National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017
No. 131, 2017
An Act to amend the National Disability Insurance Scheme Act 2013, and for related purposes
National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017
No. 131, 2017
An Act to amend the National Disability Insurance Scheme Act 2013, and for related purposes
Contents
2 Commencement
3 Schedules
Schedule 1—NDIS Quality and Safeguards Commission
Part 1—Amendments
National Disability Insurance Scheme Act 2013
Part 2—Transitional rules
National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017
No. 131, 2017
An Act to amend the National Disability Insurance Scheme Act 2013, and for related purposes
[Assented to 13 December 2017]
The Parliament of Australia enacts:
This Act is the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017.
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information | ||
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 13 December 2017 |
2. Schedule 1 | 1 July 2018. | 1 July 2018 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—NDIS Quality and Safeguards Commission
National Disability Insurance Scheme Act 2013
1 After paragraph 3(1)(g)
Insert:
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
2 At the end of subsection 3(2)
Insert:
; and (c) establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.
3 Subsection 4(9)
After “the Agency”, insert “and the Commission”.
4 Subsection 4(17)
After “the CEO”, insert “, the Commissioner”.
5 Section 8
After:
(e) provisions about the treatment of compensation.
insert:
This Act also provides for the regulation of persons and entities who provide supports and services to people with disability under the National Disability Insurance Scheme. It also regulates supports and services provided outside the National Disability Insurance Scheme in certain circumstances.
Depending on where a person with disability lives, he or she may receive supports or services from registered providers of supports (Part 3 of Chapter 4) or from registered NDIS providers (Part 3A of Chapter 4). Supports and services may also be received from providers who are not registered.
6 Section 8
After:
(d) provides for reporting and financial matters.
insert:
The NDIS Quality and Safeguards Commission and the office of the NDIS Quality and Safeguards Commissioner are also established by this Act (Chapter 6A).
The functions of the Commissioner include:
(a) functions relating to the quality and safety of services and supports provided to people with disability; and
(b) registering and overseeing the operation of NDIS providers; and
(c) managing and resolving complaints about NDIS providers; and
(d) providing leadership in relation to behaviour supports.
7 Section 9
Insert:
Agency officer means:
(a) a member of the staff of the Agency under section 169; or
(b) a person assisting the Agency under section 170.
approved quality auditor means a person or body approved by the Commissioner under section 73U.
banning order means an order made under section 73ZN.
behaviour support function has the meaning given by section 181H.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
Commission means the NDIS Quality and Safeguards Commission established by section 181A.
Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission referred to in section 181C.
Commission officer means:
(a) a member of the staff of the Commission under section 181U; or
(b) a person assisting the Commissioner under section 181W.
complaints functions has the meaning given by section 181G.
compliance notice means a notice given under section 73ZM.
core functions has the meaning given by section 181E.
decision‑maker for a reviewable decision means:
(a) for a reviewable decision referred to in column 1 of the table in subsection 99(1)—the person referred to in column 3 of that table in relation to that decision; or
(b) for a reviewable decision specified in the National Disability Insurance Scheme rules for the purposes of subsection 99(2)—the person specified in the rules as the decision‑maker for that decision.
independent advocate, in relation to a person with disability, means a person who:
(a) is independent of the Agency, the Commission and any NDIS providers providing supports or services to the person with disability; and
(b) provides independent advocacy for the person with disability, to assist the person with disability to exercise choice and control and to have their voice heard in matters that affect them; and
(c) acts at the direction of the person with disability, reflecting the person with disability’s expressed wishes, will, preferences and rights; and
(d) is free of relevant conflicts of interest.
key personnel has the meaning given by section 11A.
NDIS Code of Conduct means the National Disability Insurance Scheme rules made for the purposes of section 73V.
NDIS Practice Standards means the National Disability Insurance Scheme rules made for the purposes of section 73T.
NDIS provider means:
(a) a person (other than the Agency) who receives:
(i) funding under the arrangements set out in Chapter 2; or
(ii) NDIS amounts (other than as a participant); or
(b) a person or entity:
(i) who provides supports or services to people with disability other than under the National Disability Insurance Scheme; and
(ii) who is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph.
NDIS Provider Register means the register maintained under section 73ZS.
8 Section 9 (definition of officer)
Repeal the definition.
9 Section 9
Insert:
otherwise engaged includes engaged on a voluntary basis.
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
participating jurisdiction has the meaning given by section 10A.
protected Agency information means:
(a) information about a person that is or was held in the records of the Agency; or
(b) information to the effect that there is no information about a person held in the records of the Agency.
protected Commission information means:
(a) information about a person that is or was held in the records of the Commission; or
(b) information to the effect that there is no information about a person held in the records of the Commission.
10 Section 9 (definition of protected information)
Repeal the definition.
11 Section 9
Insert:
registered means registered under section 73E.
registered NDIS provider means a person or entity who is registered under section 73E.
12 Section 9 (definition of registered plan management provider)
Repeal the definition, substitute:
registered plan management provider means:
(a) for a provider providing supports to a participant in a participating jurisdiction—an NDIS provider who is registered to manage the funding for supports under plans as mentioned in paragraph 73E(2)(a); or
(b) otherwise—a registered provider of supports who is approved in relation to managing the funding for supports under plans as mentioned in paragraph 70(1)(a).
13 Section 9
Insert:
registration and reportable incident functions has the meaning given by section 181F.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
reportable incident has the meaning given by subsections 73Z(4) and (5).
restrictive practice means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.
14 Section 9 (definition of reviewable decision)
Repeal the definition, substitute:
reviewable decision has the meaning given by subsections 99(1) and (2).
15 After section 10
Insert:
10A Definition of participating jurisdiction
The Minister may, by legislative instrument, specify that a host jurisdiction is a participating jurisdiction, with the agreement of that host jurisdiction.
Note: Section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument (see subsection 44(1) of that Act).
16 At the end of Part 4 of Chapter 1
Add:
11A Definition of key personnel
(1) Each of the following is one of the key personnel of a person or entity:
(a) a member of the group of persons who is responsible for the executive decisions of the person or entity;
(b) any other person who has authority or responsibility for (or significant influence over) planning, directing or controlling the activities of the person or entity.
(2) Without limiting paragraph (1)(a), a reference in that paragraph to a person who is responsible for the executive decisions of a person or entity includes:
(a) if the person or entity is a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001—a director of the body corporate for the purposes of that Act; and
(b) in any other case—a member of the person’s or entity’s governing body.
17 Subsection 33(6)
Repeal the subsection, substitute:
(6) To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by:
(a) for supports provided to a participant in a participating jurisdiction—a registered NDIS provider; or
(b) otherwise—a registered provider of supports.
18 Section 49 (note 2)
Omit “paragraph 99(d)”, substitute “subsection 99(1)”.
19 Paragraph 54(2)(d)
Omit “officer”, substitute “Agency officer”.
20 Section 55 (heading)
Repeal the heading, substitute:
21 After section 55
Insert:
(1) If the Commissioner reasonably believes that a person, other than a prospective participant or a person receiving supports or services from an NDIS provider, has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the Commissioner may require the person to give the information, or produce the document, to the Commissioner.
(2) The matters are as follows:
(a) whether an NDIS provider is contravening subsection 73B(2) (requirement to be a registered NDIS provider);
(b) whether a person applying for registration under subsection 73E(1) satisfies the requirements mentioned in that subsection;
(c) whether a registered NDIS provider is meeting the conditions of registration mentioned in subsection 73F(1);
(d) whether an NDIS provider, or a person employed or otherwise engaged by an NDIS provider, is complying with the requirements of the NDIS Code of Conduct;
(e) if an NDIS provider, or a person employed or otherwise engaged by an NDIS provider, is subject to a banning order—whether the person is providing supports or services in contravention of the order;
(f) the functions of the Commissioner.
22 Subsection 56(1)
After “section 55”, insert “or 55A”.
23 Paragraph 56(2)(c)
After “Agency”, insert “or Commissioner”.
24 Paragraph 56(2)(d)
Repeal the paragraph, substitute:
(d) if the notice is given by the CEO—the Agency officer to whom the information is to be given or the document is to be produced; and
(da) if the notice is given by the Commissioner—the Commission officer to whom the information is to be given or the document is to be produced; and
25 Subsections 56(4) and (5)
Repeal the subsections, substitute:
(4) If the notice is given by the CEO:
(a) the notice may require the person to give the information by appearing before a specified Agency officer to answer questions; and
(b) if paragraph (a) applies—the notice must specify a time and place at which the person is to appear, which must be at least 14 days after the notice is given.
(5) If the notice is given by the Commissioner:
(a) the notice may require the person to give the information by appearing before a specified Commission officer to answer questions; and
(b) if paragraph (a) applies—the notice must specify a time and place at which the person is to appear, which must be at least 14 days after the notice is given.
26 Subsection 57(1)
After “section 55”, insert “or 55A”.
27 Subsections 58(1) and (2)
Omit “or an officer”, substitute “, an Agency officer, the Commissioner or a Commission officer”.
28 Before section 60
Insert:
Division 1—Information held by the Agency
29 Paragraph 60(2)(a)
Omit “protected information”, substitute “protected Agency information”.
30 Section 62 (heading)
Repeal the heading, substitute:
62 Offence—unauthorised use or disclosure of protected Agency information
31 Paragraph 62(c)
Omit “protected information”, substitute “protected Agency information”.
32 Section 63 (heading)
Repeal the heading, substitute:
63 Offence—soliciting disclosure of protected Agency information
33 Paragraph 63(a)
Omit “from an officer or another person, whether or not any protected information”, substitute “from an Agency officer or another person, whether or not any protected Agency information”.
34 Paragraph 63(c)
Omit “protected information”, substitute “protected Agency information”.
