An Act to establish the National Disability Insurance Scheme, and for related purposes
Chapter 1—Introduction
Part 1—Preliminary
1 Short title
This Act may be cited as the National Disability Insurance Scheme Act 2013.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
| Commencement information |
| Column 1 | Column 2 | Column 3 |
| Provision(s) | Commencement | Date/Details |
| 1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 28 March 2013 |
| 2. Sections 3 to 12 | The day after this Act receives the Royal Assent. | 29 March 2013 |
| 3. Chapters 2 and 3 | A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 1 July 2013 (see F2013L00994) |
| 4. Chapter 4, Part 1, Division 1 | A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 1 July 2013 (see F2013L00994) |
| 5. Chapter 4, Part 1, Divisions 2 and 3 | The day after this Act receives the Royal Assent. | 29 March 2013 |
| 6. Chapter 4, Parts 2 and 3 | The day after this Act receives the Royal Assent. | 29 March 2013 |
| 7. Chapter 4, Parts 4, 5 and 6 | A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 1 July 2013 (see F2013L00994) |
| 8. Chapter 5 | A day or days to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period. | 1 July 2013 (see F2013L00994) |
| 9. Chapters 6 and 7 | The day after this Act receives the Royal Assent. | 29 March 2013 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
Part 2—Objects and principles
3 Objects of Act
(1) The objects of this Act are to:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
(b) provide for the National Disability Insurance Scheme in Australia; and
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(f) facilitate the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
(h) raise community awareness of the issues that affect the social and economic participation of people with disability, and facilitate greater community inclusion of people with disability; and
(i) in conjunction with other laws, give effect to certain obligations that Australia has as a party to:
(i) the International Covenant on Civil and Political Rights done at New York on 16 December 1966 ([1980] ATS 23); and
(ii) the International Covenant on Economic, Social and Cultural Rights done at New York on 16 December 1966 ([1976] ATS 5); and
(iii) the Convention on the Rights of the Child done at New York on 20 November 1989 ([1991] ATS 4); and
(iv) the Convention on the Elimination of All Forms of Discrimination Against Women done at New York on 18 December 1979 ([1983] ATS 9); and
(v) the International Convention on the Elimination of All Forms of Racial Discrimination done at New York on 21 December 1965 ([1975] ATS 40).
Note: In 2013, the text of a Convention or Covenant in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
(2) These objects are to be achieved by:
(a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme launch; and
(b) adopting an insurance‑based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and
(c) establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.
(3) In giving effect to the objects of the Act, regard is to be had to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme; and
(c) the broad context of disability reform provided for in:
(i) the National Disability Strategy 2010‑2020 as endorsed by COAG on 13 February 2011; and
(ii) the Carer Recognition Act 2010; and
(d) the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the National Disability Insurance Scheme.
4 General principles guiding actions under this Act
(1) People with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development.
(2) People with disability should be supported to participate in and contribute to social and economic life to the extent of their ability.
(3) People with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime.
(4) People with disability should be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports.
(5) People with disability should be supported to receive reasonable and necessary supports, including early intervention supports.
(6) People with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation.
(7) People with disability have the same right as other members of Australian society to pursue any grievance.
(8) People with disability have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives, to the full extent of their capacity.
(9) People with disability should be supported in all their dealings and communications with the Agency and the Commission so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs.
(10) People with disability should have their privacy and dignity respected.
(11) Reasonable and necessary supports for people with disability should:
(a) support people with disability to pursue their goals and maximise their independence; and
(b) support people with disability to live independently and to be included in the community as fully participating citizens; and
(c) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment.
(12) The role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected.
(13) The role of advocacy in representing the interests of people with disability is to be acknowledged and respected, recognising that advocacy supports people with disability by:
(a) promoting their independence and social and economic participation; and
(b) promoting choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(c) maximising independent lifestyles of people with disability and their full inclusion in the community.
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) Innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of supports to people with disability are to be promoted.
(16) Positive personal and social development of people with disability, including children and young people, is to be promoted.
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to:
(a) the progressive implementation of the National Disability Insurance Scheme; and
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.
5 General principles guiding actions of people who may do acts or things on behalf of others
It is the intention of the Parliament that, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as practicable, in accordance with both the general principles set out in section 4 and the following principles:
(a) people with disability should be involved in decision making processes that affect them, and where possible make decisions for themselves;
(b) people with disability should be encouraged to engage in the life of the community;
(c) the judgements and decisions that people with disability would have made for themselves should be taken into account;
(d) the cultural and linguistic circumstances, and the gender, of people with disability should be taken into account;
(e) the supportive relationships, friendships and connections with others of people with disability should be recognised;
(f) if the person with disability is a child—the best interests of the child are paramount, and full consideration should be given to the need to:
(i) protect the child from harm; and
(ii) promote the child’s development; and
(iii) strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.
6 Agency may provide support and assistance
To support people with disability to exercise choice and control in the pursuit of their goals, the Agency may provide support and assistance (including financial assistance) to prospective participants and participants in relation to doing things or meeting obligations under, or for the purposes of, this Act.
Note: For example, the Agency might assist a participant to prepare the participant’s statement of goals and aspirations by assisting the participant to clarify his or her goals, objectives and aspirations.
7 Provision of notice, approved form or information under this Act etc.
(1) The contents of any notice, approved form or information given under this Act, the regulations or the National Disability Insurance Scheme rules to a person with disability must be explained by the giver of the notice, approved form or information to the maximum extent possible to the person in the language, mode of communication and terms which that person is most likely to understand.
(2) An explanation given under subsection (1) must be given both orally and in writing if reasonably practicable.
Part 3—Simplified outline
8 Simplified outline
The following is a simplified outline of this Act:
This Act provides for the National Disability Insurance Scheme.
The National Disability Insurance Scheme comprises:
(a) the provision of services or activities that are in the nature of coordination, strategic or referral services or activities (Chapters 2 and 3); and
(b) funding for persons or entities to enable them to assist people with disability to participate in economic and social life (Chapter 2); and
(c) individual plans under which reasonable and necessary supports will be funded for certain people, called participants (Chapter 3).
This Act includes administrative provisions supporting the operation of the National Disability Insurance Scheme (Chapters 4 and 5), such as:
(a) provisions to ensure the National Disability Insurance Scheme’s integrity, including limited powers to obtain information, and requirements relating to protection of information; and
(b) provisions relating to children; and
(c) provisions for nominees; and
(d) provisions for review of decisions; and
(e) provisions about the treatment of compensation.
This Act also provides for the regulation of persons and entities who provide supports and services to people with disability under the National Disability Insurance Scheme. It also regulates supports and services provided outside the National Disability Insurance Scheme in certain circumstances.
Depending on where a person with disability lives, he or she may receive supports or services from registered providers of supports (Part 3 of Chapter 4) or from registered NDIS providers (Part 3A of Chapter 4). Supports and services may also be received from providers who are not registered.
This Act also provides for the establishment of the National Disability Insurance Scheme Launch Transition Agency (Chapter 6).
The functions of the Agency include delivering the National Disability Insurance Scheme.
The Agency also has more general functions, such as:
(a) developing and enhancing the disability sector, including by facilitating innovation, research and contemporary best practice in the sector; and
(b) building community awareness of disabilities and the social contributors to disabilities.
Chapter 6 also:
(a) establishes the Board of the Agency; and
(b) establishes an Independent Advisory Council; and
(c) provides for the Chief Executive Officer and staff of the Agency; and
(d) provides for reporting and financial matters.
The NDIS Quality and Safeguards Commission and the office of the NDIS Quality and Safeguards Commissioner are also established by this Act (Chapter 6A).
The functions of the Commissioner include:
(a) functions relating to the quality and safety of services and supports provided to people with disability; and
(b) registering and overseeing the operation of NDIS providers; and
(c) managing and resolving complaints about NDIS providers; and
(d) providing leadership in relation to behaviour supports; and
(e) establishing, operating and maintaining the NDIS worker screening database (Chapter 6B).
Chapter 7 includes provisions relating to general matters, such as:
(a) debts; and
(b) review of the Act; and
(c) legislative instruments.
Part 4—Definitions
9 Definitions
In this Act:
access request has the meaning given by section 18.
Advisory Council means the Independent Advisory Council established by section 143.
Agency means the National Disability Insurance Scheme Launch Transition Agency established by section 117.
Agency officer means:
(a) a member of the staff of the Agency under section 169; or
(b) a person assisting the Agency under section 170.
annual financial sustainability report means a report prepared under subsection 180B(1).
approved quality auditor means a person or body approved by the Commissioner under section 73U.
banning order means an order made under section 73ZN.
behaviour support function has the meaning given by section 181H.
Board means the Board of the Agency established by section 123.
Board member means a member of the Board (and includes the Chair).
carer means an individual who:
(a) provides personal care, support and assistance to another individual who needs it because that other individual is a person with disability; and
(b) does not provide the care, support and assistance:
(i) under a contract of service or a contract for the provision of services; or
(ii) in the course of doing voluntary work for a charitable, welfare or community organisation; or
(iii) as part of the requirements of a course of education or training.
centrelink program has the same meaning as in the Human Services (Centrelink) Act 1997.
CEO means the Chief Executive Officer of the Agency.
Chair means the Chair of the Board.
child means a person who is under 18 years of age.
civil penalty provision has the same meaning as in the Regulatory Powers Act.
