a Royal Commission, particularly a Royal Commission inquiring
into Violence, Abuse, Neglect and Exploitation of People with Disability, only have
access to information subject to the agreement of an NDIS agency head. In order to
avoid delay and increase public confidence in the conduct of the Royal Commission,
these amendments will result in any information the Royal Commission formally
seeks from the CEO or the NDIS Quality and Safeguards Commissioner being
required to be provided to the Royal Commission.
This is subject only to any claims of public interest immunity or similar. Any person
compelled by a Royal Commission to produce documents or give evidence may
decline to provide that document or evidence on the basis they have a reasonable
excuse for not providing that information (see generally section 3 of the Royal
Commissions Act 1902). Examples of reasonable excuse are parliamentary
privilege, legal professional privilege or other public interest immunity. Maintaining
this exception places the CEO, the NDIS Commissioner and any of their officers in
the same position as any other person served with a requirement by a Royal
Commission.
In addition to the limitations on compulsion, the production or disclosure of protected
information would generally be subject to the confidentiality provisions of the NDIS
Act. 'Protected Agency information' is information about a person that is or was held
in the records of the NDIA. 'Protected Commission information' is information about
a person that is or was held in the records of the NDIS Commission. This information
may be personal to both participants in the NDIS and to NDIS service providers, and
generally may only be recorded, used or disclosed in accordance with Part 2 of
Chapter 4 of the NDIS Act, relating to 'privacy'.
8
Schedule 1 - Amendments
Further amendments will ensure that in giving such information to the Royal
Commission, the CEO and NDIS Commissioner (or their officers) will not breach the
confidentiality provisions of the NDIS Act. Once disclosed to the Royal Commission,
the Royal Commission's use and disclosure of the information for the purposes of
undertaking its inquiry under the Royal Commissions Act 1902 will not breach the
confidentiality provisions of the NDIS Act. The Royal Commission will determine its
own processes for handling information that is personal and sensitive. However,
where it needs to use this information to effectively conduct its inquiry and make
recommendations, or to allow others to consider contraventions of laws, it will be
able to do so.
Explanation of the changes
Item 1 of Schedule 2 inserts at the end of section 66, new subsection 66(4). Section
66 provides circumstances in which the CEO may disclose protected Agency
information without this being a breach of the confidentiality provisions. Subsection
66(4) provides that if the CEO or an Agency officer is served with a summons or
notice, or is otherwise subject to a requirement under the Royal Commission Act
1902, and in order to comply with the summons, notice or requirement, the CEO or
Agency officer would be required to disclose information that is protected Agency
information, then the CEO or Agency officer must disclose that information. This is
subject only to the Royal Commissions Act 1902, which then allows reliance upon
reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is
required despite section 62, which ordinarily renders disclosure an offence, and
section 67G, which prevents such a requirement being imposed in other
circumstances.
The information is taken to have been disclosed for the purposes of the Royal
Commissions Act 1902 and for the purposes of the Royal Commission. As a result of
subparagraph 60(2)(d)(ii), the Royal Commission may use the information for the
purpose for which the information was disclosed. Any use outside that purpose
would not come within the exception.
Item 2 of Schedule 2 inserts at the end of section 67E new subsection 67E(4).
Subsection 67E(4) provides that if the NDIS Commissioner or a Commission officer
is served with a summons or notice, or is otherwise subject to a requirement under
the Royal Commission Act 1902, and in order to comply with the summons, notice or
requirement, the NDIS Commissioner or Commission officer would be required to
disclose information that is protected Agency information, then the NDIS
Commissioner or Commission officer must disclose that information. This is subject
only to the Royal Commissions Act 1902, which then allows reliance upon
reasonable excuse for the purposes of that Act to resist disclosure. The disclosure is
required despite section 67B, which ordinarily renders disclosure an offence, and
section 67G, which prevents such a requirement being imposed in other
circumstances.
9
Schedule 1 - Amendments
The information is taken to have been disclosed for the purposes of the Royal
Commissions Act 1902 and for the purposes of the Royal Commission. As a result of
subparagraph 67A(1)(d)(ii), the Royal Commission may use the information for the
purpose for which the information was disclosed. Any use outside those purposes
would not come within the exception.
Item 3 inserts into section 67G after the words "except for the purposes of this Act",
the words "or the Royal Commissions Act 1902". This provides an exception to the
general protection of certain documents or information from being required to be
produced to a court, and covers both information that is protected information, and
information that is not. It will allow a summons or notice by a Royal Commission to
compel compliance by the person to whom it is directed within the NDIS, particularly
for information that is not protected information and so not covered by the
amendments above.