35 Section 64 (heading)
Repeal the heading, substitute:
64 Offence—offering to supply protected Agency information
36 Paragraphs 64(1)(b) and (2)(b)
Omit “protected information”, substitute “protected Agency information”.
37 Subsection 64(3)
Omit “an officer”, substitute “a person”.
38 Section 65
Repeal the section.
39 Subsection 66(1)
Omit “and 65”, substitute “, 64 and 67G”.
40 Paragraph 66(1)(a)
Omit “CEO certifies that it is necessary”, substitute “CEO is satisfied on reasonable grounds that it is”.
41 Subsection 66(2)
Omit “certifying for the purposes of paragraph (1)(a) or disclosing information for the purposes of subparagraph”, substitute “disclosing information for the purposes of paragraph (1)(a) or subparagraph”.
42 Subsection 66(3)
After “protected” (wherever occurring), insert “Agency”.
43 Section 67
Repeal the section, substitute:
67 National Disability Insurance Scheme rules for exercise of CEO’s disclosure powers
The National Disability Insurance Scheme rules may make provision for and in relation to the exercise of the CEO’s power to disclose information for the purposes of paragraph 66(1)(a) or subparagraph 66(1)(b)(i) or (v).
44 Section 68
Repeal the section.
45 At the end of Part 2 of Chapter 4
Add:
Division 2—Information held by the Commission
67A Protection of information held by the Commission etc.
(1) A person may:
(a) make a record of protected Commission information; or
(b) disclose such information to any person; or
(c) otherwise use such information;
if:
(d) the making of the record, or the disclosure or use of the information, by the person is made:
(i) for the purposes of this Act; or
(ii) for the purpose for which the information was disclosed to the person under section 67E; or
(iii) with the express or implied consent of the person to whom the information relates; or
(e) the person reasonably believes that the making of the record, or the disclosure or use of the information, by the person is necessary to prevent or lessen a serious threat to an individual’s life, health or safety.
(2) Without limiting subsection (1), the recording, disclosure or use of information by a person is taken to be for the purposes of this Act if the Commissioner reasonably believes that it is reasonably necessary for one or more of the following purposes:
(a) research into matters relevant to the National Disability Insurance Scheme;
(b) policy development.
67B Offence—unauthorised use or disclosure of protected Commission information
A person commits an offence if:
(a) the person:
(i) makes a record of information; or
(ii) discloses information to any other person; or
(iii) otherwise makes use of information; and
(b) the person is not authorised or required by or under this Act to make the record, disclosure or use of the information that is made by the person; and
(c) the information is protected Commission information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
67C Offence—soliciting disclosure of protected Commission information
A person (the first person) commits an offence if:
(a) the first person solicits the disclosure of information from a Commission officer or another person, whether or not any protected Commission information is actually disclosed; and
(b) the disclosure would be in contravention of this Part; and
(c) the information is protected Commission information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
67D Offence—offering to supply protected Commission information
(1) A person commits an offence if:
(a) the person offers to supply (whether to a particular person or otherwise) information about another person; and
(b) the person knows the information is protected Commission information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
(2) A person commits an offence if:
(a) the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and
(b) the person knows the information is protected Commission information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
(3) Subsections (1) and (2) do not apply to a person acting in the performance or exercise of his or her duties, functions or powers under this Act.
67E Disclosure of information by Commissioner
(1) Despite sections 67B, 67D and 67G, the Commissioner may:
(a) if the Commissioner is satisfied on reasonable grounds that it is in the public interest to do so in a particular case or class of cases—disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her powers under this Act to such persons and for such purposes as the Commissioner determines; or
(b) disclose any such information:
(i) to the Secretary of a Department of State of the Commonwealth, or to the head of an authority of the Commonwealth, for the purposes of that Department or authority; or
(ii) to a person who has the express or implied consent of the person to whom the information relates to collect it; or
(iii) to a Department of State of a State or Territory, or to an authority of a State or Territory, that has responsibility for matters relating to people with disability, including the provision of supports or services to people with disability; or
(iv) to the chief executive (however described) of a Department of State of a State or Territory, or to the head of an authority of a State or Territory, for the purposes of that Department or authority.
(2) In disclosing information for the purposes of paragraph (1)(a) or subparagraph (1)(b)(i), (iii) or (iv), the Commissioner must act in accordance with the National Disability Insurance Scheme rules made for the purposes of section 67F.
(3) Despite any other provision of this Part, the Commissioner may disclose protected Commission information to a participant’s nominee if the protected Commission information:
(a) relates to the participant; and
(b) is or was held in the records of the Commission.
67F National Disability Insurance Scheme rules for exercise of Commissioner’s disclosure powers
The National Disability Insurance Scheme rules may make provision for and in relation to the exercise of the Commissioner’s power to disclose information for the purposes of paragraph 67E(1)(a) or subparagraph 67E(1)(b)(i), (iii) or (iv).
Division 3—Information generally
67G Protection of certain documents etc. from production to court etc.
A person must not, except for the purposes of this Act, be required:
(a) to produce any document in his or her possession because of the performance or exercise of his or her duties, functions or powers under this Act; or
(b) to disclose any matter or thing of which he or she had notice because of the performance or exercise of such duties, functions or powers;
to a court, tribunal, authority or person that has power to require the production of documents or the answering of questions.
67H Part does not affect the operation of the Freedom of Information Act 1982
The provisions of this Part that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982.
46 After Part 3 of Chapter 4 (heading)
Insert:
Note: A person or entity can only provide supports, as a registered provider of supports, to participants that are not in a participating jurisdiction (see paragraph 70(1)(ca)).
47 After paragraph 70(1)(c)
Insert:
(ca) the applicant will manage the funding for supports under plans, or provide supports under plans, to participants in a host jurisdiction that is not a participating jurisdiction; and
48 After Part 3 of Chapter 4
Insert:
Division 1—Application of Part
This Part applies in relation to:
(a) persons or entities applying for registration to provide supports or services to people with disability in participating jurisdictions; and
(b) registered NDIS providers providing supports or services to people with disability in participating jurisdictions; and
(c) NDIS providers providing supports or services to people with disability in participating jurisdictions.
Division 2—Registered NDIS providers
73B Requirement to be a registered NDIS provider
(1) The National Disability Insurance Scheme rules may require that specified classes of supports provided under participants’ plans are to be provided only by NDIS providers who are registered under section 73E to provide those classes of supports.
Note: See also subsection 33(6), which provides that, if the funding for supports under a plan is managed by the Agency, supports are to be provided only by a registered NDIS provider.
(2) A person must not provide a support under a participant’s plan if:
(a) the National Disability Insurance Scheme rules require the person to be registered to provide the support under the plan; and
(b) the person is not so registered.
Civil penalty: 250 penalty units.
73C Application to be a registered NDIS provider
(1) A person may apply to the Commissioner to be a registered NDIS provider in relation to one or more of the following:
(a) the provision of supports or services under the arrangements set out in Chapter 2;
(b) managing the funding for supports under participants’ plans;
(c) the provision of supports under participants’ plans.
Note: An unincorporated association or a partnership may also apply for registration under this section (see section 203).
(2) A person may also apply to the Commissioner to be a registered NDIS provider in relation to the provision of services or supports to people with disability other than under the National Disability Insurance Scheme if the person is included in a class of persons prescribed for the purposes of subparagraph (b)(ii) of the definition of NDIS provider.
(3) The application must:
(a) be in writing; and
(b) be in a form (if any) approved in writing by the Commissioner; and
(c) include any information, and be accompanied by any documents, required by the Commissioner.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(4) The Commissioner may, by written notice, require an applicant for registration to give the Commissioner such further information or documents in relation to the application as the Commissioner reasonably requires.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(5) A notice under subsection (4) may specify a period, which must not be less than 14 days, within which the information or documents must be given.
73D False or misleading information or documents in application
A person contravenes this section if the person:
(a) provides information or a document in, or in connection with, an application for registration; and
(b) the person knows the information or document is false or misleading in a material particular.
Civil penalty: 60 penalty units.
Note: Part 7.4 of the Criminal Code provides offences in relation to false or misleading statements, information and documents.
73E Registration as a registered NDIS provider
Registration
(1) The Commissioner may register a person as a registered NDIS provider if:
(a) the person (the applicant) makes an application under section 73C; and
(b) the applicant will provide supports or services to people with disability in a participating jurisdiction; and
(c) the applicant has been assessed by an approved quality auditor as meeting the applicable standards and other requirements prescribed by the NDIS Practice Standards; and
(d) the Commissioner is satisfied that the applicant is suitable to provide supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(e) the Commissioner is satisfied that the applicant’s key personnel (if any) are suitable to be involved in the provision of supports or services for which the applicant will be registered to provide, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(f) the applicant satisfies any other requirements prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
(2) A person may be registered in respect of one or more of the following:
(a) managing the funding of supports under participants’ plans;
(b) providing specified classes of supports under participants’ plans;
(c) providing specified classes of supports or services under the arrangements set out in Chapter 2;
(d) providing specified classes of supports or services to people with disability other than under the National Disability Insurance Scheme.
(3) Despite subsections (1) and (2), if a banning order is in force in relation to the applicant, the Commissioner must not register the applicant in a way that would be inconsistent with the banning order.
Note: Under subsection 73ZN(3), a banning order may be of general or limited application.
Notice of decision to register
(4) The Commissioner must:
(a) give written notice of a decision to register, or not to register, a person as a registered NDIS provider, including reasons for the decision; and
(b) if the decision is to register the person—provide a certificate of registration, specifying the matters mentioned in subsection (5), to the person.