COAG means the Council of Australian Governments.
Commission means the NDIS Quality and Safeguards Commission established by section 181A.
Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission referred to in section 181C.
Commission officer means:
(a) a member of the staff of the Commission under section 181U; or
(b) a person assisting the Commissioner under section 181W.
compensation has the meaning given by section 11.
complaints functions has the meaning given by section 181G.
compliance notice means a notice given under section 73ZM.
core functions has the meaning given by section 181E.
correspondence nominee means a person who is appointed as the correspondence nominee of a participant under section 87.
cover, in relation to an enterprise agreement, has the same meaning as in the Fair Work Act 2009.
decision‑maker for a reviewable decision means:
(a) for a reviewable decision referred to in column 1 of the table in subsection 99(1)—the person referred to in column 3 of that table in relation to that decision; or
(b) for a reviewable decision specified in the National Disability Insurance Scheme rules for the purposes of subsection 99(2)—the person specified in the rules as the decision‑maker for that decision.
developmental delay means a delay in the development of a child under 6 years of age that:
(a) is attributable to a mental or physical impairment or a combination of mental and physical impairments; and
(b) results in substantial reduction in functional capacity in one or more of the following areas of major life activity:
(i) self‑care;
(ii) receptive and expressive language;
(iii) cognitive development;
(iv) motor development; and
(c) results in the need for a combination and sequence of special interdisciplinary or generic care, treatment or other services that are of extended duration and are individually planned and coordinated.
disclose, in relation to information in the NDIS worker screening database, includes provide electronic access to the information.
enterprise agreement has the same meaning as in the Fair Work Act 2009.
enters into an agreement to give up his or her right to compensation: a participant or prospective participant enters into an agreement to give up his or her right to compensation if he or she:
(a) enters into an agreement to waive his or her right to compensation; or
(b) enters into an agreement to withdraw his or her claim for compensation.
entity means a partnership or an unincorporated association.
entry, in relation to a person and a residential care service, has the same meaning as in the Aged Care Act 1997.
FaHCSIA agreement means the enterprise agreement known as the Department of Families, Housing, Community Services and Indigenous Affairs Enterprise Agreement 2012‑2014 approved on 24 April 2012 in decision [2012] FWAA 3549.
Finance Minister means the Minister administering the Public Governance, Performance and Accountability Act 2013.
financial institution means a corporation that is an ADI for the purposes of the Banking Act 1959.
general supports has the meaning given by subsection 13(2).
grace period has the meaning given by subsection 40(2).
holder, in relation to a visa, has the same meaning as in the Migration Act 1958.
home care has the same meaning as in the Aged Care Act 1997.
host jurisdiction has the meaning given by section 10.
host jurisdiction Minister for a host jurisdiction means a Minister of the host jurisdiction who is a member of the Ministerial Council.
independent advocate, in relation to a person with disability, means a person who:
(a) is independent of the Agency, the Commission and any NDIS providers providing supports or services to the person with disability; and
(b) provides independent advocacy for the person with disability, to assist the person with disability to exercise choice and control and to have their voice heard in matters that affect them; and
(c) acts at the direction of the person with disability, reflecting the person with disability’s expressed wishes, will, preferences and rights; and
(d) is free of relevant conflicts of interest.
key personnel has the meaning given by section 11A.
managing the funding for supports under a participant’s plan has the meaning given by section 42.
medicare program has the same meaning as in the Human Services (Medicare) Act 1973.
meets the access criteria has the meaning given by section 21.
meets the age requirements has the meaning given by section 22.
meets the disability requirements has the meaning given by section 24.
meets the early intervention requirements has the meaning given by section 25.
meets the residence requirements has the meaning given by section 23.
Ministerial Council means a body:
(a) that consists of Ministers of the Commonwealth, States and Territories; and
(b) that has been designated by COAG as having responsibilities relating to the National Disability Insurance Scheme.
National Disability Insurance Scheme means:
(a) the arrangements set out in Chapter 2; and
(b) the arrangements set out in Chapter 3 in relation to people who meet the residence requirements because of their residence in a prescribed area and meet the age requirements (if any) in relation to a prescribed area; and
(c) the arrangements referred to in paragraph (b) as they apply when those arrangements are not limited on the basis of residence in a prescribed area.
National Disability Insurance Scheme launch means:
(a) the arrangements set out in Chapter 2; and
(b) the arrangements set out in Chapter 3 in relation to people who meet the residence requirements because of their residence in a prescribed area and meet the age requirements (if any) in relation to the prescribed area.
National Disability Insurance Scheme rules means the rules mentioned in section 209.
NDIS amount means an amount paid under the National Disability Insurance Scheme in respect of reasonable and necessary supports funded under a participant’s plan.
NDIS Code of Conduct means the National Disability Insurance Scheme rules made for the purposes of section 73V.
NDIS Practice Standards means the National Disability Insurance Scheme rules made for the purposes of section 73T.
NDIS provider means:
(a) a person (other than the Agency) who receives:
(i) funding under the arrangements set out in Chapter 2; or
(ii) NDIS amounts (other than as a participant); or
(b) a person or entity:
(i) who provides supports or services to people with disability other than under the National Disability Insurance Scheme; and
(ii) who is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph.
NDIS Provider Register means the register maintained under section 73ZS.
NDIS worker screening check means an assessment, under an NDIS worker screening law, of whether a person who works, or seeks to work, with people with disability poses a risk to such people.
NDIS worker screening database means the database established under section 181Y.
NDIS worker screening law means a law of a State or Territory determined in an instrument under subsection 10B(1).
nominee means the correspondence nominee of a participant or the plan nominee of a participant.
otherwise engaged includes engaged on a voluntary basis.
paid work means work for financial gain or reward (whether as an employee, a self‑employed person or otherwise).
parent: without limiting who is a parent of anyone for the purposes of this Act, a person is the parent of another person if the other person is a child of the person within the meaning of the Family Law Act 1975.
parental responsibility has the meaning given by section 75.
participant means a person who is a participant in the National Disability Insurance Scheme launch (see sections 28, 29 and 30).
participant’s impairment means an impairment in relation to which the participant meets the disability requirements, or the early intervention requirements, to any extent.
participant’s statement of goals and aspirations has the meaning given by subsection 33(1).
participating jurisdiction has the meaning given by section 10A.
permanent visa has the same meaning as in the Migration Act 1958.
plan, for a participant, means the participant’s plan that is in effect under section 37.
plan management request has the meaning given by subsection 43(1).
plan nominee means a person who is appointed as a plan nominee of a participant under section 86.
prescribed area means an area prescribed by the National Disability Insurance Scheme rules for the purposes of paragraph 22(2)(a) or subsection 23(3).
Principal Member means the Principal Member of the Advisory Council.
prospective participant means a person in relation to whom an access request has been made but not yet decided.
prospective participant’s impairment means an impairment in relation to which the prospective participant claims to meet the disability requirements, or the early intervention requirements, to any extent.
protected Agency information means:
(a) information about a person that is or was held in the records of the Agency; or
(b) information to the effect that there is no information about a person held in the records of the Agency.
protected Commission information means:
(a) information about a person that is or was held in the records of the Commission; or
(b) information to the effect that there is no information about a person held in the records of the Commission.
protected SCV holder: a person is a protected SCV holder if:
(a) the person was in Australia on 26 February 2001, and was a special category visa holder on that day; or
(b) the person had been in Australia for a period of, or for periods totalling, 12 months during the 2 years immediately before 26 February 2001, and returned to Australia after that day.
recoverable amount has the meaning given by sections 106 and 107.
registered means registered under section 73E.
registered NDIS provider means a person or entity who is registered under section 73E.
registered plan management provider means:
(a) for a provider providing supports to a participant in a participating jurisdiction—an NDIS provider who is registered to manage the funding for supports under plans as mentioned in paragraph 73E(2)(a); or
(b) otherwise—a registered provider of supports who is approved in relation to managing the funding for supports under plans as mentioned in paragraph 70(1)(a).
registered provider of supports means a person or entity approved under section 70 as a registered provider of supports.
registration and reportable incident functions has the meaning given by section 181F.
Regulatory Powers Act means the Regulatory Powers (Standard Provisions) Act 2014.
reportable incident has the meaning given by subsections 73Z(4) and (5).
residential care service has the same meaning as in the Aged Care Act 1997.
restrictive practice means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability.
reviewable decision has the meaning given by subsections 99(1) and (2).
review date of a participant’s plan means the date specified in the plan under paragraph 33(2)(c).
reviewer has the meaning given by subsection 100(5).
reviewing actuary means the actuary who is nominated under section 180D.
scheme actuary means the actuary who is nominated under section 180A.
special category visa has the same meaning as in the Migration Act 1958.
statement of participant supports has the meaning given by subsection 33(2).
supports includes general supports.
10 Definition of host jurisdiction
The Minister may, by legislative instrument, specify that a State or Territory is a host jurisdiction, with the agreement of that State or Territory.
Note: Section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument (see subsection 44(1) of that Act).
10A Definition of participating jurisdiction
The Minister may, by legislative instrument, specify that a host jurisdiction is a participating jurisdiction, with the agreement of that host jurisdiction.
Note: Section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument (see subsection 44(1) of that Act).
10B Definition of NDIS worker screening law
(1) The Minister may, by legislative instrument, determine a law of a State or Territory for the purposes of the definition of NDIS worker screening law in section 9, with the agreement of that State or Territory.
