On 12 June 2020, the Commonwealth Government proposed amendments to the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) that will strengthen the NDIS Commission’s powers to issue banning orders.

 

These amendments come in the wake of the tragic death of Ms Ann Marie Smith and recognition across all levels of government, that the circumstances which led to her death must never be allowed to happen again. Separately to these amendments, the NDIS Commissioner has announced that an independent inquiry, lead by the Hon Alan Robertson SC, will examine the adequacy of regulation and services provided to Ms Smith, including regulation in relation to quality and safeguarding pursuant to functions and powers of the commissioner of the NDIS Commission.

 

The current framework

Currently, under section 73ZN of the NDIS Act, the NDIS Commissioner has the power to make banning orders against either a provider or a worker, where there are reasonable grounds to believe at least one of the following situations exist:

  • the person has breached, or is likely to breach, the NDIS Act, or has been involved in a breach by another person;
  • the person is not suitable to provide supports and services to a person with a disability;
  • where there is an immediate risk of harm to a person with a disability if a provider continues offering supports and services;
  • the person has been convicted of an offence involving fraud or dishonesty either as a worker or a partner/director of a company who is a registered provider; or
  • the person is insolvent under administration.

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.

 

Changes that are proposed

Under the current legislation, the Commissioner can only make a banning order when the worker is engaged by a provider that is delivering services under the NDIS. This means that if a worker’s engagement ends, such as if a worker is sacked because the issue under consideration, the NDIS Commissioner cannot issue a banning order to the worker. Similarly, it is currently unclear even if a banning order is made before a worker’s engagement ends or the provider they work for leaves the NDIS, whether the order stays in force. In addition to this, the Commission cannot 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. In other words, where a person who has been banned another sector (such as aged care or child care) for conduct that indicates an unacceptable risk to people with disability, a banning order cannot be made against that person until they start to deliver services under the NDIS.

New subsection 73ZN(2A) empowers the NDIS Commissioner to make a banning order where there is a reasonable belief the person is ‘not suitable’ to ‘be involved in the provision of specified supports or services’ and the person has not previously been working in the NDIS.

New subsection 73ZS(5A) allows the NDIS Commissioner to public details of such orders on the NDIS provider register. The NDIS provider register, which is 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 that 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.

The amendments were introduced in Parliament on 12 June 2020.  A copy of the amendment bill can be accessed here. Further amendments to the NDIS Act will be proposed in the National Disability Insurance Scheme Amendment (Participant Service Guarantee and Full Scheme) Bill 2020, however due to the pandemic, public consultation and introduction of the bill has been delayed to the spring sittings of Parliament.  We understand that those amendments follow the Government’s review of the legislation in 2019.

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.

For more information, contact Michael Pagsanjan (info@mpslaw.com.au).