Certificate of registration
(5) A certificate of registration must specify:
(a) which of the following the person is a registered NDIS provider in relation to:
(i) managing the funding for supports under plans;
(ii) the provision of supports under plans;
(iii) the provision of supports or services under the arrangements set out in Chapter 2;
(iv) the provision of services or supports to people with disability other than under the National Disability Insurance Scheme; and
(b) the classes of supports or services the person is registered to provide; and
(c) if the person is registered in respect of a class of persons—the class of persons in respect of which the provider is registered; and
(d) the conditions (if any) on the registration imposed by the Commissioner under section 73G; and
(e) the period for which the registration is in force; and
(f) any other matter determined in writing by the Commissioner for the purposes of this paragraph.
Note: The registration of a person may be varied (see section 73L), suspended (see section 73N) or revoked (see section 73P) and the period for which the registration is in force may be extended (see section 73K) or varied (see section 73L).
(6) A determination made under paragraph (5)(f) is not a legislative instrument.
73F Registration is subject to conditions
(1) The registration of a person as a registered NDIS provider is subject to the following conditions:
(a) the conditions set out in subsection (2);
(b) the conditions (if any) imposed by the Commissioner under section 73G;
(c) the conditions (if any) determined by the National Disability Insurance Scheme rules under section 73H.
(2) The registration of a person as a registered NDIS provider is subject to the following conditions:
(a) a condition that the person comply with all applicable requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the person or entity operates as a registered NDIS provider;
(b) a condition that the person comply with all applicable requirements of the NDIS Code of Conduct;
(c) a condition that the person comply with all applicable standards and other requirements of the NDIS Practice Standards;
(d) a condition that the person comply with all applicable requirements relating to record keeping prescribed by the National Disability Insurance Scheme rules for the purposes of section 73Q;
(e) a condition that the person implement and maintain the applicable complaints management and resolution system in accordance with section 73W;
(f) a condition that the person comply with all applicable requirements relating to complaints prescribed by the National Disability Insurance Scheme rules for the purposes of section 73X;
(g) a condition that the person implement and maintain the applicable incident management system in accordance with section 73Y;
(h) a condition that the person comply with all applicable requirements relating to reportable incidents prescribed by the National Disability Insurance Scheme rules for the purposes of section 73Z;
(i) a condition that the person give to the Commissioner, on request, information specified in the request within the period specified in the request (which must not be less than 14 days).
73G Conditions specified in certificate of registration
(1) The Commissioner may impose conditions to which the registration of a person as a registered NDIS provider is subject.
(2) A condition may be imposed at the time of registration, or at a later time.
Note: Conditions imposed under this section may also be varied or revoked (see section 73L).
(3) The conditions may include, but are not limited to, conditions relating to the following matters:
(a) the types of quality audits the provider must undergo;
(b) the timing of such quality audits;
(c) requirements relating to supports or services for which the provider is registered to provide, including circumstances in which supports or services for which the provider is registered can or cannot be provided.
73H Conditions determined by NDIS rules
The National Disability Insurance Scheme rules may determine that each registration, or each registration included in a specified class of registration, is taken to include one or more specified conditions.
73J Registered NDIS providers must comply with conditions of registration
A person contravenes this section if the person:
(a) is a registered NDIS provider; and
(b) breaches a condition to which the registration of the person is subject.
Civil penalty: 250 penalty units.
73K Extension of period for which registration is in force
(1) Subsection (2) applies if:
(a) the registration of a person as a registered NDIS provider will cease to be in force on a particular day; and
(b) within 6 months before that day, the person makes an application under section 73C.
(2) Despite paragraph 73E(5)(e), the registration of the person continues in force until the Commissioner makes a decision on the application under subsection 73E(1).
(1) The Commissioner may vary the registration of a registered NDIS provider, by written notice given to the provider:
(a) at any time, on the Commissioner’s own initiative; or
(b) on application by the provider under section 73M.
(2) The Commissioner may vary the registration of a registered NDIS provider if the Commissioner considers it appropriate in all the circumstances to do so.
(3) Without limiting subsection (1), the Commissioner may vary the registration of an NDIS provider to:
(a) impose, vary or revoke conditions to which the registration is subject under section 73G; or
(b) reduce or extend the period for which the registration is in force; or
(c) extend, modify or reduce the supports or services the provider is registered to provide.
(4) If the Commissioner decides to vary the registration of a registered NDIS provider, the Commissioner must give a certificate of registration as varied to the provider.
(5) If, after receiving an application under section 73M, the Commissioner refuses to vary the registration of a registered NDIS provider, the Commissioner must give written notice of the refusal, including reasons for the refusal.
(6) A variation of the registration of a registered NDIS provider takes effect on the day specified in the notice given under subsection (1).
73M Application for variation of registration
(1) A registered NDIS provider may apply for a variation to the provider’s registration.
(2) The application must:
(a) be in writing; and
(b) be in a form (if any) approved in writing by the Commissioner; and
(c) include any information, and be accompanied by any documents, required by the Commissioner.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(3) The Commissioner may, by written notice, require an applicant for a variation to give the Commissioner such further information or documents in relation to the application as the Commissioner reasonably requires.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(4) A notice under subsection (3) may specify a period, which must not be less than 14 days, within which the information or documents must be given.
73N Suspension of registration
Suspension on Commissioner’s own initiative
(1) The Commissioner may, in writing, suspend the registration of a person as a registered NDIS provider for a specified period if:
(a) the Commissioner reasonably believes that the person has contravened, is contravening, or is proposing to contravene, this Act; or
(b) the Commissioner reasonably believes that the application for registration by the person contained information that was false or misleading in a material particular; or
(c) the person is an insolvent under administration; or
(d) the Commissioner is satisfied that the person is no longer suitable to provide the supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or
(e) the Commissioner is no longer satisfied that the key personnel of the person (if any) are suitable to be involved in the provision of supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or
(f) a circumstance exists that is a circumstance prescribed by National Disability Insurance Scheme rules for the purposes of this paragraph.
(2) The period specified under subsection (1) must not be longer than 30 days.
(3) To avoid doubt, subsection (2) does not prevent the Commissioner suspending the registration of a person as a registered provider more than once.
(4) In deciding whether to suspend the registration of a person under subsection (1), the Commissioner must have regard to the following matters:
(a) the nature, significance and persistence of any contravention, or proposed contravention, of this Act;
(b) action that can be taken to address any contravention, or proposed contravention, of this Act;
(c) the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the National Disability Insurance Scheme;
(d) the health, safety or wellbeing of people with disability receiving supports or services from the person;
(e) any other matter the Commissioner considers relevant.
(5) If the registration of a person is suspended under subsection (1), the Commissioner must give the person written notice of the suspension and the reasons for the suspension.
Suspension at the request of registered NDIS provider
(6) The Commissioner may, in writing, suspend the registration of a person as a registered NDIS provider for a specified period if the person requests the Commissioner, in writing, to suspend the registration.
Effect of suspension
(7) If the registration of a person is suspended under this section, the registration ceases to have effect until the suspension ceases to be in force.
73P Revocation of registration
(1) The Commissioner may, in writing, revoke the registration of a person as a registered NDIS provider if:
(a) the Commissioner reasonably believes that the person has contravened, is contravening, or is proposing to contravene, this Act; or
(b) the application for registration by the person contained information that was false or misleading in a material particular; or
(c) the person is an insolvent under administration; or
(d) the Commissioner is satisfied that the person is no longer suitable to provide supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or
(e) the Commissioner is no longer satisfied that the key personnel of the person (if any) are suitable to be involved in the provision of supports or services for which the person is registered to provide, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or
(f) a circumstance exists that is a circumstance prescribed by National Disability Insurance Scheme rules for the purposes of this paragraph.
(2) In deciding whether to revoke the registration of a person under subsection (1), the Commissioner must have regard to the following matters:
(a) the nature, significance and persistence of any contravention, or proposed contravention, of this Act;
(b) action that can be taken to address any contravention, or proposed contravention, of this Act;
(c) the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the National Disability Insurance Scheme;
(d) the health, safety or wellbeing of people with disability receiving supports or services from the person;
(e) any other matter the Commissioner considers relevant.
(3) The Commissioner may, in writing, revoke the registration of a person as a registered NDIS provider if the person requests the Commissioner, in writing, to revoke the registration.
(4) Before deciding to revoke the registration of a person under subsection (1), the Commissioner must notify the person that revocation is being considered. The notice must be in writing and must:
(a) include the Commissioner’s reasons for considering the revocation; and
(b) invite the person to make submissions, in writing, to the Commissioner within 28 days after receiving the notice; and
(c) inform the person that if no submissions are made within that period, any revocation may take effect as early as 7 days after the end of the period referred to in paragraph (b).
(5) In deciding whether to revoke the registration, the Commissioner must consider any submissions given to the Commissioner within the period referred to in paragraph (4)(b).
(6) The Commissioner must notify the person, in writing, of the decision.
(7) The notice under subsection (6) must be given within 28 days after the end of the period for making submissions. If the notice is not given within this period, the Commissioner is taken to have decided not to revoke the registration.
73Q Record keeping by registered NDIS providers
A registered NDIS provider must keep records of the kind, for the period and in the form prescribed by the National Disability Insurance Scheme rules.
Note: Compliance with this section is a condition of registration (see paragraph 73F(2)(d)), breach of which is a civil penalty provision (see section 73J).
73R Record keeping by former registered NDIS providers
(1) A person who has ceased to be a registered NDIS provider must keep records that the person was required to retain under section 73Q immediately before the person ceased to be a registered NDIS provider.
(2) The records must be kept for 3 years commencing on the day that the person ceased to be a registered NDIS provider.
(3) A person contravenes this section if the person:
(a) is subject to a requirement under this section; and
(b) fails to comply the requirement.
Civil penalty: 60 penalty units.