Note: Section 42 (disallowance) of the Legislation Act 2003 does not apply to the instrument (see subsection 44(1) of that Act).
(2) Before determining a law of a State or Territory, the Minister must be satisfied that the law establishes a scheme for the screening of workers for purposes including the National Disability Insurance Scheme.
11 Definitions relating to compensation
(1) In this Act:
compensation means a payment (with or without admission of liability) in respect of:
(a) compensation or damages in respect of personal injury; or
(b) personal injury, under a scheme of insurance or compensation under a Commonwealth, State or Territory law, including a payment under a contract entered into under such a scheme; or
(c) personal injury, in settlement of a claim for damages or a claim under such an insurance scheme;
that is wholly or partly in respect of the cost of supports that may be provided to a participant (whether or not specifically identified as such). It does not matter whether the payment is made directly to the person who sustained the personal injury or to another person in respect of that person.
(2) A payment referred to in subsection (1) may be:
(a) in the form of a lump sum or in the form of a series of periodic payments; and
(b) made within or outside Australia.
(3) In this Act, a reference to an insurer who is, under a contract of insurance, liable to indemnify a compensation payer or a potential compensation payer includes a reference to an authority of a State or Territory:
(a) that is liable to indemnify a compensation payer or a potential compensation payer against such a liability, whether under a contract, law or otherwise; or
(b) that determines to make a payment to indemnify a compensation payer or a potential compensation payer against such a liability, whether or not the authority is liable to do so.
11A Definition of key personnel
(1) Each of the following is one of the key personnel of a person or entity:
(a) a member of the group of persons who is responsible for the executive decisions of the person or entity;
(b) any other person who has authority or responsibility for (or significant influence over) planning, directing or controlling the activities of the person or entity.
(2) Without limiting paragraph (1)(a), a reference in that paragraph to a person who is responsible for the executive decisions of a person or entity includes:
(a) if the person or entity is a body corporate that is incorporated, or taken to be incorporated, under the Corporations Act 2001—a director of the body corporate for the purposes of that Act; and
(b) in any other case—a member of the person’s or entity’s governing body.
Part 5—Ministerial Council
12 Ministerial Council functions etc.
(1) The Ministerial Council is to:
(a) consider policy matters that relate to the National Disability Insurance Scheme or arise under this Act; and
(b) advise the Minister about such matters; and
(c) make recommendations to COAG about such matters.
(2) The advice and recommendations must not relate to a particular individual.
(3) The Minister must consult the Ministerial Council about policy matters that relate to the National Disability Insurance Scheme or arise under this Act.
Chapter 2—Assistance for people with disability and others
13 Agency may provide coordination, strategic and referral services etc. to people with disability
(1) The Agency may provide general supports to, or in relation to, people with disability who are not participants.
Note: Chapter 3 deals with the provision of general supports to, or in relation to, participants.
(2) In this Act:
general support means:
(a) a service provided by the Agency to a person; or
(b) an activity engaged in by the Agency in relation to a person;
that is in the nature of a coordination, strategic or referral service or activity, including a locally provided coordination, strategic or referral service or activity.
14 Agency may provide funding to persons or entities
The Agency may provide assistance in the form of funding for persons or entities:
(a) for the purposes of enabling those persons or entities to assist people with disability to:
(i) realise their potential for physical, social, emotional and intellectual development; and
(ii) participate in social and economic life; and
(b) otherwise in the performance of the Agency’s functions.
15 Agency may provide information
(1) The Agency may provide information about the following:
(a) matters relevant to the National Disability Insurance Scheme;
(b) the functions of the Agency.
(2) The Agency must use its best endeavours to provide timely and accurate information to people with disability and other people in order to assist them in making informed decisions about matters relevant to the National Disability Insurance Scheme.
16 Agency may assist in relation to doing things under Chapter
The Agency may provide support and assistance to people in relation to doing things under, or for the purposes of, this Chapter.
17 National Disability Insurance Scheme rules
The National Disability Insurance Scheme rules may prescribe matters for and in relation to this Chapter.
Chapter 3—Participants and their plans
Part 1A—Principles
17A Principles relating to the participation of people with disability
(1) People with disability are assumed, so far as is reasonable in the circumstances, to have capacity to determine their own best interests and make decisions that affect their own lives.
(2) People with disability will be supported in their dealings and communications with the Agency so that their capacity to exercise choice and control is maximised.
(3) The National Disability Insurance Scheme is to:
(a) respect the interests of people with disability in exercising choice and control about matters that affect them; and
(b) enable people with disability to make decisions that will affect their lives, to the extent of their capacity; and
(c) support people with disability to participate in, and contribute to, social and economic life, to the extent of their ability.
Part 1—Becoming a participant
18 Person may make a request to become a participant
A person may make a request (an access request) to the Agency to become a participant in the National Disability Insurance Scheme launch.
Note: Once a person becomes a participant, the CEO must commence to facilitate the preparation of his or her plan (see section 32).
19 Matters relating to access requests
(1) An access request must:
(a) be in the form (if any) approved by the CEO; and
(b) include any information, and be accompanied by any documents, required by the CEO; and
(c) certify that it includes all the information, and is accompanied by all the documents, required as mentioned in paragraph (b) that are in the possession or control of the person.
Note: The CEO is not required to make a decision on the access request if this section is not complied with (see section 197).
(2) If:
(a) a person has made an access request; and
(b) the CEO decides that the person does not meet the access criteria, or is taken to have so decided because of subsection 21(3);
the person may make another access request at any time, unless at that time either of the following has been commenced, but not finally determined:
(c) a review (the initial review) under subsection 100(5) of the CEO’s decision;
(d) a review under section 103 of a decision on the initial review.
20 CEO must consider and decide access requests
If a person (the prospective participant) makes an access request, the CEO must, within 21 days of receiving the access request:
(a) decide whether or not the prospective participant meets the access criteria; or
(b) make one or more requests under subsection 26(1).
21 When a person meets the access criteria
(1) A person meets the access criteria if:
(a) the CEO is satisfied that the person meets the age requirements (see section 22); and
(b) the CEO is satisfied that, at the time of considering the request, the person meets the residence requirements (see section 23); and
(c) the CEO is satisfied that, at the time of considering the request:
(i) the person meets the disability requirements (see section 24); or
(ii) the person meets the early intervention requirements (see section 25).
(2) If the CEO is not satisfied as mentioned in subsection (1), the person meets the access criteria if the CEO is satisfied of the following:
(a) at the time of considering the request, the person satisfies the requirements in relation to residence prescribed as mentioned in subsection 23(3) (whether or not the person also satisfies the requirements mentioned in subsection 23(1));
(b) the person:
(i) was receiving supports at the time of considering the request or, if another time is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph, at that other time; and
(ii) received the supports throughout the period (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph; and
(iii) received the supports under a program prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph;
(c) if the person becomes a participant, the person would not be entitled to receive the supports referred to in paragraph (b), or equivalent supports.
(3) The CEO is taken to have decided that the prospective participant does not meet the access criteria if:
(a) the CEO does not do a thing referred to in paragraph 20(a) or (b) within the 21‑day period referred to in section 20; or
(b) if subsection 26(2) applies—the CEO does not do one of the things referred to in that subsection within the 14‑day period referred to in that subsection.
Note 1: The periods may be extended under National Disability Insurance Scheme rules made under section 204.
Note 2: Notice of a decision that the CEO is taken to have made must be given because of subsection 100(1) and will be automatically reviewed because of subsection 100(5).
22 Age requirements
(1) A person meets the age requirements if:
(a) the person was aged under 65 when the access request in relation to the person was made; and
(b) the person satisfies any other requirements in relation to age that are prescribed by the National Disability Insurance Scheme rules.
(2) Without limiting paragraph (1)(b), National Disability Insurance Scheme rules made for the purposes of that paragraph:
(a) may prescribe that a person must be a prescribed age on a prescribed date or a date in a prescribed period only if the person resides in a prescribed area of Australia; and
(b) may prescribe different ages and different dates in relation to different areas of Australia.
23 Residence requirements
(1) A person meets the residence requirements if the person:
(a) resides in Australia; and
(b) is one of the following:
(i) an Australian citizen;
(ii) the holder of a permanent visa;
(iii) a special category visa holder who is a protected SCV holder; and
(c) satisfies the other requirements that are prescribed by the National Disability Insurance Scheme rules.
(2) In deciding whether or not a person resides in Australia, regard must be had to:
(a) the nature of the accommodation used by the person in Australia; and
(b) the nature and extent of the family relationships the person has in Australia; and
(c) the nature and extent of the person’s employment, business or financial ties with Australia; and
(d) the nature and extent of the person’s assets located in Australia; and
(e) the frequency and duration of the person’s travel outside Australia; and
(f) any other matter relevant to determining whether the person intends to remain permanently in Australia.
(3) Without limiting paragraph (1)(c), National Disability Insurance Scheme rules made for the purposes of that paragraph:
(a) may require that a person reside in a prescribed area of Australia on a prescribed date or a date in a prescribed period in order to meet the residence requirements; and
(b) may require that a person has resided in a prescribed area for a prescribed period in order to meet the residence requirements; and
(c) may require that a person continue to reside in a prescribed area of Australia in order to meet the residence requirements; and
(d) may require that a person satisfy a prescribed requirement relating to either or both of the following:
(i) the purpose for which the person resides in a particular geographical area;
(ii) exceptional circumstances applying in relation to the person.
