Submission on NDIS (Quality and

Safeguards Commission and other measures) Bill 2017

August 2017

Contact Jim Simpson Senior Advocate

Tracy Wright CEO

www.nswcid.org.au www.facebook.com/NSWCID 1800 424 065

Who we are

For 60 years, NSWCID has been the peak advocacy group in NSW for people with intellectual disability. We have a diverse membership of people with intellectual disability, family members, advocates, professionals and advocacy and service provider organisations. Our Board must have a majority of people with intellectual disability and we actively involve people with an intellectual disability in all aspects of our work.

Especially in the last 10 years, we have had a heavy focus on the development of the capacity of people with intellectual disability to not only make their own decisions but also lead our organisation. The NSW government has funded our My Choice Matters project which is focused on developing the ability of people with intellectual disability to control their own lives in accordance with the principles of choice and control that are inherent in the National Disability Insurance Scheme.

We have two representatives on the Intellectual Disability Reference Group of the National Disability Insurance Agency.

www.nswcid.org.au

Preliminary comment

From the start, we have been strong supporters of the development of the NDIS and we continue to see the scheme as having a fundamental capacity to improve the lives of people with disability around Australia. In the submission, we seek to be constructive critics so as to assist the development of the scheme to its full potential. Due to time pressures, this submission focuses only on one key issue, the independence of the proposed Commission.

Independence of the Quality and Safeguards Commission

The Commission should not be subject to ministerial direction

We see the independence of the Commission as being key to its effectiveness and public confidence in it.

In NSW, many functions similar to those of the Commission currently sit with the NSW Ombudsman. These include:

• promoting the development of standards for disability services
• monitoring and reviewing the delivery of community services

• own motion inquiry powers
• complaints resolution
• a deaths review scheme
• a reportable incidents scheme

(Community Services (Complaints, Reviews and Monitoring) Act 1993 section 11 and Ombudsman Act Part 3C)

In all of the Ombudsman’s functions, she or he is completely independent and not subject to ministerial direction.

Conversely, section 181K(1) of the Commonwealth bill says,

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.

The accompanying note says that the disallowance provisions in section 42 of the Legislation Act 2003 will not apply to these ministerial directions.

Section 181K (2) does say that a direction “must not relate to a particular individual or provider” and “must not be inconsistent with this Act, the regulations or an instrument made under this Act”.

The upshot is that the Minister of the day could give wide-ranging legislative directions to the Commissioner in relation to matters such as:

• The Commissioner’s function of providing advice or recommendations to the NDIA (section 181E(g).
• The function of monitoring registered NDIS provider compliance with their conditions of registration, including in relation to the screening of workers (181(d)).
• Providing best practice information to providers (181F(d)).
• Collecting, analysing and disseminating information relating to reportable incidents (181F(g)) or complaints (181G(e)).
• Developing and implementing a competency framework for behaviour support professionals (181H(a)(i)).
• Policy and guidance material in relation to behaviour supports and the reduction of restrictive practices (181H(b)).
• Overseeing behaviour support and restrictive practices including by monitoring compliance and collecting, analysing and disseminating data and information (181H(d)).

Directions in these areas could seriously impinge on the Commissioner’s capacity to:

• Provide robust advice and recommendations to the NDIA.

• Adequately monitor provider compliance with terms of registration and worker screening requirements.
• Provide robust best practice guidance including in relation to behaviour supports and the reduction of restrictive practices.
• Provide a robust competency framework for restrictive practices professionals.
• Provide public transparency on reportable incidents, complaints and use of restrictive practices.

The development of rules may show further areas where the independence of the Commissioner could be qualified by ministerial direction.

Section 181K has potential to have a major negative effect on the capacity of the Commissioner to ensure an effective quality and safeguards framework.

We recommend that section 181K be removed from the Bill or at least have major qualifications placed on it to improve the effectiveness of the Commissioner’s role.

The Commissioner needs broad power to pass on information

Section 67E gives the Commissioner a power to disclose information acquired in performance of Commission functions:

• if it is in the public interest to do so or
• to a Commonwealth or State agency that has responsibility for disability issues or for the purposes of that agency.

We see this power as vital to the Commission’s capacity to bring improper actions to the attention of other relevant agencies and, where appropriate, to the attention of the public.

We are concerned that this power of the Commissioner may be qualified by statutory rules (sections 67(2) and 67F). While some qualification may be appropriate to take account of the privacy of individuals with disability, there is potential for rules to inappropriately constrain the Commissioner’s power to disclose poor or illegal practices of service providers.

We recommend that sections 67(2) and 67F be qualified so that rules that cannot be made that will constrain the Commissioner’s power to disclose poor or illegal practices of service providers.

The Commissioner should have unqualified power to conduct own motion inquiries

We are also concerned by limitations on the Commissioner’s independence in sections 73X and 73Z. These provisions say that rules may determine in which kinds

• Of reportable incidents or complaints the Commissioner will have the power to
• Authorise an inquiry on his or her own initiative (section 73X(2)(g) and 73Z(2)(d)).

The NSW Ombudsman is not subject to this limitation.

We recommend that it be made clear that the Commissioner has unqualified own motion powers to conduct inquiries into reportable incidents and other issues in relation to the actions of NDIS providers.

A three-year term of appointment for the Commissioner is too short

A further potential limitation on the Commissioner’s independence is that the Bill specifies that the Commissioner may be appointed for only up to three-year term at a time (section 181L)

We recommend that the Commissioner be appointed for five years.