73S Grants of financial assistance in relation to registration
(1) The Commissioner may, on behalf of the Commonwealth, make a grant of financial assistance to a person or entity in relation to applications for registration, or variations to registration, as a registered NDIS provider under this Act.
(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person or entity.
(3) An agreement under subsection (2) may be entered into by the Commissioner on behalf of the Commonwealth.
(1) The National Disability Insurance Scheme rules may make provision for or in relation to standards concerning the quality of supports or services to be provided by registered NDIS providers.
Note: Non‑compliance with the NDIS Practice Standards by registered NDIS providers constitutes a breach of condition of registration (see paragraph 73F(2)(c) and section 73J).
(2) Rules made for the purposes of subsection (1) are to be known as the NDIS Practice Standards.
(3) Without limiting subsection (1), the NDIS Practice Standards may deal with the following:
(a) standards to be complied with to become a registered NDIS provider;
(b) standards to be complied with to remain a registered NDIS provider;
(c) matters relating to assessing compliance with the standards;
(d) matters relating to the screening of workers employed or otherwise engaged by registered NDIS providers.
(1) The Commissioner may, in writing, approve a person or body to be an approved quality auditor for the purposes of this Act.
(2) An approval given under subsection (1) is not a legislative instrument.
(3) The Commissioner may publish, on the Commission’s website, a list of approved quality auditors.
Division 4—NDIS Code of Conduct
(1) The National Disability Insurance Scheme rules may make provision for or in relation to a code of conduct that applies to either or both of the following:
(a) NDIS providers;
(b) persons employed or otherwise engaged by NDIS providers.
(2) Rules made for the purposes of subsection (1) are to be known as the NDIS Code of Conduct.
(3) A person contravenes this section if the person:
(a) is subject to a requirement under the NDIS Code of Conduct; and
(b) fails to comply with the requirement.
Civil penalty: 250 penalty units.
Division 5—Complaints management and resolution
73W Complaints management and resolution system—registered NDIS providers
A registered NDIS provider must implement and maintain a complaints management and resolution system that:
(a) is appropriate for the size of the provider and for the classes of supports or services provided by the provider; and
(aa) acknowledges the role of advocates (including independent advocates) and other representatives of persons with disability; and
(ab) provides for cooperation with, and facilitates arrangements for, advocates (including independent advocates) and other representatives of persons with disability who are affected by the complaints process and who wish to be independently supported in that process by an advocate or other representative; and
(b) complies with the requirements (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note: Non‑compliance with this section constitutes a breach of condition of registration (see paragraph 73F(2)(e) and section 73J).
73X Arrangements relating to the management and resolution of complaints
(1) The National Disability Insurance Scheme rules may prescribe arrangements relating to the management and resolution of complaints arising out of, or in connection with, the provision of supports or services by NDIS providers.
(2) Without limiting subsection (1), the National Disability Insurance Scheme rules may deal with the following matters:
(a) how complaints may be made, managed and resolved, including methods to support the early resolution of complaints;
(b) the roles, rights and responsibilities of people with disability, complainants, NDIS providers, advocates (including independent advocates) and other persons in relation to the management and resolution of complaints;
(c) considerations relevant to making decisions under the National Disability Insurance Scheme rules in relation to complaints;
(ca) requirements relating to procedural fairness in relation to the management and resolution of complaints;
(d) procedures for the review of decisions and processes;
(e) actions that must or may be taken (including making requirements of NDIS providers) to address complaints;
(f) authorising the provision of information relating to complaints to the Minister, the Agency or other specified bodies;
(g) the matters in relation to which the Commissioner may authorise an inquiry, on his or her own initiative.
Division 6—Incident management—registered NDIS providers
73Y Incident management system
A registered NDIS provider must implement and maintain an incident management system that:
(a) is appropriate for the size of the provider and for the classes of supports or services provided by the provider; and
(b) complies with the requirements (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note: Non‑compliance with this section constitutes a breach of condition of registration (see paragraph 73F(2)(g) and section 73J).
(1) The National Disability Insurance Scheme rules must prescribe arrangements relating to the notification and management of reportable incidents that occur, or are alleged to have occurred, in connection with the provision of supports or services by registered NDIS providers.
(2) Without limiting subsection (1), the National Disability Insurance Scheme rules may deal with the following matters:
(a) the manner and period within which reportable incidents must be reported to the Commission;
(b) action that must be taken in relation to reportable incidents;
(c) authorising the provision of information relating to reportable incidents to the Minister, the Agency or other specified bodies;
(d) the matters in which the Commissioner may authorise an inquiry in relation to a reportable incident, on his or her own initiative.
(3) Without limiting paragraph (2)(b), action may include:
(aa) requiring a registered NDIS provider to provide people with disability with information regarding the use of an advocate (including an independent advocate) in relation to an investigation into the reportable incident; and
(a) requiring a registered NDIS provider to arrange for, and cover the cost of, an independent investigation into the reportable incident within a specified period; and
(b) providing a copy of any report of the independent investigation to the Commissioner.
(4) Reportable incident means:
(a) the death of a person with disability; or
(b) serious injury of a person with disability; or
(c) abuse or neglect of a person with disability; or
(d) unlawful sexual or physical contact with, or assault of, a person with disability; or
(e) sexual misconduct committed against, or in the presence of, a person with disability, including grooming of the person for sexual activity; or
(f) the use of a restrictive practice in relation to a person with disability, other than where the use is in accordance with an authorisation (however described) of a State or Territory in relation to the person.
(5) Despite subsection (4), the National Disability Insurance Scheme rules may provide as follows:
(a) that a specified act, omission or event is a reportable incident;
(b) that a specified act, omission or event is not a reportable incident.
Division 7—Protection of disclosers
73ZA Disclosures qualifying for protection
(1) This section applies to a disclosure of information by a person (the discloser) who is, in relation to an NDIS provider, any of the following:
(a) if the NDIS provider is a body corporate—an officer or employee of the body corporate, or a person who has a contract for the supply of goods or services to, or on behalf of, the body corporate;
(b) if the NDIS provider is an unincorporated association—a member of the committee of management or an employee of the association, or a person who has a contract for the supply of goods or services to, or on behalf of, the association;
(c) if the NDIS provider is a partnership—a partner in or an employee of the partnership, or a person who has a contract for the supply of goods or services to, or on behalf of, the partnership;
(d) in any case—a person with disability who is receiving a support or service from the NDIS provider, or a nominee, family member, carer, independent advocate or significant other of that person.
(2) The disclosure of the information by the discloser qualifies for protection under this Division if:
(a) the disclosure is made to one of the following:
(i) the Commissioner;
(ii) the Agency;
(iii) if the NDIS provider is a body corporate—a member of the key personnel of the body corporate;
(iv) if the NDIS provider is an unincorporated association—a member of the key personnel of the association;
(v) if the NDIS provider is a partnership—a partner; and
(b) the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and
(c) 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; and
(d) the discloser makes the disclosure in good faith.
(3) In this section, officer has the same meaning as it has in the Corporations Act 2001.
73ZB Disclosure that qualifies for protection not actionable etc.
(1) If a person makes a disclosure that qualifies for protection under this Division:
(a) the person is not subject to any civil or criminal liability for making the disclosure; and
(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.
Note: This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.
(2) Without limiting subsection (1):
(a) the person has qualified privilege (see subsection (3)) in respect of the disclosure; and
(b) a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.
(3) For the purpose of paragraph (2)(a), qualified privilege, in respect of the disclosure, means that the person:
(a) has qualified privilege in proceedings for defamation; and
(b) is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;
in respect of the disclosure.
(4) For the purpose of paragraph (3)(b), malice includes ill will to the person concerned or any other improper motive.
(5) This section does not limit or affect any right, privilege or immunity that a person has, apart from this section, as a defendant in proceedings, or an action, for defamation.
Actually causing detriment to another person
(1) A person (the first person) contravenes this subsection if:
(a) the first person engages in conduct; and
(b) the first person’s conduct causes any detriment to another person (the second person); and
(c) the first person intends that his or her conduct cause detriment to the second person; and
(d) the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Division.
Civil penalty: 500 penalty units.
Threatening to cause detriment to another person
(2) A person (the first person) contravenes this subsection if:
(a) the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and
(b) the first person:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(c) the first person makes the threat because a person:
(i) makes a disclosure that qualifies for protection under this Part; or
(ii) may make a disclosure that would qualify for protection under this Division.
Civil penalty: 500 penalty units.
Threats
(3) For the purpose of subsection (2), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(4) In proceedings for a civil penalty order against a person for a contravention of subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
If:
(a) a person contravenes subsection 73ZC(1) or (2); and
(b) another person suffers damage because of the contravention;
the person in contravention is liable to compensate the other person for the damage.
Division 8—Compliance and enforcement
Provisions subject to monitoring
(1) This Part is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions of this Part have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance or purported compliance with a provision of this Part is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Part:
(a) an inspector is an authorised applicant; and
(b) an inspector is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Commissioner is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to this Part.
Provisions subject to investigation
(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:
(a) a civil penalty provision in this Part; or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Part.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(2) For the purposes of Part 3 of the Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) an investigator is an authorised applicant; and
(b) an investigator is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Commissioner is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
73ZG Use of equipment to examine or process things
(1) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises entered under an investigation warrant for the purposes of this Act.
Equipment may be brought to premises
(2) The authorised person or a person assisting may bring to the premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether the thing may be seized.
Thing may be moved for examination or processing
(3) A thing found at the premises may be moved to another place for examination or processing in order to determine whether the thing may be seized if:
(a) both of the following apply:
(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(ii) the authorised person or a person assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or
(b) the occupier of the premises consents in writing.
