‘Well overdue’: Criminal referrals, $15m fines for NDIS providers

NDIS providers could be hit with $15 million fines if they hurt or injure a participant in their care under the next tranche of Bill Shorten’s changes, which will ramp up criminal consequences to protect people using the scheme.

Shorten, the NDIS minister, said the proposed penalties would bring the punishment for harming NDIS users into line with the maximum penalty for harming a worker. Previously, he said, workplace health and safety legislation valued a worker’s life at 38 times that of a scheme participant.

“These changes are well overdue”: NDIS Minister Bill Shorten.Credit: Simon Schluter

“What we seek to do is to increase the criminal penalties, the maximum penalties, from $400,000 a year, to in excess of $15 million, where someone has hurt or injured a participant,” Shorten said on Monday.

The scheme’s watchdog, the NDIS Quality and Safeguards Commission, will be given greater powers to ban people who promote false products online. It will also be able to refer providers for criminal prosecution for the first time if they seriously fail to comply with conditions.

The measures will increase the enforcement capacity of the commission, which has brought only two civil cases under the NDIS Act in its six-year history.

The most recent case, finalised in April, forced regional NSW provider LiveBetter to pay $1.8 million after a young woman died from burns that she suffered while taking a bath in its care.

It was found to have breached the NDIS Act on 17 occasions and the judge said there were “no words to properly express the degree of the harm suffered”. The $1.8 million penalty is the biggest handed to a disability provider for breaching the NDIS Act, and was issued by the judge as a deterrent to both LiveBetter and other providers.

But the proposed laws will allow for significantly larger sums and Shorten said he hoped it would mean the end of unscrupulous practices in the $44 billion scheme, one of the most expensive government programs.

“These changes are well overdue to ensure the watchdog has the powers it needs to keep dodgy providers out of the NDIS for good,” Shorten said.

“This is a legislative message from the parliament of Australia to the courts, that we want to give you the scope to issue much bigger fines for people who engage in egregious conduct.”

The tougher penalties, stricter regulatory requirements and criminal offences will be introduced in legislation. Shorten said consultation on the laws would ramp up in November, as he seeks to push through as many promised changes as possible before leaving parliament in February.

“I love the NDIS. I bleed NDIS. I want to make sure that the people in the scheme are safe, that they are getting quality support,” he said.

Shorten said both the disability royal commission and NDIS review had called for the safety commission’s powers to be strengthened with more active monitoring and enforcement.

His previous tranche of legislation, which passed in August, introduced an “in and out” list that for the first time clearly outlined what the scheme would and would not fund.

Other major changes include scrapping the diagnosis list, which currently determines eligibility, and giving people longer plans with capped budgets that release money in intervals.

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