A late government amendment (IC116) was dropped on our office proposing broad new immunities from producing documents or information for key NDIS figures, including the CEO, board members, commissioners, actuaries, and agency officers.
When I first reviewed the amendment, it looked like a sweeping shield that could let wrongdoers off the hook, shut down accountability, block Senate estimates from getting answers, and potentially cover up fraud. I asked the Minister on whether fraud was even on their radar and questioned if it was part of a deal with the LNP.
Minister McAllister assured me that the core purpose of the amendment is actually to stop dodgy providers from exploiting existing privacy clauses to dodge fraud investigations, workplace health and safety checks, and anti-corruption oversight (such as the NACC and ACIC).
The Minister clarified that these strict immunities only apply to protecting sensitive, personal information belonging to NDIS participants. She maintained that standard redaction isn’t always enough to safely handle participant privacy, though agency staff remain fully accountable to bodies like the NACC.
While I completely agree that participants’ personal details must remain private and out of the public eye, I’m concerned this would block senators from accessing documents with personal details redacted. The Minister said that officers would have to evaluate requests on a case-by-case basis depending on the exact nature of the protected information involved.
Transcript
Senator ROBERTS: Minister, government amendment IC116 revised has just been received by our office—it’s been presented just this evening—wanting to insert into the bill part 7, titled ‘Immunity from producing documents or information’:
(1) A person is not required to produce a document, or disclose any information, matter or thing, to a court, tribunal, authority
or other person or entity having the power to make such a requirement, if:
(a) the person is, or has been, a person mentioned in subsection (2)—which I’ll get to in a minute; it’s all encompassing—
(b) the document, information, matter or thing has come to the knowledge, or into the possession, or to the notice, of the person because of:
(i) the performance or exercise of the person’s duties, functions …
The following positions are listed:
(a) the CEO;
(b) a Board member;
(c) the Commissioner;
(d) a member of the Advisory Council;
(e) the scheme actuary;
(f) the reviewing actuary;
(g) an Agency officer;
(h) a Commission officer;
(i) a consultant engaged under section 171 or 181V;
(j) a person performing services:
(i) for the Agency under a contract with the Agency; or
(ii) for the Commission under a contract with the Commission.
If someone does something wrong while in one of these positions, or having been in one of these positions, apparently they do not have to disclose documents or information. How can that lead to accountability? I thought this was all about care. We’re concerned about the care given to disabled people, we’re concerned about the taxpayer on the hook and we’re concerned about Public Service accountability. The way we read it, it means Senate estimates cannot seek information or documents from these people. The first question is: isn’t fraud on your radar? The second question is: was this part of your deal with the LNP?
Senator McALLISTER (Minister for the National Disability Insurance Scheme): Senator Roberts, it might assist you if I talk through the background for this amendment that the government has brought forward. At the moment, the legislation that governs the NDIS provides very broad immunities, including for the categories of persons that you just alluded to in your question, and that’s for a very good reason. It’s because the NDIS Quality and Safeguards Commission and the NDIA hold deeply personal information about people with disability. To ensure that that information, which is personal in nature, is protected and that disabled people who participate in the scheme can be confident that their information is protected, there are very strict privacy provisions about what can be shared about an individual person. On occasion, you may have heard me or another minister being asked about a particular person or a particular case and we declined to answer because, appropriately, a person’s individual circumstances held by a government agency may not be disclosed except under very limited circumstances. However, the challenge that we’ve been observing is that some providers have been arguing that that immunity extends to them. So when a fraud investigation or some other form of investigation is underway, providers have argued that they are not required or compelled to produce those documents because of this immunity. This amendment essentially seeks to ensure that regulators can compel providers to provide documentation for the purpose of performing their regulatory functions. It would also enable agencies such as the Australian Criminal Intelligence Commission or the National Anti-Corruption Commission to investigate serious and organised crime operating in the NDIS. It will prevent NDIS providers from claiming immunity from the production of documents under 67G of the act. So NDIS providers and their employees would not be able to use this provision of the act to refuse to provide information to a court, a tribunal or other law enforcement agency with the power to seek this information. For example, to date, providers have attempted to rely on this immunity to refuse to provide information during workplace health and safety investigations. Immunity would henceforth only apply to officers of the NDIA and the NDIS Quality and Safeguards Commission. There would be exceptions where disclosure was necessary for the purposes of the NDIS Act, the Royal Commissions Act, the National Anti-Corruption Commission Act and the Australian Crime Commission Act.
Senator ROBERTS: Couldn’t it simply, in the interests of openness, require redaction of personal details?
Senator McALLISTER: The amendment before us seeks to make sure that the privacy provisions are being used as intended, and, in doing so, it seeks to make it clear that they are not intended to be relied upon by providers who have in recent times sought to use these immunities to prevent them from being accountable for some of their obligations. As I indicated in my earlier answer to you, the immunities that apply to officers of the NDIA and the NDIS Quality and Safeguards Commission are subject to exceptions where disclosure is necessary, and I listed those. There are some purposes under the NDIS Act that enable or compel disclosure. The Royal Commissions Act is relevant; the National Anti- Corruption Commission Act is relevant, and the Australian Crime Commission Act is relevant.
Senator ROBERTS: Couldn’t normal redaction processes cover the personal confidential details?
Senator McALLISTER: I think the advice we have is no and that the protections that are in place that protect the personal details of disabled people who are participants in this scheme are an important feature of the operations of the scheme.
Senator ROBERTS: I’m not alluding to any people in their current position, but, in the future, if a CEO, board member, commissioner, member of the advisory council or scheme actuary were to do anything wrong, they wouldn’t have to disclose that information; is that correct?
Senator McALLISTER: The advice that I have is that, if an employee of the NDIA or of the NDIS Quality and Safeguards Commission does something wrong, they are accountable in all of the ordinary ways, including, of course, to the National Anti- Corruption Commission. These protections apply only to the disclosure of personal information about participants.
Senator ROBERTS: Let me check my understanding: it’s only to personal details, personal disclosure?
Senator McALLISTER: The act defines protected information, Senator, and I’m paraphrasing here, but, in general and non-legal terms, protected information generally refers to personal information about participants.
Senator ROBERTS: As a senator, I ask questions in Senate estimates. I’m not interested in personal details. I wouldn’t like to see that come out in public, so I agree with that, but does this impact, in any way, a senator’s right to gain access to information or documents in Senate estimates or orders for production of documents?
Senator McALLISTER: Not unless it contains that protected information that we were speaking about earlier. Senator.
Senator ROBERTS: What if I asked for with that with the personal details redacted? I’m not interested in personal details.
Senator McALLISTER: I think it would depend on the circumstances, Senator. The prohibition is on the release of protected information, and, if you made a request of that kind, the officer at Senate estimates would have to consider their legal obligations and make a decision which was specific to the document that you were requesting.
Senator ROBERTS: Thank you, Minister.