24 Disability requirements
(1) A person meets the disability requirements if:
(a) the person has a disability that is attributable to one or more intellectual, cognitive, neurological, sensory or physical impairments or to one or more impairments attributable to a psychiatric condition; and
(b) the impairment or impairments are, or are likely to be, permanent; and
(c) the impairment or impairments result in substantially reduced functional capacity to undertake, or psychosocial functioning in undertaking, one or more of the following activities:
(i) communication;
(ii) social interaction;
(iii) learning;
(iv) mobility;
(v) self‑care;
(vi) self‑management; and
(d) the impairment or impairments affect the person’s capacity for social or economic participation; and
(e) the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime.
(2) For the purposes of subsection (1), an impairment or impairments that vary in intensity may be permanent, and the person is likely to require support under the National Disability Insurance Scheme for the person’s lifetime, despite the variation.
25 Early intervention requirements
(1) A person meets the early intervention requirements if:
(a) the person:
(i) has one or more identified intellectual, cognitive, neurological, sensory or physical impairments that are, or are likely to be, permanent; or
(ii) has one or more identified impairments that are attributable to a psychiatric condition and are, or are likely to be, permanent; or
(iii) is a child who has developmental delay; and
(b) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by reducing the person’s future needs for supports in relation to disability; and
(c) the CEO is satisfied that provision of early intervention supports for the person is likely to benefit the person by:
(i) mitigating or alleviating the impact of the person’s impairment upon the functional capacity of the person to undertake communication, social interaction, learning, mobility, self‑care or self‑management; or
(ii) preventing the deterioration of such functional capacity; or
(iii) improving such functional capacity; or
(iv) strengthening the sustainability of informal supports available to the person, including through building the capacity of the person’s carer.
Note: In certain circumstances, a person with a degenerative condition could meet the early intervention requirements and therefore become a participant.
(2) The CEO is taken to be satisfied as mentioned in paragraphs (1)(b) and (c) if one or more of the person’s impairments are prescribed by the National Disability Insurance Scheme rules for the purposes of this subsection.
(3) Despite subsections (1) and (2), the person does not meet the early intervention requirements if the CEO is satisfied that early intervention support for the person is not most appropriately funded or provided through the National Disability Insurance Scheme, and is more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or through systems of service delivery or support services offered:
(a) as part of a universal service obligation; or
(b) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
26 Requests that the CEO may make
(1) The requests the CEO may make under this subsection after a prospective participant has made an access request (see paragraph 20(b)) are as follows:
(a) that the prospective participant, or another person, provide information that is reasonably necessary for deciding whether or not the prospective participant meets the access criteria;
(b) that the prospective participant do either or both of the following:
(i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.
(2) If:
(a) information or one or more reports are requested under subsection (1); and
(b) the information and each such report are received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested;
the CEO must, within 14 days after the last information or report is received:
(c) decide whether or not the prospective participant meets the access criteria; or
(d) make a further request under subsection (1).
(3) If:
(a) information or one or more reports are requested under subsection (1); and
(b) the information and each such report are not received by the CEO within 28 days, or such longer period as is specified in the request, after that information or report is requested;
the prospective participant is taken to have withdrawn the access request, unless the CEO is satisfied that it was reasonable for the prospective participant not to have complied with the request made by the CEO within that period.
27 National Disability Insurance Scheme rules relating to disability requirements and early intervention requirements
The National Disability Insurance Scheme rules may prescribe circumstances in which, or criteria to be applied in assessing whether:
(a) one or more impairments are, or are likely to be, permanent for the purposes of paragraph 24(1)(b) or subparagraph 25(a)(i) or (ii); or
(b) one or more impairments result in substantially reduced functional capacity of a person to undertake, or psychosocial functioning of a person in undertaking, one or more activities for the purposes of paragraph 24(1)(c); or
(c) one or more impairments affect a person’s capacity for social and economic participation for the purposes of paragraph 24(1)(d); or
(d) the provision of early intervention supports is likely to benefit a person by reducing the person’s future needs for supports in relation to disability for the purposes of paragraph 25(1)(b); or
(e) the provision of early intervention supports is likely to benefit a person by mitigating, alleviating or preventing the deterioration of the person’s functional capacity to undertake one or more of the activities for the purposes of subparagraph 25(1)(c)(i) or (ii), or improving such functional capacity for the purposes of subparagraph 25(1)(c)(iii); or
(f) the provision of early intervention supports is likely to benefit a person by strengthening the sustainability of the informal supports available to the person, including through building the capacity of the person’s carer for the purposes of subparagraph 25(1)(c)(iv).
28 When a person becomes a participant
(1) A person becomes a participant in the National Disability Insurance Scheme launch on the day the CEO decides that the person meets the access criteria.
(2) The CEO must give written notice of the decision to the participant, stating the date on which the person became a participant.
29 When a person ceases to be a participant
(1) A person ceases to be a participant in the National Disability Insurance Scheme launch when:
(a) the person dies; or
(b) the person enters a residential care service on a permanent basis, or starts being provided with home care on a permanent basis, and this first occurs only after the person turns 65 years of age; or
(c) the person’s status as a participant is revoked under section 30; or
(d) the person notifies the CEO in writing that he or she no longer wishes to be a participant.
Note: Residential care service and home care have the same meanings as in the Aged Care Act 1997.
(2) A person is not entitled to be paid NDIS amounts so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of a period after he or she ceased to be a participant.
30 Revocation of participant status
(1) The CEO may revoke a person’s status as a participant in the National Disability Insurance Scheme launch if:
(a) the CEO is satisfied that the person does not meet the residence requirements (see section 23); or
(b) the CEO is satisfied that the person does not meet at least one of the following:
(i) the disability requirements (see section 24);
(ii) the early intervention requirements (see section 25).
(2) The CEO must give written notice of the decision to the participant, stating the date on which the revocation takes effect.
Part 2—Participants’ plans
Division 1—Principles relating to plans
31 Principles relating to plans
The preparation, review and replacement of a participant’s plan, and the management of the funding for supports under a participant’s plan, should so far as reasonably practicable:
(a) be individualised; and
(b) be directed by the participant; and
(c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the participant; and
(d) where possible, strengthen and build capacity of families and carers to support participants who are children; and
(da) if the participant and the participant’s carers agree—strengthen and build the capacity of families and carers to support the participant in adult life; and
(e) consider the availability to the participant of informal support and other support services generally available to any person in the community; and
(f) support communities to respond to the individual goals and needs of participants; and
(g) be underpinned by the right of the participant to exercise control over his or her own life; and
(h) advance the inclusion and participation in the community of the participant with the aim of achieving his or her individual aspirations; and
(i) maximise the choice and independence of the participant; and
(j) facilitate tailored and flexible responses to the individual goals and needs of the participant; and
(k) provide the context for the provision of disability services to the participant and, where appropriate, coordinate the delivery of disability services where there is more than one disability service provider.
Division 2—Preparing participants’ plans
32 CEO must facilitate preparation of participant’s plan
(1) If a person becomes a participant, the CEO must facilitate the preparation of the participant’s plan.
(2) The CEO must commence facilitating the preparation of the participant’s plan in accordance with the National Disability Insurance Scheme rules.
(3) If National Disability Insurance Scheme rules made for the purposes of subsection (2) do not require the CEO to commence facilitating the preparation of a participant’s plan within a prescribed period or in prescribed circumstances, the CEO must commence facilitating the preparation of the plan as soon as reasonably practicable, having regard to the obligations of the CEO under the rules to commence facilitating the preparation of other participants’ plans.
32A Rules about preparation of plans
(1) Without limiting subsection 32(2), National Disability Insurance Scheme rules made for the purposes of that subsection may require the CEO to commence facilitating the preparation of the plan of a participant included in a class prescribed by the rules:
(a) within a period prescribed by the rules; or
(b) in circumstances prescribed by the rules.
(2) Without limiting the classes that may be prescribed as mentioned in subsection (1), a class may be prescribed by reference to one or more of the following:
(a) whether the participant’s name is included on a prescribed waiting list;
(b) whether the participant is receiving support from a prescribed service provider or under a prescribed program;
(c) whether, when the participant first made an access request, he or she was not receiving supports other than informal supports in relation to his or her disability;
(d) the place of residence of the participant on a prescribed date or throughout a prescribed period;
(e) whether, when the participant first made an access request, he or she had left, or was reasonably likely to leave, school at a prescribed time or during a prescribed period;
(f) the participant’s age;
(g) other matters.
(3) Despite subsection 32(2) and subsection (1) of this section, if the CEO is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant’s plan at a particular time:
(a) the CEO may do so; and
(b) if doing so means that it is necessary not to commence facilitating the preparation of the plans of one or more other participants—the CEO may delay commencing such facilitation, so far as is reasonably necessary.
(4) The National Disability Insurance Scheme rules may prescribe matters to which the CEO is to have regard in deciding for the purposes of subsection (3) whether or not he or she is satisfied that, because of the urgency of the circumstances, it is appropriate to commence facilitating the preparation of a participant’s plan.
(5) If the CEO commences or delays facilitating the preparation of a participant’s plan in accordance with subsection (3), the CEO does not breach subsection 32(2), or National Disability Insurance Scheme rules made for the purposes of that subsection, in relation to the participants concerned.
