NDIA Accountability Project

Law Council commentary on NDIS information disclosure powers

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National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017

Submission from The Law Council

Date: 31 July 2017

Office of the President

Senator Jonathon Duniam Chair Senate Standing Committee on Community Affairs (Legislation) PO Box 6100 Parliament House Canberra ACT 2600

By email: community.affairs.sen@aph.gov.au

Dear Senator,

1. Introduction

Thank you for the opportunity to provide a submission to the Senate Standing Committee on Community Affairs’ inquiry into the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (the Bill).

2. Acknowledgement of Assistance

The Law Council is grateful for the assistance of the Law Society of New South Wales in the preparation of this submission.

3. Support for Quality and Safeguards Commission

The Law Council supports the establishment of a National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission along with the appointment of a Commissioner to oversee the regulatory framework as provided in Schedule 1 of the Bill.

4. Further Comments Regarding the Bill

The Law Council makes the following further comments in relation to the Bill:

Clause 67A – Protection of information held by the Commission

5. Appropriate measures for protection of personal information

The Law Council considers clause 67A of the Bill, which sets out the measures that must be taken for the protection of personal information that the Commission may obtain in the course of its functions, to be appropriate.

6. Expansion of circumstances allowing disclosure via court order

The Law Council recognises the public interest in protecting against the unauthorised use or disclosure of protected health information. However, the Law Council suggests that the circumstances in which a person may make a record, disclose, or otherwise use protected information in clause 67A should be expanded to include disclosure pursuant to an order of the court. In these circumstances, the court should have regard to the criteria set out in clause 67A.

Footnote: See National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, Explanatory Memorandum, [44].

       7.   The Law Council suggests that the best approach to this issue would be to broaden
            the scope of information that can be disclosed, modelled on the provisions of the
           Health Records and Information Privacy Act 2002 (NSW). This should  still be
            consistent with clause 67A.

     Clause 67B – Offence of unauthorised use or disclosure of protected Commission
     information

       8.   The Law Council recognises the need to prevent the unauthorised use or disclosure
              of protection health information. However,  this needs to be balanced with the
               practicability of prohibiting a health practitioner from using health information provided
             to the practitioner. Once the Commission discloses information, a recipient needs to
         be able to use that information  in accordance with existing privacy and other
              legislative obligations to perform their usual functions. The Law Council notes that
              effectively quarantining protected Commission information from the rest of a patient’s
           medical record or file may pose practical difficulties. However, it is noted that this risk
        may be managed by organisations such as through an evaluation and update as
          necessary of its information handling systems.

       9.   The Law Council also notes that it is unclear how the Commission will refer complaints
             to other regulators such as the Health Care Complaints Commission or the Medical
          Board of Australia. Consideration should be given to the appropriate framework for
           complaints to be referred promptly by the Commissioner to the appropriate body.

     Clause 67F – NDIS rules for exercise of Commissioner’s disclosure powers

      10.  As outlined in the Explanatory Memorandum, clause 67F provides that NDIS rules
        may be created by the Commission to make provision for and in relation to the
            exercise of the Commissioner’s powers to disclose information for the purposes of
           clauses 67E(1)(a) and (1)(b)(i), (i) or (iv). The Bill does not set out those rules.

      11.  The Law Council supports the development of rules regarding the disclosure of
            information by  the  Commissioner. The Law  Council  considers  that  relevant
           stakeholders should be consulted in the development of those rules.

     Clause 73V – NDIS Code of Conduct

      12.  The Law Council notes that clause 73V includes a penalty provision if the NDIS Code
              of Conduct is breached. The Law Council considers that further consultation regarding
            the penalty provisions for a breach of the Code of Conduct should be undertaken once
            the Code of Conduct has been finalised.

     Clause 73Z – Reportable incidents

      13.  The Law Council supports the inclusion of clause 73Z, providing for NDIS rules to
            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 NDIS providers. The Law Council considers that relevant
           stakeholders should be consulted in relation to the creation of such rules.

      14.  The Law Council also recommends that the  Bill include a requirement that the
         Commission report annually regarding breaches  of the Code  of Conduct and
            reportable incidents.

NDIS Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 Page 2

Division 7 of Part 3A

  1. The Law Council supports Division 7 of Part 3A, given the public interest in the whistleblower protections. However, in the Law Council’s view, a complaint should not be dismissed solely on the basis that it is made anonymously. The Law Council also notes that in respect of complaints made by vulnerable people, there should be consideration of what the appropriate standards might be for accepting complaints, given that a complaint might be made in good faith but without sufficient information in an evidentiary form.

  2. In the first instance, please contact Dr Natasha Molt, Senior Legal Adviser, at if you would like any further information or clarification.

Yours sincerely

Fiona McLeod SC President

NDIS Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 Page 3