Item 4 provides for the application of the amendments. The amendments of
section 66 and 67E apply in relation to a summons or notice served, or a
requirement made, on or after the commencement of this item (whether the
protected Agency information or protected Commission information came into
existence before, on or after that commencement).
10
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
SCHEDULE 1 - NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(STREAMLINED GOVERNANCE) BILL 2019
This Schedule is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The Schedule amends the National Disability Insurance Scheme Act 2013 (Act) to
enhance the delivery of the National Disability Insurance Scheme (NDIS) for the
Commonwealth and host jurisdictions.
The streamlined governance arrangements at Schedule 1 to the Bill introduce new
requirements for appointments to the Board of the National Disability Insurance
Agency (NDIA) and the Independent Advisory Council. The amendments also
establish a 28-day requirement for consultations with host jurisdictions for various
matters under the Act that require consultation and re-categorises some of the
National Disability Insurance Scheme rules (NDIS rules), made under section 209 of
the Act, to convert some Category A and C NDIS rules to Category D NDIS rules.
The provisions in Schedule 1 only relate to matters between governments and do not
have any impact on people's access to the NDIS or the supports available to NDIS
participants.
Human rights implications
This Schedule does not engage any of the applicable rights or freedoms outlined in
the Human Rights (Parliamentary Scrutiny) Act 2011, such as encompassed in the
International Covenant on Civil and Political Rights or the Convention on the Rights
of Persons with Disabilities.
Conclusion
This Schedule is compatible with human rights as it does not raise any human rights
issues.
11
SCHEDULE 2 - NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(STREAMLINED GOVERNANCE) BILL 2019
Schedule 2 is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Schedule
Schedule 2 requires the National Disability Insurance Agency ('the NDIA') Chief
Executive Officer ('the CEO') or any Agency officer, and the NDIS Quality and
Safeguards Commissioner ('the NDIS Commissioner') or any Commission officer,
served with a formal notice or summons by a Royal Commission, to produce
documents or information, or give evidence to comply with that requirement. This is
subject only to any public interest immunity or similar. The CEO and the NDIS
Commissioner (or their delegates) cannot ordinarily be compelled to produce a
document or disclose any matter or thing to a Court, tribunal, authority or person that
has power to require the production of documents or the answering of questions
(section 67G). It would be possible for an agency head to agree to provide such
information, but this cannot be compelled. It is inappropriate that a Royal
Commission, particularly a Royal Commission inquiring into Violence, Abuse,
Neglect and Exploitation of People with Disability, only have access to information
subject to the agreement of an NDIS agency head. In order to avoid delay and
increase public confidence in the conduct of the Royal Commission, these
amendments will result in any information the Royal Commission formally seeks from
the CEO or the NDIS Quality and Safeguards Commissioner being required to be
provided to the Royal Commission.
In addition to the limitations on compulsion, the production or disclosure of protected
information would generally be subject to the confidentiality provisions of the NDIS
Act. 'Protected Agency information' is information about a person that is or was held
in the records of the NDIA. 'Protected Commission information' is information about
a person that is or was held in the records of the NDIS Commission. This
information may be personal to both participants in the NDIS and to NDIS service
providers, and generally may only be recorded, used or disclosed in accordance with
Part 2 of Chapter 4 of the NDIS Act, relating to 'privacy'.
Further amendments will ensure that in giving such information to the Royal
Commission, the CEO and NDIS Commissioner (and their agency officers) will not
breach the confidentiality provisions of the NDIS Act. Once disclosed to the Royal
Commission, the Royal Commission's use and disclosure of the information for the
purposes of undertaking its inquiry under the Royal Commissions Act 1902 will not
breach the confidentiality provisions of the NDIS Act. The Royal Commission will
determine its own processes for handling information that is personal and sensitive.
However, where it needs to use this information to effectively conduct its inquiry and
make recommendations, or to allow others to consider contraventions of laws, it will
be able to do so.
12
Human rights implications
Schedule 2 to this Bill engages the following rights under international human rights
law:
the rights of people with disabilities, especially Article 16 of the Convention on the
Rights of Persons with Disabilities (CRPD);
the right to privacy in Article 17 of the International Covenant on Civil and Political
Rights (ICCPR).
Rights of people with disability - Article 16 of the CRPD
Article 16 of the CRPD requires that States Parties take measures to protect persons
with disabilities from all forms of exploitation, violence and abuse.