(6) Without limiting subsection 32(2) of this section, National Disability Insurance Scheme rules made for the purposes of that subsection (including as mentioned in subsection (1) of this section) may do one or more of the following:
(a) prescribe a class by reference to a decision of the CEO about a matter prescribed by the rules;
(b) prescribe a period or circumstances by reference to a decision of the CEO;
(c) prescribe matters by reference to a decision of the CEO.
(7) The CEO does not have a duty to consider whether to exercise a discretion conferred upon the CEO by:
(a) subsection (3); or
(b) National Disability Insurance Scheme rules made for the purposes of subsection 32(2) (including as mentioned in subsection (1) of this section).
33 Matters that must be included in a participant’s plan
(1) A participant’s plan must include a statement (the participant’s statement of goals and aspirations) prepared by the participant that specifies:
(a) the goals, objectives and aspirations of the participant; and
(b) the environmental and personal context of the participant’s living, including the participant’s:
(i) living arrangements; and
(ii) informal community supports and other community supports; and
(iii) social and economic participation.
(2) A participant’s plan must include a statement (the statement of participant supports), prepared with the participant and approved by the CEO, that specifies:
(a) the general supports (if any) that will be provided to, or in relation to, the participant; and
(b) the reasonable and necessary supports (if any) that will be funded under the National Disability Insurance Scheme; and
(c) the date by which, or the circumstances in which, the Agency must review the plan under Division 4; and
(d) the management of the funding for supports under the plan (see also Division 3); and
(e) the management of other aspects of the plan.
(3) The supports that will be funded or provided under the National Disability Insurance Scheme may be specifically identified in the plan or described generally, whether by reference to a specified purpose or otherwise.
(4) The CEO must endeavour to decide whether or not to approve the statement of participant supports as soon as reasonably practicable, including what is reasonably practicable having regard to section 36 (information and reports).
(5) In deciding whether or not to approve a statement of participant supports under subsection (2), the CEO must:
(a) have regard to the participant’s statement of goals and aspirations; and
(b) have regard to relevant assessments conducted in relation to the participant; and
(c) be satisfied as mentioned in section 34 in relation to the reasonable and necessary supports that will be funded and the general supports that will be provided; and
(d) apply the National Disability Insurance Scheme rules (if any) made for the purposes of section 35; and
(e) have regard to the principle that a participant should manage his or her plan to the extent that he or she wishes to do so; and
(f) have regard to the operation and effectiveness of any previous plans of the participant.
(6) To the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only by:
(a) for supports provided to a participant in a participating jurisdiction—a registered NDIS provider; or
(b) otherwise—a registered provider of supports.
(7) A participant’s plan may include additional matters, including such additional matters as are prescribed by the National Disability Insurance Scheme rules.
Note: For example, a participant’s plan may include arrangements for ongoing contact with the Agency.
(8) A participant’s statement of goals and aspirations need not be prepared by the participant in writing, but if it is prepared other than in writing, the Agency must record it in writing.
Note: Section 38 requires a copy of a participant’s plan to be provided to him or her.
34 Reasonable and necessary supports
(1) For the purposes of specifying, in a statement of participant supports, the general supports that will be provided, and the reasonable and necessary supports that will be funded, the CEO must be satisfied of all of the following in relation to the funding or provision of each such support:
(a) the support will assist the participant to pursue the goals, objectives and aspirations included in the participant’s statement of goals and aspirations;
(b) the support will assist the participant to undertake activities, so as to facilitate the participant’s social and economic participation;
(c) the support represents value for money in that the costs of the support are reasonable, relative to both the benefits achieved and the cost of alternative support;
(d) the support will be, or is likely to be, effective and beneficial for the participant, having regard to current good practice;
(e) the funding or provision of the support takes account of what it is reasonable to expect families, carers, informal networks and the community to provide;
(f) the support is most appropriately funded or provided through the National Disability Insurance Scheme, and is not more appropriately funded or provided through other general systems of service delivery or support services offered by a person, agency or body, or systems of service delivery or support services offered:
(i) as part of a universal service obligation; or
(ii) in accordance with reasonable adjustments required under a law dealing with discrimination on the basis of disability.
(2) The National Disability Insurance Scheme rules may prescribe methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding whether or not he or she is satisfied as mentioned in any of paragraphs (1)(a) to (f).
35 National Disability Insurance Scheme rules for statement of participant supports
(1) The National Disability Insurance Scheme rules may make provision in connection with the funding or provision of reasonable and necessary supports or general supports, including but not limited to prescribing:
(a) methods or criteria to be applied, or matters to which the CEO is to have regard, in deciding, the reasonable and necessary supports or general supports that will be funded or provided under the National Disability Insurance Scheme; and
(b) reasonable and necessary supports or general supports that will not be funded or provided under the National Disability Insurance Scheme; and
(c) reasonable and necessary supports or general supports that will or will not be funded or provided under the National Disability Insurance Scheme for prescribed participants.
(2) The National Disability Insurance Scheme rules referred to in subsection (1) may relate to the manner in which supports are to be funded or provided and by whom supports are to be provided.
(4) The National Disability Insurance Scheme rules referred to in subsection (1) may relate to how to take into account:
(a) lump sum compensation payments that specifically include an amount for the cost of supports; and
(b) lump sum compensation payments that do not specifically include an amount for the cost of supports; and
(c) periodic compensation payments that the CEO is satisfied include an amount for the cost of supports.
(5) The National Disability Insurance Scheme rules referred to in subsection (1) may relate to how to take into account amounts that a participant or prospective participant did not receive by way of a compensation payment because he or she entered into an agreement to give up his or her right to compensation.
36 Information and reports for the purposes of preparing and approving a participant’s plan
(1) For the purposes of preparing a statement of participant supports, or deciding whether to approve a statement of participant supports, the CEO may make one or more requests under subsection (2).
(2) The requests the CEO may make are as follows:
(a) that the participant, or another person, provide information that is reasonably necessary for the purposes of preparing the statement of participant supports, or deciding whether to approve the statement of participant supports;
(b) that the participant do either or both of the following:
(i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.
(3) The CEO may prepare the statement of participant supports, or decide whether to approve a statement of participant supports, before all the information and reports requested under subsection (2) are received by the CEO, but must give the participant a reasonable opportunity to provide them.
Note: If information or reports are provided after the plan is approved, the plan can be reviewed and if necessary replaced.
37 When plan is in effect
(1) A participant’s plan comes into effect when the CEO has:
(a) received the participant’s statement of goals and aspirations from the participant; and
(b) approved the statement of participant supports.
(2) A participant’s plan cannot be varied after it comes into effect, but can be replaced under Division 4.
Note: Under Division 4, a participant may request a review of his or her plan at any time and may revise the participant’s statement of goals and aspirations at any time, which results in the replacement of the plan.
(3) A participant’s plan ceases to be in effect at the earlier of the following times:
(a) when it is replaced by another plan under Division 4;
(b) when the participant ceases to be a participant.
38 Copy of plan to be provided
The CEO must provide a copy of a participant’s plan to the participant within 7 days after the plan comes into effect.
39 Agency must comply with the statement of participant supports
The Agency must comply with the statement of participant supports in a participant’s plan.
40 Effect of temporary absence on plans
(1) A participant for whom a plan is in effect may be temporarily absent from Australia for the grace period for the absence without affecting the participant’s plan.
(2) The grace period for a temporary absence of a participant is:
(a) 6 weeks beginning when the participant leaves Australia; or
(b) if the CEO is satisfied that it is appropriate for the grace period to be longer than 6 weeks—such longer period as the CEO decides, having regard to any matters and applying any criteria prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
(3) If a participant for whom a plan is in effect is temporarily absent from Australia after the end of the grace period for the absence, the participant’s plan is suspended from the end of the grace period until the participant returns to Australia.
(4) For the purposes of this section, a person’s absence from Australia is temporary if, throughout the absence, the person does not cease to reside in Australia (within the meaning of paragraph 23(1)(a)).
41 Suspension of plans
(1) A statement of participant supports in a participant’s plan is suspended:
(a) as mentioned in subsection 40(3) (which deals with temporary absence from Australia); and
(b) as mentioned in subsection 105(2) (which deals with obtaining compensation).
(2) The effect of suspension of a statement of participant supports in a participant’s plan is that the plan remains in effect but, during the period of suspension:
(a) the person is not entitled to be paid NDIS amounts, so far as the amounts relate to reasonable and necessary supports that would otherwise have been funded in respect of that period; and
(b) the Agency is not required to provide or fund other supports under the plan, but is not prevented from doing so if the CEO considers it appropriate; and
(c) the participant is not entitled to request a review of the plan under subsection 48(1).
Division 3—Managing the funding for supports under participants’ plans
42 Meaning of managing the funding for supports under a participant’s plan
(1) For the purposes of this Act, managing the funding for supports under a participant’s plan means:
(a) purchasing the supports identified in the plan (including paying any applicable indirect costs, such as taxes, associated with the supports); and
(b) receiving and managing any funding provided by the Agency; and
(c) acquitting any funding provided by the Agency.
(2) For the purposes of the statement of participant supports in a participant’s plan, in specifying the management of the funding for supports under the plan as mentioned in paragraph 33(2)(d), the plan must specify that such funding is to be managed wholly, or to a specified extent, by:
(a) the participant; or
(b) a registered plan management provider; or
(c) the Agency; or
(d) the plan nominee.