Notification of examination or processing and right to be present
(4) If the thing is moved to another place for the purpose of examination or processing under subsection (3), the authorised person must, if it is practicable to do so:
(a) inform the occupier of the premises of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
(5) The authorised person need not comply with paragraph (4)(a) or (b) if he or she believes on reasonable grounds that to do so might:
(a) endanger the safety of a person; or
(b) prejudice an investigation or prosecution.
Time limit on moving the thing
(6) The thing may be moved to another place for examination or processing for no longer than 14 days.
(7) An authorised person may apply to an issuing officer for one or more extensions of that time if the authorised person believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(8) The authorised person must give notice of the application to the occupier of the premises, and that person is entitled to be heard in relation to the application.
(9) A single extension cannot exceed 7 days.
Equipment at premises may be operated
(10) An authorised person or a person assisting may operate equipment already at the premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized if the authorised person or person assisting believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
73ZH Use of electronic equipment at other place
(1) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Act.
(2) If electronic equipment is moved from the premises to another place under subsection 73ZG(3), the authorised person or a person assisting may operate the equipment to access data (including data held at another place).
(3) If the authorised person or the person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(4) If the Commissioner is satisfied that the data is not required (or is no longer required) for the purposes of this Act or for other judicial or administrative review proceedings, the Commissioner must arrange for:
(a) the removal of the data from any device in the control of the Commission; and
(b) the destruction of any other reproduction of the data in the control of the Commission.
(5) If the authorised person or the person assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can be put in documentary form—put the material in that form and seize the documents so produced.
(6) An authorised person or a person assisting may seize equipment under paragraph (5)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (3) or to put the material in documentary form as mentioned in paragraph (5)(b); or
(b) possession of the equipment by the occupier of the premises could constitute an offence.
73ZI Person with knowledge of a computer or a computer system to assist access etc.
(1) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Act.
(2) The authorised person may apply to an issuing officer referred to in paragraph 73ZF(2)(c) for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow an authorised person or person assisting to do one or more of the following:
(a) access data held in, or accessible from, a computer or data storage device that:
(i) is on the premises; or
(ii) has been moved under subsection 73ZG(3) and is at a place for examination or processing; or
(iii) has been seized under this Act or under the Regulatory Powers Act as it applies in relation to this Act;
(b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c) convert into documentary form or another form intelligible to an authorised person or person assisting:
(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii) data held in a data storage device to which the data was copied as described in paragraph (b); or
(iii) data held in a data storage device removed from premises under the Regulatory Powers Act as it applies in relation to this Act.
(3) The issuing officer may grant the order if the issuing officer is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b) the specified person is:
(i) reasonably suspected of having committed the offence or contravened the civil penalty provision stated in the relevant warrant; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi) a person who is or was a system administrator for the system including the computer or device; and
(c) the specified person has relevant knowledge of:
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.
(4) If:
(a) the computer or data storage device that is the subject of the order is seized under this Act or under the Regulatory Powers Act as it applies in relation to this Act; and
(b) the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure.
(5) If the computer or data storage device is not on the premises, the order must:
(a) specify the period within which the person must provide the information or assistance; and
(b) specify the place at which the person must provide the information or assistance; and
(c) specify the conditions (if any) determined by the issuing officer as the conditions to which the requirement on the person to provide the information or assistance is subject.
(6) A person commits an offence if the person fails to comply with the order.
Penalty: Imprisonment for 2 years.
73ZJ Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in section 73ZG or 73ZH:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in:
(a) the Federal Court of Australia; or
(b) the Federal Circuit Court of Australia; or
(c) a court of a State or Territory that has jurisdiction in relation to the matter;
for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Part is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, the Commissioner is an authorised applicant in relation to the civil penalty provisions of this Part.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Part:
(a) the Federal Court;
(b) the Federal Circuit Court;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Liability of Crown
(4) To avoid doubt, subsection 205(2) does not prevent the Crown from being liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act.
Provisions subject to an infringement notice
(1) A civil penalty provision of this Part is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act, the Commissioner is an infringement officer in relation to the provisions mentioned in subsection (1).
Relevant chief executive
(3) For the purposes of Part 5 of the Regulatory Powers Act, the Commissioner is the relevant chief executive in relation to the provisions mentioned in subsection (1).
Liability of Crown
(4) To avoid doubt, subsection 205(2) does not prevent the Crown from being liable to be given an infringement notice under Part 5 of the Regulatory Powers Act, as that Part applies in relation to this Act.
(1) The Commissioner may give to an NDIS provider a written notice (a compliance notice) if the Commissioner:
(a) is satisfied that an NDIS provider is not complying with this Act; or
(b) is aware of information that suggests that an NDIS provider may not be complying with this Act.
(2) The compliance notice must:
(a) set out the name of the provider to which the notice is given; and
(b) set out brief details of the non‑compliance or possible non‑compliance; and
(c) specify action that the provider must take, or refrain from taking, in order to address the non‑compliance or possible non‑compliance; and
(d) specify a reasonable period within which the provider must take, or refrain from taking, the specified action; and
(e) if the Commissioner considers it appropriate—specify a reasonable period within which the provider must provide the Commissioner with evidence that the provider has taken, or refrained from taking, the specified action; and
(f) state that a failure to comply with the notice is subject to a civil penalty; and
(g) if the provider is a registered NDIS provider—state that a failure to comply with the notice may lead to the provider’s registration being suspended or revoked; and
(h) set out any other matters specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.
(3) An NDIS provider contravenes this subsection if the provider fails to comply with a compliance notice.
Civil penalty: 60 penalty units.
(4) The Commissioner may, by written notice given to an NDIS provider, vary or revoke a compliance notice if the Commissioner considers that it is appropriate in all the circumstances to do so.
(5) In deciding whether to vary or revoke a compliance notice, the Commissioner must consider any submissions that are received from the provider before the end of the period mentioned in paragraph (2)(d).
Banning orders—NDIS providers
(1) The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting specified activities by an NDIS provider if:
(a) the Commissioner has revoked the registration of the person as a registered NDIS provider; or
(b) the Commissioner reasonably believes that:
(i) the person has contravened, is contravening, or is likely to contravene this Act; or
(ii) the person has been involved in, or is likely to become involved in, a contravention of this Act by another person; or
(iii) the person is not suitable to provide supports or services to people with disability; or
(iv) there is an immediate danger to the health, safety or wellbeing of a person with disability if the person continues to be an NDIS provider; or
(c) the person is convicted of an offence involving fraud or dishonesty; or
(d) the person becomes an insolvent under administration.
Note: A person who is subject to a banning order cannot be registered as an NDIS provider in a way that is inconsistent with the order (see subsection 73E(3)).
Banning orders—persons employed or otherwise engaged by NDIS providers
(2) The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting a person who is employed or otherwise engaged by an NDIS provider from engaging in specified activities if:
(a) the Commissioner reasonably believes that:
(i) the person has contravened, is contravening, or is likely to contravene this Act; or
(ii) the person has been involved in, or is likely to become involved in, a contravention of this Act by another person; or
(iii) the person is not suitable to be involved in the provision of supports or services to people with disability; or
(iv) there is an immediate danger to the health, safety or wellbeing of a person with disability if the person continues to engage in the specified activities; or
(b) the person is convicted of an offence involving fraud or dishonesty; or
(c) the person becomes an insolvent under administration.
Application of banning orders
(3) A banning order may:
(a) apply generally or may be of limited application; and
(b) be permanent or for a specified period.
(4) However, a banning order cannot prohibit or restrict activities that a registered NDIS provider is registered to provide under 73E.
(5) A banning order takes effect from the day specified in the order.
(6) A banning order is not a legislative instrument.
Process
(7) The Commissioner may only make a banning order against a person after giving the person an opportunity to make submissions to the Commissioner on the matter.
(8) However, subsection (7) does not apply if the Commissioner’s grounds for making the banning order are, or include, the following:
(a) that there is an immediate danger to the health, safety or wellbeing of a person with disability;
(b) that the Commissioner has revoked the registration of the person as a registered NDIS provider.
(9) The Commissioner must:
(a) give the banning order to the person against whom the order is made; and
(b) include in the banning order a statement of reasons for the order; and
(c) if the banning order is against a person who is employed or otherwise engaged by an NDIS provider—notify the NDIS provider of the order as soon as possible.
Civil penalty
(10) A person contravenes this subsection if:
(a) the person engages in conduct; and
(b) the conduct breaches a banning order that has been made against the person.
Civil Penalty: 1,000 penalty units.
73ZO Variation or revocation of banning orders
Variation or revocation of banning order
(1) The Commissioner may vary or revoke a banning order, by giving written notice to the person against whom the order was made, if the Commissioner is satisfied that it is appropriate to do so.
(2) The Commissioner may do so:
(a) on his or her own initiative; or
(b) on application by the person against whom the order was made.
Process
(3) An application under paragraph (2)(b) must:
(a) be in writing; and
(b) be in a form (if any) approved in writing by the Commissioner; and
(c) include any information, and be accompanied by any documents, required by the Commissioner.
(4) If the Commissioner varies a banning order made against a person, the Commissioner must, on request by the person, give the person a statement of reasons for the variation.
(5) If the Commissioner proposes not to vary or revoke a banning order in accordance with an application lodged by a person under paragraph (2)(b), the Commissioner must give the person an opportunity to make submissions to the Commissioner on the matter.
(6) The Commissioner must:
(a) include in the written notice a statement of reasons for the variation or revocation of the order; and
(b) if the variation or revocation relates to a person who is employed or otherwise engaged by an NDIS provider—notify the NDIS provider of the variation or revocation as soon as possible.
Application of variation or revocation of banning order
(7) A variation or revocation of an order takes effect from the day specified in the order.
(8) A variation or revocation of an order is not a legislative instrument.