Schedule 2 to this Bill has been developed to ensure the credibility and effectiveness
of the Royal Commission into Violence, Abuse, Neglect and Exploitation of People
with Disability (Disability Royal Commission).
The Disability Royal Commission is required to inquire into what governments,
institutions and the community should do to prevent, and better protect, people with
disability from experiencing violence, abuse, neglect and exploitation, having regard
to the extent of violence, abuse, neglect and exploitation experienced by people with
disability in all settings and contexts.
In doing so, the Disability Royal Commission is required to consider "the need to
establish mechanisms to facilitate the timely communication of information, or the
furnishing of evidence, documents or things, in accordance with section 6P of the
Royal Commissions Act 1902 or any other relevant law"
By ensuring that the Disability Royal Commission has clear legislated power to
compel the NDIA and the NDIS Commission to produce or give evidence,
Schedule 2 to this Bill supports the effective functioning of the Disability Royal
Commission in taking measures to protect persons with disabilities from all forms of
exploitation, violence and abuse.
Right to privacy - Article 17 of the ICCPR
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy. The right to privacy includes respect for
informational privacy, including in respect of storing, using and sharing private
information and the right to control the dissemination of private information. For
interference with privacy not to be arbitrary, it must be in accordance with the
provisions, aims and objectives of the ICCPR and should be reasonable in the
particular circumstances. Reasonableness in this context incorporates notions of
proportionality to the end sought and necessity in the circumstances.
13
Schedule 2 to this Bill limits the existing privacy provisions of the NDIS Act by
compelling protected information, including information about a person, to be
provided to the Disability Royal Commission.
Schedule 2 to this Bill is a permissible limitation of Article 17 of the ICCPR because it
meets the following test:
a) Legitimate objective: As outlined above, the purpose of Schedule 2 to this Bill
is to support the Disability Royal Commission and in doing so, promote the
rights of People with Disability, in particular Article 16 of the CRPD.
b) Rational connection: By facilitating the provision of information to the Disability
Royal Commission, Schedule 2 to this Bill will help to ensure that the
Disability Royal Commission has uncontested access to the information held
by the NDIA and the NDIS Commission. This will ensure that the Disability
Royal Commission can pursue matters, make decisions and prepare
recommendations based on a correct and complete understanding of the facts
available.
c) Reasonable, necessary and proportionate: Although Schedule 2 limits Article
17 of the ICCPR, it does so only in relation to formal notices issued by Royal
Commissions. In carrying out its functions, the Disability Royal Commission is
subject to the Royal Commissions Act 1902, including Part 2, Section 6D(3),
which gives a Royal Commission the power to direct that any evidence,
document, or information shall not be published, or shall be published in such
manner as the Royal Commission specifies. As such, the Royal Commission
is able to make an equivalent determination to the NDIS Commission or the
NDIA that particular protected information should not be published, or should
be published with redactions. Schedule 2 to the Bill is reasonable and
proportionate because the information which will be disclosed to the Royal
Commission will be protected by a discretionary power similar to the power
which is being limited.
In addition, any person compelled by a Royal Commission to produce
documents or give evidence may decline to provide that document or
evidence on the basis they have a reasonable excuse (such as parliamentary
privilege, legal professional privilege or other public interest immunity). This
ensures that information held by the NDIA or the NDIS Commission is in the
same position as information held by any other agency served with a
requirement by a Royal Commission. This ensures the limitation of Article 17
is proportionate.
During the consultation on the Terms of Reference for the Disability Royal
Commission, clear and consistent feedback was that the Royal Commission
should consider 'all settings and contexts'. There is a clear expectation that
the Royal Commission should have the legislative power to compel the NDIA
and the NDIS Commission to provide information. This further underscores
that Schedule 2 to the Bill is reasonable and necessary.
14
Statement[s] of compatibility with human rights
Conclusion
Schedule 2 to the Bill advances the protection of the rights of people with disability in
Australia consistent with the CRPD by supporting the Disability Royal Commission to
carry out the functions outlined in its Letters Patent. In particular, the Disability Royal
Commission will work to expose and prevent violence, abuse, neglect and abuse in
the disability sector.
To the extent Schedule 2 to the Bill limits the right to privacy under Article 17 of the
ICCPR, it is a permissible limitation. It does so only to the extent necessary to
support the Disability Royal Commission in its legitimate purpose, or any Royal
Commission with a legitimate interest in this information, and with the knowledge that
protected information retains the same protections when held by the Disability Royal
Commission.
[Circulated by the authority of the Minister for the National Disability Insurance
Scheme, the Hon Stuart Robert MP]
15
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