5.122   The appointment and conduct of Commonwealth representatives should be subject to appropriate and effective safeguards.

5.123   There are a range of existing complaint, review and appeal mechanisms under the NDIS. For example, participants may seek internal review of a reviewable decision,[121] make a complaint to the Commonwealth Ombudsman, or seek review of a reviewable decision by the AAT.[122]

5.124   In the trial sites, existing state and territory quality assurance frameworks and safeguards also apply.[123] The Department of Social Services is currently developing a number of options for a national quality assurance and safeguards framework or approach as part of the NDIS for consideration by COAG. It is anticipated that when the NDIS is fully rolled out, safeguards will include:

  • individualised strategies built into participant plans to help the participant, their family and support network to reduce the risk of harm, through mechanisms such as advocates, guardians and nominees;

  • arrangements that organisations put in place to protect participants, such as: staff supervision; internal complaints processes; quality frameworks;

  • system level safeguards such as: external review of decisions and actions that directly impact on a person, such as access to relevant tribunals or commissions; community visitors schemes; and police checks and working with children checks; and

  • community based safeguards that are available to all members of the community, such as: practitioner registration requirements; ombudsman offices; and anti-discrimination, human rights and consumer protection law.[124]

5.125   Issues concerning safeguards should be considered in the course of developing the national quality assurance and safeguards framework as part of the NDIS.

5.126   A number of stakeholders, including the Disability Services Commission of Victoria, advocated for the development of independent oversight of the NDIS, consisting of a body or bodies with complaint handling and investigative powers; legislative responsibilities to conduct monitoring, review and inquiry functions; and responsibility for promoting access to advocacy and supported decision-making.[125]

5.127   The ALRC does not make recommendations with respect to the specific safeguards that may be required in the context of the NDIS. Nor does the ALRC comment on systemic issues relating to safeguards under the NDIS raised by stakeholders, such as the funding of legal support for participants to seek administrative review of NDIA decisions.[126]

5.128   However, there are two matters the ALRC considers might be reviewed in the context of the NDIS quality assurance and safeguards framework.

5.129   First, the NSW Government observed that there are provisions in the Guardianship Act 1987 (NSW) that prohibit the appointment of paid carers and other persons with a conflict of interest as substitute decision makers.[127] It submitted that if such appointments were allowed under the Commonwealth model, there would need to be appropriate supervision and support from an independent body, with powers to seek the removal of supporters and representatives if required.[128] At present, under the NDIS Act, the CEO has power to cancel or suspend the appointment of a nominee for a range of reasons,[129] including on the request of the participant and where there are reasonable grounds to believe that the person is likely to cause, ‘physical, mental or financial harm to the participant’.[130] This may be sufficient, but might be reviewed.

5.130    Secondly, AGAC raised concerns about the operation of s 65 of the NDIS Act. This provision is said to prevent a guardianship tribunal from having access to information held by the NDIA, when this information may be critical to the tribunal’s consideration of whether a guardianship or administration order is needed.[131] This provision may also require review.