Enforceable provisions
(1) The provisions of this Part are enforceable under Part 6 of the Regulatory Powers Act.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
(2) For the purposes of Part 6 of the Regulatory Powers Act, the Commissioner is an authorised person in relation to the provisions mentioned in subsection (1).
Relevant court
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions of this Act:
(a) the Federal Court;
(b) the Federal Circuit Court;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Other undertakings
(4) An authorised person may accept any of the following undertakings:
(a) a written undertaking given by a person that the person will, in order to provide compensation for loss or damage suffered as a result of a contravention or alleged contravention by the person of a provision mentioned in subsection (1), pay another person an amount worked out in accordance with the undertaking;
(b) a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of a provision mentioned in subsection (1).
(5) An undertaking under subsection (4) must be expressed to be an undertaking under that subsection.
(6) The power in subsection (4) is in addition to the power of an authorised person under subsection 114(1) of the Regulatory Powers Act.
(7) Part 6 of the Regulatory Powers Act, other than subsection 114(1), applies to an undertaking accepted under subsection (4) of this section as if it were an undertaking accepted under subsection 114(1) of the Regulatory Powers Act.
Enforceable provisions
(1) The provisions of this Part are enforceable under Part 7 of the Regulatory Powers Act.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person
(2) For the purposes of Part 7 of the Regulatory Powers Act, the Commissioner is an authorised person.
Relevant court
(3) For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions of this Act:
(a) the Federal Court;
(b) the Federal Circuit Court;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Consent injunctions
(4) A relevant court may grant an injunction under Part 7 of the Regulatory Powers Act in relation to a provision mentioned in subsection (1) by consent of all the parties to proceedings brought under that Part, whether or not the court is satisfied that section 121 of that Act applies.
73ZR Appointment of inspectors and investigators
(1) The Commissioner may, in writing, appoint a person who is one of the following as an inspector, an investigator, or both, for the purposes of this Part:
(a) a member of the staff of the Commission under section 181U;
(b) a person assisting the Commissioner under section 181W;
(c) a person performing services for the Commonwealth under a contract with the Commonwealth.
(2) The Commissioner must not appoint a person mentioned in subsection (1) unless the Commissioner is satisfied that:
(a) the person has suitable training or experience to properly exercise the powers for which the person will be authorised to use; and
(b) the person is otherwise an appropriate person to be appointed as an inspector, investigator or both (as the case requires).
(3) A person appointed under this section must, in exercising powers as such, comply with any directions of the Commissioner.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
Division 9—NDIS Provider Register
NDIS Provider Register
(1) The Commissioner must establish and maintain a register for the purposes of this Act, to be known as the NDIS Provider Register.
(2) The NDIS Provider Register may be kept in any form that the Commissioner considers appropriate.
Registered NDIS providers
(3) The NDIS Provider Register must include each of the following for each person who is a registered NDIS provider:
(a) the name of the person;
(b) the person’s ABN (if any);
(c) the period for which the registration of the person is in force;
(d) the address of the principal place of business of the person;
(e) the classes of supports or services the person is registered to provide;
(f) if the registration is in respect of a class of persons—the class;
(g) any conditions to which the registration of the person is subject under section 73G;
(h) if the registration of the person is suspended—information about the suspension;
(i) if the person is subject to a banning order—information about the banning order;
(j) if a compliance notice is in force in relation to the person—information about the compliance notice;
(k) if the person has given an enforceable undertaking under section 73ZP—information about the undertaking;
(l) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
NDIS providers (other than registered NDIS providers)
(4) The NDIS Provider Register may include any of the following in relation to an NDIS provider (other than a registered NDIS provider):
(a) the name of the person;
(b) the person’s ABN (if any);
(c) the address of the principal place of business of the person;
(d) the classes of supports or services the person provides;
(e) if a banning order is, or was, in force in relation to the person—information about the banning order;
(f) if the person is, or was, subject to a compliance notice—information about the compliance notice;
(g) if the person has given an enforceable undertaking under section 73ZP—information about the undertaking;
(h) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Former NDIS providers
(5) The NDIS Provider Register may include any of the following in relation to a person who was an NDIS provider:
(a) the name of the person;
(b) the person’s ABN (if any);
(c) the address of the person;
(d) if the person is, or was, subject to a banning order—information in relation to the banning order;
(e) if the person was a registered NDIS provider and the person’s registration was revoked—information about the revocation;
(f) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Other information
(6) The Commissioner may include other information on the NDIS Provider Register if the Commissioner is satisfied that it is relevant to the provision of supports or services to people with disability.
Rules
(7) The National Disability Insurance Scheme rules may make provision for and in relation to the following:
(a) the correction of entries in the NDIS Provider Register;
(b) the publication of the NDIS Provider Register in whole or part, or of specified information entered on the NDIS Provider Register;
(c) any other matter relating to the administration or operation of the NDIS Provider Register.
49 Subparagraph 82(1)(b)(ii)
After “to an”, insert “Agency”.
50 Section 99
Repeal the section, substitute:
99 Reviewable decisions and decision‑makers
(1) The following table sets out:
(a) the reviewable decisions under this Act; and
(b) the decision‑maker in respect of each of those decisions.
Reviewable decisions and decision‑makers | |||
Item | Column 1 Reviewable decision | Column 2 Provision under which the reviewable decision is made | Column 3 Decision‑maker |
1 | a decision that a person does not meet the access criteria | paragraph 20(a), subsection 21(3) or paragraph 26(2)(c) | CEO |
2 | a decision not to specify a period | paragraph 26(2)(b) | CEO |
3 | a decision to revoke a person’s status as a participant | section 30 | CEO |
4 | a decision to approve the statement of participant supports in a participant’s plan | subsection 33(2) | CEO |
5 | a decision not to extend a grace period | paragraph 40(2)(b) | CEO |
6 | a decision not to reassess a participant’s plan | subsection 48(2) | CEO |
7 | a decision to refuse to approve a person or entity as a registered provider of supports | section 70 | CEO |
8 | a decision to revoke an instrument approving a person or entity as a registered provider of supports | section 72 | CEO |
9 | a decision to refuse to register a person as a registered NDIS provider | section 73E | Commissioner |
10 | a decision to impose conditions to which a person’s registration as a registered NDIS provider is subject | section 73G | Commissioner |
11 | a decision to vary, or refuse to vary, the registration of a registered NDIS provider | section 73L | Commissioner |
12 | a decision to suspend the registration of a registered NDIS provider | section 73N | Commissioner |
13 | a decision to revoke, or not to revoke, the registration of a person as a registered NDIS provider | section 73P | Commissioner |
14 | a decision to give a compliance notice to an NDIS provider | section 73ZM | Commissioner |
15 | a decision to make a banning order | section 73ZN | Commissioner |
16 | a decision to vary, or to refuse to vary or revoke, a banning order | section 73ZO | Commissioner |
17 | a decision to make, or not to make, a determination in relation to a person | paragraph 74(1)(b) | CEO |
18 | a decision not to make a determination that subsections 74(1) and (2) do not apply to a child | paragraph 74(5)(c) | CEO |
19 | a decision to make, or not to make, a determination that a person has parental responsibility for a child | subsection 75(2) or (3) | CEO |
20 | a decision to appoint a plan nominee | section 86 | CEO |
21 | a decision to appoint a correspondence nominee | section 87 | CEO |
22 | a decision to cancel or suspend, or not to cancel or suspend, the appointment of a nominee | section 89, 90 or 91 | CEO |
23 | a decision to give a notice to require a person to take reasonable action to claim or obtain compensation | section 104 | CEO |
24 | a decision to refuse to extend a period | subsection 104(5A) | CEO |
25 | a decision to take action to claim or obtain compensation | paragraph 105(4)(a) | CEO |
26 | a decision to take over the conduct of a claim | paragraph 105(4)(b) | CEO |
27 | a decision to give a notice that the CEO proposes to recover an amount | section 111 | CEO |
28 | a decision not to treat the whole or part of a compensation payment as not having been fixed by a judgment or settlement | section 116 | CEO |
29 | a decision not to write off a debt | section 190 | CEO |
30 | a decision that the CEO is not required to waive a debt | section 192 | CEO |
31 | a decision not to waive a debt | section 193 | CEO |
32 | a decision that the CEO is not required to waive a debt | subsection 194(3) or (4) | CEO |
33 | a decision not to waive a debt | section 195 | CEO |
(2) The National Disability Insurance Scheme rules may:
(a) provide that a decision made under a specified provision of the rules is a reviewable decision; and
(b) specify the decision‑maker in respect of the reviewable decision.
51 Subsection 100(1)
Repeal the subsection, substitute:
(1) The decision‑maker of a reviewable decision must give written notice of the reviewable decision to each person directly affected by the reviewable decision.
(1A) The notice must include a statement:
(a) that:
(i) the person may request a review of the reviewable decision in accordance with this section; or
(ii) if the decision‑maker is taken to have made the reviewable decision because of subsection 21(3) or 48(2)—the decision will be reviewed automatically; and
(b) that the person may seek further review under section 103.
52 Subsection 100(2)
Omit “the CEO”, substitute “the decision‑maker”.
53 Subsections 100(3) and (5)
Omit “the CEO” (wherever occurring), substitute “the decision‑maker”.
54 Paragraph 100(5)(c)
Omit “the CEO’s”, substitute “the decision‑maker’s”.
55 Subsections 100(7) and (8)
Omit “the CEO”, substitute “the decision‑maker”.
56 Subsection 100(9)
Repeal the subsection.
57 Subsection 102(1)
Omit “the CEO” (wherever occurring), substitute “the decision‑maker”.
58 After paragraph 144(3)(b)
Insert:
(ba) the registration of a person or entity as a registered NDIS provider, or the variation, suspension or revocation of that registration; or
59 Paragraph 144(3)(c)
After “the Agency”, insert “or the Commission”.
