Cth Bill to Improve Protections for at Risk NDIS Participants

Friday 18 June 2021 @ 11.05 a.m. | Legal Research

On 3 June 2021, the National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021 (Cth) (‘the Bill’) was introduced in the House of Representatives. The Bill was introduced by Minister for Regional Health, Regional Communications and Local Government Mark Coulton (‘the Minister’), for Minister for Employment, Workforce, Skills, Small and Family Business Stuart Robert.

The Bill proposes to make various amendments to the National Disability Insurance Scheme Act 2013 (Cth) (‘the NDIS Act’) in order to improve the protections and better support for at risk NDIS participants.

A media release published by Minister for Government Services Linda Reynolds emphasised the Government’s motivation to make these reforms, stating:

“The Morrison Government considers any abuse, neglect or exploitation suffered by any NDIS participant to be abhorrent and is committed to improving the quality and safeguards in place to protect NDIS participants from harm”.

Background: The Robertson Review

In the lead up to the introduction of the Bill, the Government considered several inquiries into the effectiveness of current NDIS safeguards. This was due to recent cases involving the abuse, neglect and exploitation of NDIS participants.

In his second reading speech, the Minister made particular note of the Robertson Review. The Roberston Review was an independent review commissioned after the death of NDIS participant. The NDIS case worker was subsequently charged with manslaughter.

The Robertston Review made 10 recommendations. The Bill proposes reforms in response to some of these recommendations. These amendments are in conjunction with changes that have already been made by the NDIS Commission and the National Disability Insurance Agency (‘the NDIA’). The Minister commented in his second reading speech:

“Importantly, the Robertson Review did not identify significant failings in the way that the NDIS Commission performed its functions. It recognised the harm that has occurred and the importance of taking action not just against those responsible, but to ensure that it cannot happen again”.

Proposed Amendments: Disclosure of Personal Information

The Bill seeks to amend provisions in the NDIS Act regarding sharing of personal information. Currently, there is a very high threshold for the NDIS Commission and the NDIA to meet before disclosing protected information. The NDIS Act provides that disclosure is allowed only when it is “necessary to prevent or lessen a serious threat to an individual’s life, health or safety”.

The Bill seeks to broaden this condition by removing the words “serious” and "necessary”. In his second reading speech, the Minister said that this would ensure that:

“any threat to life, health or safety is sufficient grounds for the recording, use or disclosure of protected information between the NDIS commission and the NDIA”. 

Furthermore, the Bill proposes to allow the NDIS Commission to release protected information to worker screening agencies for quality and safety purposes, and to allow for the publication and maintenance of historical compliance and enforcement action information.

Proposed Amendments: Reportable Incidents

In his second reading speech, the Minister noted that under the current legislation:

“registered NDIS providers are required to notify the NDIS commission of serious incidents such as death and serious injury (including alleged incidents) that occur in connection with the services and supports they provide”.

Following recommendations from the Robertson Review, the Bill seeks to give the NDIS Commission additional scope to expand the definition of reportable incidents and the circumstances surrounding such incidents via their own rules.

Further Amendments

The Bill also proposes to make further amendments, including:

  • allowing the NDIS Commissioner to put certain conditions on approvals granted to quality auditors;
  • ensuring all key personnel are subject to all regulatory action given by the NDIS Commission; and
  • refining the process for registration with the NDIS.

The Minister concluded his second reading speech by stating:

“The government will continue to remember the tragic circumstance of each NDIS participant who has suffered abuse, neglect and exploitation and take action to ensure the safety of participants at risk of harm ... [Should the Bill be assented, it would] strengthen the protections for NDIS participants, including those who are at greater risk of harm, and … strengthen the operational effectiveness of the NDIS Commission”.

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National Disability Insurance Scheme Amendment (Improving Supports for At Risk Participants) Bill 2021 (Cth) and explanatory materials available from TimeBase’s LawOne service.

Media Release: Improving support for NDIS participants at risk of harm (Senator the Hon Linda Reynolds CSC, 3 June 2021)

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