43 Choice for the participant in relation to plan management
(1) A participant for whom a plan is in effect or is being prepared may make a request (a plan management request):
(a) that he or she manage the funding for supports under the plan wholly or to the extent specified in the request; or
(b) that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider he or she nominates; or
(c) that the funding for supports under the plan be managed wholly, or to the extent specified in the request, by a person specified by the Agency.
(2) A statement of participant supports in a participant’s plan must give effect to the plan management request other than as follows:
(a) if the participant is prevented from managing the funding for supports under the plan to any extent by section 44—the statement must make provision in accordance with subsection (3) of this section;
(b) if the participant has a plan nominee—the statement must provide that the funding for supports under the plan is to be managed in accordance with the terms of the plan nominee’s appointment.
(3) If the participant is prevented from managing the funding for supports under the plan wholly, or to a specified extent, by section 44, the statement of participant supports in the plan must provide that:
(a) the funding for supports under the plan is to be managed in accordance with the plan management request, to the extent that the participant is not prevented from managing it; and
(b) the remainder of the funding for supports under the plan is to be managed by:
(i) a registered plan management provider specified by the Agency; or
(ii) the Agency.
(4) If a participant does not make a plan management request, the statement of participant supports in the plan must provide that the funding for supports under the plan is to be managed by:
(a) a registered plan management provider specified by the Agency; or
(b) the Agency.
(5) If the funding for supports under a participant’s plan is to be managed to any extent by a registered plan management provider specified by the Agency, or by the Agency, the CEO must, so far as reasonably practicable, have regard to the wishes of the participant in specifying who is to manage the funding for supports under the plan to that extent.
44 Circumstances in which participant must not manage plan to specified extent
(1) The statement of participant supports in a participant’s plan must not provide that the participant is to manage the funding for supports under his or her plan to any extent if the participant is an insolvent under administration.
(1A) The statement of participant supports in a participant’s plan must not provide that a plan nominee is to manage the funding for supports under the participant’s plan to any extent if the plan nominee is an insolvent under administration.
(2) The statement of participant supports in a participant’s plan must not provide that the participant is to manage the funding for supports under his or her plan to a particular extent if the CEO is satisfied that management of the plan to that extent would:
(a) present an unreasonable risk to the participant; or
(b) permit the participant to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by a participant.
(2A) The statement of participant supports in a participant’s plan must not provide that a plan nominee is to manage the funding for supports under the participant’s plan to a particular extent if the CEO is satisfied that management of the plan to that extent would present an unreasonable risk to the participant.
(3) The National Disability Insurance Scheme rules may prescribe criteria the CEO is to apply and matters to which the CEO is to have regard in considering whether either of the following would present an unreasonable risk to the participant:
(a) a participant managing the funding for supports under the plan;
(b) a plan nominee managing the funding for supports under the plan.
45 Payment of NDIS amounts
(1) An NDIS amount that is payable to a participant, or to a person who is managing the funding for supports under a participant’s plan, is to be paid:
(a) at the time or times determined by the CEO in accordance with the National Disability Insurance Scheme rules; and
(b) in the manner (if any) prescribed by the National Disability Insurance Scheme rules.
(2) Without limiting paragraph (1)(b), the National Disability Insurance Scheme rules may provide that:
(a) an NDIS amount is to be paid to the credit of a bank account nominated and maintained by the person to whom it is to be paid; and
(b) an NDIS amount is not payable to the person until the person nominates an account.
46 Acquittal of NDIS amounts
(1) A participant who receives an NDIS amount, or a person who receives an NDIS amount on behalf of a participant, must spend the money in accordance with the participant’s plan.
(2) The National Disability Insurance Scheme rules may make provision for and in relation to the retention of records of NDIS amounts paid to participants and other persons, including requiring that prescribed records be retained for a prescribed period.
46A Protection of NDIS amounts
(1) An NDIS amount is absolutely inalienable, whether by way of, or in consequence of, sale, assignment, charge, execution, bankruptcy or otherwise.
(2) This section is subject to Part 1 of Chapter 7.
46B Garnishee orders
General rule
(1) A court must not make an order in the nature of a garnishee order in respect of an account with a financial institution if:
(a) one or more NDIS amounts for a particular participant have been paid to the credit of the account; and
(b) the account has been kept solely for the purpose of managing the funding for supports under the participant’s plan.
Exception
(2) However, a court may make an order in the nature of a garnishee order in respect of the account if:
(a) the order is made in favour of a person in relation to a debt that arose because of the person providing goods or services in relation to the participant; and
(b) the goods or services are reasonable and necessary supports specified in the participant’s plan.
Division 4—Reviewing and changing participants’ plans
47 Participant may change participant’s statement of goals and aspirations at any time
(1) A participant may give the CEO a changed version of the participant’s statement of goals and aspirations at any time.
Note: The participant may also request a review of his or her plan at any time under subsection 48(1) and the CEO may review a participant’s plan at any time under subsection 48(4).
(2) If a participant gives a changed version of the participant’s statement of goals and aspirations to the CEO, the plan is taken to be replaced by a new plan comprising:
(a) the changed version of the participant’s statement of goals and aspirations; and
(b) the statement of participant supports in the existing plan.
(3) The Agency must provide a copy of the new plan to the participant within 7 days of receiving the changed version of the participant’s statement of goals and aspirations.
48 Review of participant’s plan
(1) A participant may request that the CEO conduct a review of the participant’s plan at any time.
(2) The CEO must decide whether or not to conduct the review within 14 days after receiving the request. If the CEO does not make a decision within that period, he or she is taken to have decided not to conduct the review.
Note 1: The period may be extended under National Disability Insurance Scheme rules made under section 204.
Note 2: Notice of a decision that the CEO makes, or is taken to have made, must be given because of subsection 100(1), and a decision the CEO is taken to have made will be automatically reviewed because of subsection 100(5).
(3) If the CEO decides to conduct a review under subsection (1), the CEO must commence to facilitate the review within 14 days after so deciding and must complete the review as soon as reasonably practicable.
(4) The CEO may, on the CEO’s initiative, conduct a review of a participant’s plan at any time.
(5) The CEO must conduct a review of a participant’s plan before the plan’s review date and in the circumstances, if any, specified in the plan.
(6) The CEO must conduct a review of a participant’s plan in the circumstances (if any) prescribed by the National Disability Insurance Scheme rules.
49 Outcome of review
If the CEO conducts a review of a participant’s plan under section 48, the CEO must facilitate the preparation of a new plan with the participant in accordance with Division 2.
Note 1: If the participant does not wish to change the participant’s statement of goals and aspirations, the statement remains unchanged and forms part of the new plan.
Note 2: Because the new plan is prepared in accordance with Division 2, a decision to approve the statement of participant supports in the plan would be made under subsection 33(2) and be reviewable under subsection 99(1).
50 Information and reports for the purposes of reviewing a participant’s plan
(1) For the purposes of reviewing a participant’s plan, the CEO may make one or more requests under subsection (2).
(2) The requests the CEO may make are as follows:
(a) that the participant, or another person, provide information that is reasonably necessary for the purposes of reviewing the participant’s plan; or
(b) that the participant do either or both of the following:
(i) undergo an assessment and provide to the CEO the report, in the approved form, of the person who conducts the assessment;
(ii) undergo, whether or not at a particular place, a medical, psychiatric, psychological or other examination, conducted by an appropriately qualified person, and provide to the CEO the report, in the approved form, of the person who conducts the examination.
(3) The CEO may review a participant’s plan before all the information and reports requested under subsection (2) are received by the CEO, but must give the participant a reasonable opportunity to provide them.
Note: If information or reports are provided after the plan is reviewed, the plan can be reviewed again and if necessary replaced.
Chapter 4—Administration
Part 1—General matters
Division 1—Participants and prospective participants
51 Requirement to notify change of circumstances
(1) A participant or a prospective participant must notify the CEO if:
(a) an event or change of circumstances happens that affects, or might affect, his or her access request, status as a participant or plan; or
(b) the participant or prospective participant becomes aware that such an event or change of circumstances is likely to happen.
(2) The participant or prospective participant must notify the CEO:
(a) in the manner set out in a written notice given to him or her under section 52; and
(b) as soon as reasonably practicable after he or she becomes aware that the event or change of circumstances has happened or is likely to happen.
52 Requirements relating to notices
(1) The CEO must approve a manner of notification that a participant or prospective participant is to use when notifying the CEO in relation to an event or change of circumstances under section 51.
(2) The CEO must, by written notice, notify the participant or prospective participant of the approved manner of notification.
53 Power to obtain information from participants and prospective participants to ensure the integrity of the National Disability Insurance Scheme
(1) If the CEO has reasonable grounds to believe that a participant or a prospective participant has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the CEO may require the participant or prospective participant to give the information, or produce the document, to the Agency.
(2) The matters are as follows:
(a) the monitoring of supports funded for, or provided to, a participant;
(b) whether NDIS amounts paid to the participant or to another person have been spent in accordance with the participant’s plan;
(c) determining whether the participant was not entitled to be paid NDIS amounts because of the misleading statements or fraud of any person;
(d) whether the participant or other person has complied with section 46;
(e) whether the participant or prospective participant receives:
(i) supports or funding through a statutory compensation scheme or a statutory care or support scheme; or
(ii) any other disability or early intervention supports.