60 After Chapter 6
Insert:
Chapter 6A—NDIS Quality and Safeguards Commission
Part 1—Commission establishment and functions
181A Establishment of the Commission
(1) The NDIS Quality and Safeguards Commission is established by this section.
Note: The Commission does not have a legal identity separate from the Commonwealth.
(2) The Commission consists of:
(a) the Commissioner; and
(b) the staff of the Commission.
(3) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the Commission is a listed entity; and
(b) the Commissioner is the accountable authority of the Commission; and
(c) the following persons are officials of the Commission:
(i) the Commissioner;
(ii) the staff referred to in section 181U;
(iii) persons assisting the Commissioner referred to in section 181W;
(iv) consultants engaged under section 181V; and
(d) the purposes of the Commission include:
(i) the functions of the Commission referred to in section 181B; and
(ii) the functions of the Commissioner referred to in section 181D.
The Commission’s function is to assist the Commissioner in the performance of the Commissioner’s functions.
Part 2—NDIS Quality and Safeguards Commissioner
There is to be a Commissioner of the NDIS Quality and Safeguards Commission.
181D Commissioner’s functions and powers
(1) The Commissioner has the following functions:
(a) the core functions;
(b) the registration and reportable incident functions;
(c) the complaints functions;
(d) the behaviour support function;
(e) such other functions that are conferred on the Commissioner by or under this Act or any other law of the Commonwealth;
(f) to do anything incidental or conducive to the performance of any of the above functions.
(2) The Commissioner may, by notifiable instrument, make guidelines relating to the performance of any of the functions mentioned in subsection (1).
(3) In performing his or her functions, the Commissioner may:
(a) consult and cooperate with other persons, organisations and governments on matters relating to those functions; and
(b) consult and cooperate with other persons, organisations and governments on matters relating to the determination of the rights and interests of people receiving, or eligible to receive, supports or services under the National Disability Insurance Scheme; and
(c) consult persons and groups with an interest in the supports or services provided under the National Disability Insurance Scheme; and
(d) have regard to the interests and needs of persons receiving, or eligible to receive, supports or services under the National Disability Insurance Scheme.
(3A) In performing his or her functions, the Commissioner must acknowledge, recognise and respect the role of advocates (including independent advocates) in representing the interests of people with disability.
(3B) In performing his or her functions, the Commissioner must have due regard to procedural fairness.
(4) In performing his or her functions, the Commissioner must use his or her best endeavours to:
(a) provide opportunities for people with disability to participate in matters that relate to them and to take into consideration the wishes and views of people with disability in relation to those matters; and
(b) conduct compliance and enforcement activities in a risk responsive and proportionate manner; and
(c) support and maintain a diverse and sustainable NDIS market.
(5) The Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.
181E Commissioner’s core functions
The Commissioner’s core functions are as follows:
(a) to uphold the rights of, and promote the health, safety and wellbeing of, people with disability receiving supports or services, including those received under the National Disability Insurance Scheme;
(b) to develop a nationally consistent approach to managing quality and safeguards for people with disability receiving supports or services, including those received under the National Disability Insurance Scheme;
(c) to promote the provision of advice, information, education and training to NDIS providers and people with disability;
(d) to secure compliance with this Act through effective compliance and enforcement arrangements, including through the monitoring and investigation functions conferred on the Commissioner by Division 8 of Part 3A of Chapter 4;
(e) to promote continuous improvement amongst NDIS providers and the delivery of progressively higher standards of supports and services to people with disability;
(f) to develop and oversee the broad policy design for a nationally consistent framework relating to the screening of workers involved in the provision of supports and services to people with disability;
(g) to provide advice or recommendations to the Agency or the Board in relation to the performance of the Agency’s functions;
(h) to engage in, promote and coordinate the sharing of information to achieve the objects of this Act;
(i) to provide NDIS market oversight, including:
(i) by monitoring changes in the NDIS market which may indicate emerging risk; and
(ii) by monitoring and mitigating the risks of unplanned service withdrawal.
181F Commissioner’s registration and reportable incident functions
The Commissioner’s registration and reportable incident functions are as follows:
(a) the functions conferred on the Commissioner by Division 2 of Part 3A of Chapter 4 (about registered NDIS providers);
(b) the functions conferred on the Commissioner by section 73U (about approved quality auditors);
(c) to monitor registered NDIS provider compliance with their conditions of registration, including in relation to the screening of workers in accordance with the NDIS Practice Standards;
(d) to provide education, guidance and best practice information to NDIS providers in relation to compliance matters;
(e) the functions relating to the notification and management of reportable incidents conferred on the Commissioner by the National Disability Insurance Scheme rules made for the purposes of section 73Z;
(f) to support registered NDIS providers to develop and implement effective incident management systems and to build provider capability to prevent and manage incidents;
(g) to collect, correlate, analyse and disseminate information relating to incidents, including reportable incidents, to identify trends or systemic issues.
181G Commissioner’s complaints functions
The Commissioner’s complaints functions are as follows:
(a) the functions relating to the investigation, management, conciliation and resolution of complaints conferred on the Commissioner by the National Disability Insurance Scheme rules made for the purposes of section 73X;
(b) to educate people about, and develop resources relating to, best practice in the handling of:
(i) complaints arising out of, or in connection with, the provision of supports or services by NDIS providers; and
(ii) matters arising from such complaints;
(c) to build the capability of people with disability to pursue complaints in relation to the provision of supports or services by NDIS providers;
(d) to build NDIS provider capability to develop a culture of learning and innovation to deliver high quality supports and services, prevent incidents and respond to complaints;
(e) to collect, correlate, analyse and disseminate information relating to complaints arising out of, or in connection with, the provision of supports or services by NDIS providers.
181H Commissioner’s behaviour support function
The Commissioner’s behaviour support function is to provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices, by NDIS providers, including by:
(a) building capability in the development of behaviour support through:
(i) developing and implementing a competency framework for registered NDIS providers whose registration includes the provision of behaviour support assessments and developing behaviour support plans; and
(ii) assessing the skills and experience of such providers against the competency framework; and
(b) developing policy and guidance materials in relation to behaviour supports and the reduction and elimination of the use of restrictive practices by NDIS providers; and
(c) providing education, training and advice on the use of behaviour supports and the reduction and elimination of the use of restrictive practices; and
(d) overseeing the use of behaviour support and restrictive practices, including by:
(i) monitoring registered NDIS provider compliance with the conditions of registration relating to behaviour support plans; and
(ii) collecting, analysing and disseminating data and other information relating to the use of behaviour supports and restrictive practices by NDIS providers; and
(e) undertaking and publishing research to inform the development and evaluation of the use of behaviour supports and to develop strategies to encourage the reduction and elimination of restrictive practices by NDIS providers; and
(f) assisting the States and Territories to develop a regulatory framework, including nationally consistent minimum standards, in relation to restrictive practices:
(i) in line with the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector; and
(ii) consistent with the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.
Note: The Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
181J Charging of fees by Commissioner
(1) The Commissioner may charge fees in accordance with an instrument made under subsection (2).
(2) The Minister may, by legislative instrument, determine:
(a) the things that the Commissioner does in the performance of his or her functions for which he or she may charge fees; and
(b) the amount, or a method of working out the amount, of those fees.
(3) A fee must not be such as to amount to taxation.
181K Minister may give directions to the Commissioner
(1) The Minister may, by legislative instrument, give directions to the Commissioner about the performance of his or her functions and the exercise of his or her powers.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) A direction given under subsection (1):
(a) must not relate to a particular individual or provider; and
(b) must not be inconsistent with this Act, the regulations or an instrument made under this Act.
(3) The Commissioner must comply with a direction given under subsection (1).
(4) Subsection (3) does not apply to the extent that the direction relates to the Commissioner’s performance of functions or exercise of powers under the following Acts in relation to the Commission:
(a) the Public Service Act 1999;
(b) the Public Governance, Performance and Accountability Act 2013.
181L Appointment of the Commissioner
(1) The Commissioner is to be appointed by the Minister, by written instrument, on a full‑time basis.
(2) The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.
Note: The Commissioner may be reappointed (see section 33AA of the Acts Interpretation Act 1901).
The Minister may, by written instrument, appoint a person to act as the Commissioner:
(a) during a vacancy in the office of Commissioner (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Commissioner:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
181N Remuneration and allowances
(1) The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is determined under paragraph (4)(a).
(2) The Commissioner is to be paid the allowances that are determined under paragraph (4)(b).
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
(4) The Minister may, by legislative instrument, determine:
(a) remuneration for the purposes of subsection (1); and
(b) allowances for the purposes of subsection (2).
(1) The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant to the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines in writing.
The Commissioner must not engage in paid work outside the duties of his or her office without the Minister’s approval.
181R Other terms and conditions
The Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined, in writing, by the Minister.
(1) The Commissioner may resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
181T Termination of appointment
(1) The Minister may terminate the appointment of the Commissioner:
(a) for misbehaviour; or
(b) if the Commissioner is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of the Commissioner if:
(a) the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Commissioner engages, without the Minister’s approval, in paid work outside the duties of his or her office (see section 181Q).
Note: The appointment of the Commissioner may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
Part 3—Staff etc. of the Commission
(1) The staff of the Commission must be persons engaged under the Public Service Act 1999.
(2) For the purposes of that Act:
(a) the Commissioner and the staff of the Commission together constitute a Statutory Agency; and
(b) the Commissioner is the Head of that Statutory Agency.
(1) The Commissioner may, on behalf of the Commonwealth, engage consultants to assist in the performance of the Commissioner’s functions.
(2) The consultants are to be engaged on the terms and conditions that the Commissioner determines in writing.