54 Written notice of requirement
(1) A requirement under section 53 must be made by written notice given to the person of whom the requirement is made.
(2) The notice must specify:
(a) the nature of the information or document that is required to be given or produced; and
(b) how the person is to give the information or produce the document; and
(c) the period within which the person is to give the information or produce the document to the Agency; and
(d) the Agency officer to whom the information is to be given or the document is to be produced; and
(e) that the notice is given under this section.
(3) The period specified under paragraph (2)(c) must be at least 14 days beginning on the day on which the notice is given.
Division 2—Other persons
55 Power of CEO to obtain information from other persons to ensure the integrity of the National Disability Insurance Scheme
(1) If the CEO has reasonable grounds to believe that a person other than a participant or a prospective participant has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the CEO may require the person to give the information, or produce the document, to the Agency.
(2) The matters are as follows:
(a) whether a prospective participant meets the access criteria;
(b) whether a participant continues to meet the access criteria;
(c) whether a person purporting to act on a person’s behalf for the purposes of this Act has the authority to do so;
(d) the preparation or review of a participant’s plan;
(e) the monitoring of supports funded for, or provided to, a participant;
(f) whether NDIS amounts paid to the participant or to another person have been spent in accordance with the participant’s plan;
(g) whether a participant or other person has complied with section 46;
(h) whether a participant receives:
(i) supports or funding through a statutory compensation scheme or a statutory care or support scheme; or
(ii) any other disability support;
(i) whether an applicant for approval as a registered provider of supports meets the criteria for approval;
(j) whether a registered provider of supports continues to meet the criteria for approval;
(k) the functions of the Agency.
55A Power of Commissioner to obtain information from other persons to ensure the integrity of the National Disability Insurance Scheme etc.
(1) If the Commissioner reasonably believes that a person, other than a prospective participant or a person receiving supports or services from an NDIS provider, has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the Commissioner may require the person to give the information, or produce the document, to the Commissioner.
(2) The matters are as follows:
(a) whether an NDIS provider is contravening subsection 73B(2) (requirement to be a registered NDIS provider);
(b) whether a person applying for registration under subsection 73E(1) satisfies the requirements mentioned in that subsection;
(c) whether a registered NDIS provider is meeting the conditions of registration mentioned in subsection 73F(1);
(d) whether an NDIS provider, or a person employed or otherwise engaged by an NDIS provider, is complying with the requirements of the NDIS Code of Conduct;
(e) if an NDIS provider, or other person, is subject to a banning order—whether the person is providing supports or services in contravention of the order;
(f) the functions of the Commissioner.
56 Written notice of requirement
(1) A requirement under section 55 or 55A must be made by written notice given to the person of whom the requirement is made.
(2) The notice must specify:
(a) the nature of the information or document that is required to be given or produced; and
(b) how the person is to give the information or produce the document; and
(c) the period within which the person is to give the information or produce the document to the Agency or Commissioner; and
(d) if the notice is given by the CEO—the Agency officer to whom the information is to be given or the document is to be produced; and
(da) if the notice is given by the Commissioner—the Commission officer to whom the information is to be given or the document is to be produced; and
(e) that the notice is given under this section.
(3) The period specified under paragraph (2)(c) must be at least 14 days beginning on the day on which the notice is given.
(4) If the notice is given by the CEO:
(a) the notice may require the person to give the information by appearing before a specified Agency officer to answer questions; and
(b) if paragraph (a) applies—the notice must specify a time and place at which the person is to appear, which must be at least 14 days after the notice is given.
(5) If the notice is given by the Commissioner:
(a) the notice may require the person to give the information by appearing before a specified Commission officer to answer questions; and
(b) if paragraph (a) applies—the notice must specify a time and place at which the person is to appear, which must be at least 14 days after the notice is given.
57 Offence—refusal or failure to comply with requirement
(1) A person must not refuse or fail to comply with a requirement under section 55 or 55A to give information or produce a document.
Penalty: 30 penalty units.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
(3) It is a reasonable excuse for an individual to refuse or fail to give information or produce a document on the ground that to do so might tend to incriminate the individual or expose the individual to a penalty.
Division 3—Interaction with other laws
58 Obligations not affected by State or Territory laws
(1) Subject to subsection (2), nothing in a law of a State or a Territory prevents a person from:
(a) giving information; or
(b) producing a document; or
(c) giving evidence;
that the person is required to give or produce to the Agency, an Agency officer, the Commissioner or a Commission officer for the purposes of this Act.
(2) Despite subsection (1), a person is not required to give information, produce a document or give evidence to the Agency, an Agency officer, the Commissioner or a Commission officer for the purposes of this Act if:
(a) the person would, apart from subsection (1), be prevented from doing so under a law of a State or Territory; and
(b) the law of the State or Territory is prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
59 Interaction with Commonwealth laws
This Part does not require a person to give information or produce a document to the extent that in doing so the person would contravene a law of the Commonwealth.
Part 2—Privacy
Division 1—Information held by the Agency
60 Protection of information held by the Agency etc.
(1) A person may collect protected information for the purposes of this Act.
(2) A person may:
(a) make a record of protected Agency information; or
(b) disclose such information to any person; or
(c) otherwise use such information;
if:
(d) the making of the record, or the disclosure or use of the information, by the person is made:
(i) for the purposes of this Act; or
(ii) for the purpose for which the information was disclosed to the person under section 66; or
(iii) with the express or implied consent of the person to whom the information relates; or
(e) the person believes on reasonable grounds that the making of the record, or the disclosure or use of the information, by the person is necessary to prevent or lessen a serious threat to an individual’s life, health or safety.
(3) Without limiting subsections (1) and (2), the collection, recording, disclosure or use of information by a person is taken to be for the purposes of this Act if the CEO believes, on reasonable grounds, that it is reasonably necessary for one or more of the following purposes:
(a) research into matters relevant to the National Disability Insurance Scheme;
(b) actuarial analysis of matters relevant to the National Disability Insurance Scheme;
(c) policy development.
61 Offence—unauthorised access to protected information
A person commits an offence if:
(a) the person collects information; and
(b) the person is not authorised or required by or under this Act to collect the information; and
(c) the information is protected information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
62 Offence—unauthorised use or disclosure of protected Agency information
A person commits an offence if:
(a) the person:
(i) makes a record of information; or
(ii) discloses information to any other person; or
(iii) otherwise makes use of information; and
(b) the person is not authorised or required by or under this Act to make the record, disclosure or use of the information that is made by the person; and
(c) the information is protected Agency information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
63 Offence—soliciting disclosure of protected Agency information
A person (the first person) commits an offence if:
(a) the first person solicits the disclosure of information from an Agency officer or another person, whether or not any protected Agency information is actually disclosed; and
(b) the disclosure would be in contravention of this Part; and
(c) the information is protected Agency information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
64 Offence—offering to supply protected Agency information
(1) A person commits an offence if:
(a) the person offers to supply (whether to a particular person or otherwise) information about another person; and
(b) the person knows the information is protected Agency information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
(2) A person commits an offence if:
(a) the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and
(b) the person knows the information is protected Agency information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
(3) Subsections (1) and (2) do not apply to a person acting in the performance or exercise of his or her duties, functions or powers under this Act.
66 Disclosure of information by CEO
(1) Despite sections 62, 64 and 67G, the CEO may:
(a) if the CEO is satisfied on reasonable grounds that it is in the public interest to do so in a particular case or class of cases—disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her powers under this Act to such persons and for such purposes as the CEO determines; or
(b) disclose any such information:
(i) to the Secretary of a Department of State of the Commonwealth, or to the head of an authority of the Commonwealth, for the purposes of that Department or authority; or
(ii) to a person who has the express or implied consent of the person to whom the information relates to collect it; or
(iii) to the Chief Executive Centrelink for the purposes of a centrelink program; or
(iv) to the Chief Executive Medicare for the purposes of a medicare program; or
(v) to the chief executive (however described) of a Department of State of a State or Territory, or to the head of an authority of a State or Territory, for the purposes of that Department or authority.
(2) In disclosing information for the purposes of paragraph (1)(a) or subparagraph (1)(b)(i) or (v), the CEO must act in accordance with any National Disability Insurance Scheme rules made for the purposes of section 67.
(3) Despite any other provision of this Part, the CEO may disclose protected Agency information to a participant’s nominee if the protected Agency information:
(a) relates to the participant; and
(b) is or was held in the records of the Agency.
(4) If:
(a) the CEO or an Agency officer is served with a summons or notice, or is otherwise subject to a requirement, under the Royal Commissions Act 1902; and
(b) in order to comply with the summons, notice or requirement, the CEO or Agency officer would be required to disclose information that is protected Agency information;
then, despite sections 62 and 67G of this Act, the CEO or Agency officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.
67 National Disability Insurance Scheme rules for exercise of CEO’s disclosure powers
The National Disability Insurance Scheme rules may make provision for and in relation to the exercise of the CEO’s power to disclose information for the purposes of paragraph 66(1)(a) or subparagraph 66(1)(b)(i) or (v).
Division 2—Information held by the Commission
67A Protection of information held by the Commission etc.
(1) A person may:
(a) make a record of protected Commission information; or
(b) disclose such information to any person; or
(c) otherwise use such information;
if:
(d) the making of the record, or the disclosure or use of the information, by the person is made:
(i) for the purposes of this Act; or
(ii) for the purpose for which the information was disclosed to the person under section 67E; or
(iii) with the express or implied consent of the person to whom the information relates; or
(e) the person reasonably believes that the making of the record, or the disclosure or use of the information, by the person is necessary to prevent or lessen a serious threat to an individual’s life, health or safety.