181W Persons assisting the Commissioner
The Commissioner may be assisted:
(a) by employees of Agencies (within the meaning of the Public Service Act 1999); or
(b) by officers or employees of a State or Territory; or
(c) by officers or employees of authorities of the Commonwealth, a State or a Territory;
whose services are made available to the Commissioner in connection with the performance of the Commissioner’s functions.
61 Subsection 183(2)
After “the first day an”, insert “Agency”.
62 Paragraph 188(2)(d)
Omit “the officer”, substitute “the Agency officer”.
63 Subsection 188(4)
After “specified”, insert “Agency”.
64 Subsection 188(5)
After “before an”, insert “Agency”.
65 After section 197
Insert:
197A Method of notification by Commissioner
If this Act, the regulations or the National Disability Insurance Scheme rules require or permit the Commissioner to notify a person, the Commissioner may notify the person:
(a) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Commissioner; or
(b) by giving the notice to the person personally; or
(c) in any other way the Commissioner considers appropriate.
197B Commissioner not required to make a decision
(1) If this Act, the regulations or the National Disability Insurance Scheme rules require a request or application to be in a form approved by the Commissioner, the Commissioner is not required to make a decision on the request or application if it is not in that form.
(2) If this Act, the regulations or the National Disability Insurance Scheme rules permit the Commissioner to require information or documents for the purposes of, or for purposes relating to, making a decision or doing a thing, the Commissioner is not required to make the decision or do the thing until the information or documents are provided.
66 Section 201 (heading)
Repeal the heading, substitute:
201 Delegation by the Minister to the CEO
67 At the end of section 201
Add:
(4) Despite subsection (1), the power to make National Disability Insurance Scheme rules for the purposes of the provisions listed in subsection 201A(1) may not be delegated to the CEO.
68 After section 201
Insert:
201A Delegation by the Minister to the Commissioner
(1) The Minister may, in writing, delegate to the Commissioner his or her powers under section 209 to make National Disability Insurance Scheme rules for the purposes of the following provisions:
(a) paragraph (b) of the definition of NDIS provider in section 9;
(b) section 67F (NDIS rules for exercise of Commissioner’s disclosure powers);
(c) subsection 73B(1) (requirement to be a registered NDIS provider);
(d) paragraphs 73E(1)(d), (e) and (f) (registration as a registered NDIS provider);
(e) section 73H (conditions determined by NDIS rules);
(f) paragraphs 73N(1)(d), (e) and (f) (suspension of registration);
(g) paragraphs 73P(1)(d), (e) and (f) (revocation of registration);
(h) section 73Q (record keeping by registered NDIS providers);
(i) subsection 73T(1) (NDIS Practice Standards);
(j) subsection 73V(1) (NDIS Code of Conduct);
(k) paragraph 73W(b) (complaints management and resolution system);
(l) subsection 73X(1) (complaints management and resolution);
(m) paragraph 73Y(b) (incident management system);
(n) subsections 73Z(1) and (5) (reportable incidents);
(o) paragraph 73ZM(2)(h) (compliance notices);
(p) paragraphs 73ZS(3)(l), (4)(h) and (5)(f) and subsection 73ZS(7) (NDIS Provider Register).
(q) subsection 99(2) (reviewable decisions).
(2) When exercising powers under a delegation, the Commissioner must comply with any directions of the Minister.
69 Subsection 202(1)
After “delegate to an”, insert “Agency”.
70 Subsection 202(2)
After “only to an”, insert “Agency”.
71 After section 202
Insert:
202A Delegation by the Commissioner
(1) Subject to subsection (2) and section 202B, the Commissioner may, in writing, delegate to a Commission officer any or all of his or her powers or functions under this Act, the regulations or the National Disability Insurance Scheme rules.
Note: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
(2) Despite subsection (1), the Commissioner may delegate the Commissioner’s powers and functions under Part 2 of Chapter 4 (privacy) only to a member of staff of the Commission (see section 181U).
(3) A person exercising powers or functions under a delegation under this section must comply with any directions of the Commissioner.
202B Delegation of regulatory powers
(1) The Commissioner may, in writing, delegate the powers and functions mentioned in subsection (2), to an SES employee, or an acting SES employee, in the Commission.
Note 1: The expressions SES employee and acting SES employee are defined in section 2B of the Acts Interpretation Act 1901.
Note 2: See also sections 34AA and 34AB of the Acts Interpretation Act 1901.
(2) The powers and functions that may be delegated are the powers and functions under Division 8 of Part 3A of Chapter 4 (compliance and enforcement), including:
(a) powers under the Regulatory Powers Act in relation to the provisions of this Act; and
(b) powers and functions under the Regulatory Powers Act that are incidental to a power mentioned in paragraph (a).
(3) A person exercising powers or performing functions under a delegation under subsection (1) must comply with any directions of the Commissioner.
72 Subsections 203(1) and (2)
Repeal the subsections, substitute:
(1) This Act applies to an entity that:
(a) is a registered provider of supports; or
(b) wishes to apply for approval as a registered provider of supports; or
(c) is a registered NDIS provider; or
(d) wishes to apply for registration as a registered NDIS provider; or
(e) is an NDIS provider;
as if the entity were a person, but with the changes mentioned in subsections (3), (4) and (5).
(2) In addition:
(a) Division 2 of Part 1 of Chapter 4; and
(b) Part 2 of Chapter 4;
apply to an entity as if the entity were a person, but with the changes mentioned in subsections (3), (4) and (5).
73 At the end of section 203
Add:
(6) This section applies to a contravention of a civil penalty provision in a corresponding way to the way in which it applies to an offence.
(7) For the purposes of this Act, a change in the composition of a partnership does not affect the continuity of the partnership.
74 Section 204 (heading)
Repeal the heading, substitute:
204 Time frames for decision making by CEO
75 At the end of section 205
Add:
(3) To avoid doubt, subsection (2) does not prevent the Crown from being liable to pay a pecuniary penalty under section 73ZK or 73ZL.
Note: Section 73ZK deals with civil penalty orders and section 73ZL deals with infringement notices.
76 At the end of Part 3 of Chapter 7
Add:
207A State or Territory agreement required in relation to certain delegations under this Act
(1) The CEO may not delegate a power or function under this Act to an officer or employee of a State or Territory, or an officer or employee of a body established for a public purpose by or under a law of the State or Territory, without the written agreement of the relevant Minister of the State or Territory.
(2) The Commissioner may not delegate a power or function under this Act to an officer or employee of a State or Territory, or an officer or employee of an authority of a State or a Territory, without the written agreement of the relevant Minister of the State or Territory.
77 After subsection 209(1)
Insert:
(1A) Without limiting subsection 33(3A) of the Acts Interpretation Act 1901, rules made for the purposes of subsection (1) of this section:
(a) may be of general application or may be limited as provided in the rules; and
(b) may make different provision in relation to different kinds of providers, supports, services, circumstances or any other matter.
78 Subsection 209(8) (at the end of the cell at table item 2, column headed “Description”)
Add:
; (e) section 73H, to the extent that the rules deal with conditions on classes of registration relating to behaviour support;
(f) subsection 73T(1), to the extent that the NDIS Practice Standards deal with the screening of workers involved in the provision of supports or services to people with disability under the National Disability Insurance Scheme.
79 Subsection 209(8) (cell at table item 4, column headed “Description”)
Repeal the cell, substitute:
Rules made for the purposes of any of the following provisions: (a) paragraph (b) of the definition of NDIS provider in section 9; (b) section 40; (c) section 46; (d) section 67F; (e) subsection 73B(1); (f) paragraphs 73E(1)(d), (e) and (f); (g) section 73H, other than to the extent covered by table item 2; (h) paragraphs 73N(1)(d), (e) and (f); (i) paragraphs 73P(1)(d), (e) and (f); (j) section 73Q; (k) subsection 73T(1), other than to the extent covered by table item 2; (l) subsection 73V(1); (m) paragraph 73W(b) (n) subsection 73X(1); (o) paragraph 73Y(b); (p) subsections 73Z(1) and (5); (q) paragraph 73ZM(2)(h); (r) paragraphs 73ZS(3)(l), (4)(h) and (5)(f); (s) subsection 73ZS(7); (t) subsection 99(2); (u) section 106; (v) section 107; (w) section 182; (x) section 194. |
80 At the end of section 209
Add:
(9) To avoid doubt, the National Disability Insurance Scheme rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
(10) National Disability Insurance Scheme rules that are inconsistent with the regulations have no effect to the extent of the inconsistency, but National Disability Insurance Scheme rules are taken to be consistent with the regulations to the extent that the National Disability Insurance Scheme rules are capable of operating concurrently with the regulations.
81 Transitional rules
(1) The Minister may, by legislative instrument, make rules of a transitional nature (including any saving or application provisions) relating to:
(a) the amendments or repeals made by this Schedule; or
(b) the enactment of this Act.
(2) Without limiting subitem (1), the rules may make provision in relation to the following matters:
(a) a State or Territory becoming a participating jurisdiction;
(b) the transition of a person or entity from a registered provider of supports to a registered NDIS provider;
(c) the transition from the application of provisions of laws of the States and the Territories to the application of provisions of the National Disability Insurance Scheme Act 2013, as in force immediately after the commencement of this item.
(3) The rules may provide that provisions of this Schedule are taken to be modified as set out in the rules. Those provisions then have effect as if they were so modified.
(4) To avoid doubt, the rules may not do the following:
(a) create an offence or civil penalty;
(b) provide powers of:
(i) arrest or detention; or
(ii) entry, search or seizure;
(c) impose a tax;
(d) set an amount to be appropriated from the Consolidated Revenue Fund under an appropriation in this Act;
(e) directly amend the text of this Act.
[Minister’s second reading speech made in—
House of Representatives on 31 May 2017
Senate on 22 June 2017]
(117/17)