(2) Without limiting subsection (1), the recording, disclosure or use of information by a person is taken to be for the purposes of this Act if the Commissioner reasonably believes that it is reasonably necessary for one or more of the following purposes:
(a) research into matters relevant to the National Disability Insurance Scheme;
(b) policy development.
67B Offence—unauthorised use or disclosure of protected Commission information
A person commits an offence if:
(a) the person:
(i) makes a record of information; or
(ii) discloses information to any other person; or
(iii) otherwise makes use of information; and
(b) the person is not authorised or required by or under this Act to make the record, disclosure or use of the information that is made by the person; and
(c) the information is protected Commission information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
67C Offence—soliciting disclosure of protected Commission information
A person (the first person) commits an offence if:
(a) the first person solicits the disclosure of information from a Commission officer or another person, whether or not any protected Commission information is actually disclosed; and
(b) the disclosure would be in contravention of this Part; and
(c) the information is protected Commission information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
67D Offence—offering to supply protected Commission information
(1) A person commits an offence if:
(a) the person offers to supply (whether to a particular person or otherwise) information about another person; and
(b) the person knows the information is protected Commission information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
(2) A person commits an offence if:
(a) the person holds himself or herself out as being able to supply (whether to a particular person or otherwise) information about another person; and
(b) the person knows the information is protected Commission information.
Penalty: Imprisonment for 2 years or 120 penalty units, or both.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
(3) Subsections (1) and (2) do not apply to a person acting in the performance or exercise of his or her duties, functions or powers under this Act.
67E Disclosure of information by Commissioner
(1) Despite sections 67B, 67D and 67G, the Commissioner may:
(a) if the Commissioner is satisfied on reasonable grounds that it is in the public interest to do so in a particular case or class of cases—disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her powers under this Act to such persons and for such purposes as the Commissioner determines; or
(b) disclose any such information:
(i) to the Secretary of a Department of State of the Commonwealth, or to the head of an authority of the Commonwealth, for the purposes of that Department or authority; or
(ii) to a person who has the express or implied consent of the person to whom the information relates to collect it; or
(iii) to a Department of State of a State or Territory, or to an authority of a State or Territory, that has responsibility for matters relating to people with disability, including the provision of supports or services to people with disability; or
(iv) to the chief executive (however described) of a Department of State of a State or Territory, or to the head of an authority of a State or Territory, for the purposes of that Department or authority.
(2) In disclosing information for the purposes of paragraph (1)(a) or subparagraph (1)(b)(i), (iii) or (iv), the Commissioner must act in accordance with the National Disability Insurance Scheme rules made for the purposes of section 67F.
(3) Despite any other provision of this Part, the Commissioner may disclose protected Commission information to a participant’s nominee if the protected Commission information:
(a) relates to the participant; and
(b) is or was held in the records of the Commission.
(4) If:
(a) the Commissioner or a Commission officer is served with a summons or notice, or is otherwise subject to a requirement, under the Royal Commissions Act 1902; and
(b) in order to comply with the summons, notice or requirement, the Commissioner or Commission officer would be required to disclose information that is protected Commission information;
then, despite sections 67B and 67G of this Act, the Commissioner or Commission officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.
67F National Disability Insurance Scheme rules for exercise of Commissioner’s disclosure powers
The National Disability Insurance Scheme rules may make provision for and in relation to the exercise of the Commissioner’s power to disclose information for the purposes of paragraph 67E(1)(a) or subparagraph 67E(1)(b)(i), (iii) or (iv).
Division 3—Information generally
67G Protection of certain documents etc. from production to court etc.
A person must not, except for the purposes of this Act or the Royal Commissions Act 1902, be required:
(a) to produce any document in his or her possession because of the performance or exercise of his or her duties, functions or powers under this Act; or
(b) to disclose any matter or thing of which he or she had notice because of the performance or exercise of such duties, functions or powers;
to a court, tribunal, authority or person that has power to require the production of documents or the answering of questions.
67H Part does not affect the operation of the Freedom of Information Act 1982
The provisions of this Part that relate to the disclosure of information do not affect the operation of the Freedom of Information Act 1982.
Part 3—Registered providers of supports
Note: A person or entity can only provide supports, as a registered provider of supports, to participants that are not in a participating jurisdiction (see paragraph 70(1)(ca)).
69 Application to be a registered provider of supports
(1) A person or entity may apply in writing to the CEO to be a registered provider of supports in relation to either or both of the following:
(a) managing the funding for supports under plans;
(b) the provision of supports.
Note 1: If the funding for supports under a plan is managed by the Agency, supports are to be provided only by a registered provider of supports (see subsection 33(6)).
Note 2: A registered plan management provider of supports may in certain circumstances manage the funding for supports under a plan (see subsection 42(2)).
(2) The application must:
(a) be in the form (if any) approved by the CEO; and
(b) include any information, and be accompanied by any documents, required by the CEO.
Note: The CEO is not required to make a decision on the application if this subsection is not complied with (see section 197).
70 Registered providers of supports
(1) The CEO must approve a person or entity as a registered provider of supports in relation to either or both of the following:
(a) managing the funding for supports under plans;
(b) the provision of supports;
if:
(c) the person or entity (the applicant) makes an application under section 69; and
(ca) the applicant will manage the funding for supports under plans, or provide supports under plans, to participants in a host jurisdiction that is not a participating jurisdiction; and
(d) the CEO is satisfied that the applicant meets the criteria prescribed by the National Disability Insurance Scheme rules; and
(e) the CEO is satisfied that the applicant is suitable to manage the funding for supports under plans or provide supports under plans, as the case requires, applying any criteria and having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
(2) An approval of a person or entity as a registered provider of supports must be by written instrument.
(3) The instrument may specify that the person or entity is a registered provider of supports in respect of:
(a) a class of supports specified in the instrument; or
(b) a class of person specified in the instrument.
(4) The instrument may specify that it ceases to be in effect on a specified day.
71 When a person or entity ceases to be a registered provider of supports
A person or entity ceases to be a registered provider of supports on the earlier of the following days:
(a) if the instrument approving the person or entity as a registered provider of supports is revoked under section 72—the day on which the revocation takes effect;
(b) if the instrument specifies that it ceases to be in effect on a specified day—that day.
72 Revocation of approval as a registered provider of supports
(1) The CEO may revoke an instrument approving a person or entity as a registered provider of supports if the CEO is satisfied that:
(a) the person or entity no longer meets the criteria prescribed by the National Disability Insurance Scheme rules for the purposes of paragraph 70(1)(d); or
(b) the application by the person or entity for approval contained information that was false or misleading in a material particular; or
(c) a circumstance exists that:
(i) is a circumstance prescribed by National Disability Insurance Scheme rules for the purposes of this paragraph; and
(ii) presents an unreasonable risk to one or more participants.
(1A) Without limiting the circumstances that may be prescribed by National Disability Insurance Scheme rules made for the purposes of paragraph (1)(c), such circumstances may relate to:
(a) a contravention by a person or entity that is a registered provider of supports, or an employee or contractor of such a person or entity, of a law or other requirement; or
(b) a complaint made, or action taken, in relation to such a person or entity, or an employee or contractor of such a person or entity; or
(c) such a person or entity being an insolvent under administration.
(2) Before deciding to revoke the instrument, the CEO must notify the person or entity that revocation is being considered. The notice must be in writing and must:
(a) include the CEO’s reasons for considering the revocation; and
(b) invite the person or entity to make submissions, in writing, to the CEO within 28 days after receiving the notice; and
(c) inform the person or entity that if no submissions are made within that period, any revocation may take effect as early as 7 days after the end of the period referred to in paragraph (b).
(3) In deciding whether to revoke the instrument, the CEO must consider any submissions given to the CEO within the period referred to in paragraph (2)(b).
(4) The CEO must notify the person or entity, in writing, of the decision.
(5) The notice under subsection (4) must be given within 28 days after the end of the period for making submissions. If the notice is not given within this period, the CEO is taken to have decided not to revoke the instrument.
73 National Disability Insurance Scheme rules for registered providers of supports
(1) The National Disability Insurance Scheme rules may make provision in connection with the approval of persons or entities as registered providers of supports, including by prescribing criteria relating to:
(a) compliance with prescribed safeguards; and
(b) compliance with prescribed quality assurance standards and procedures; and
(c) qualifications of persons or entities or employees of persons or entities; and
(d) processes to deal with conflicts of interest, or perceived conflicts of interest.
(2) The National Disability Insurance Scheme rules may make provision in connection with registered providers of supports, including by prescribing:
(a) the consequences of registered providers of supports failing to comply with this Act, the regulations or the National Disability Insurance Scheme rules; and
(b) requirements with which registered providers of supports must comply, including in relation to the following:
(i) governance;
(ii) business practice;
(iii) accounting practice; and
(c) the obligations of registered providers of supports in relation to the monitoring of compliance; and
(d) the process for handling complaints involving registered providers of supports; and
(da) obligations relating to dealing with conflicts of interest, or perceived conflicts of interest; and
(e) auditing requirements in relation to registered providers of supports.
Part 3A—NDIS providers
Division 1—Application of Part
73A Application of Part
This Part applies in relation to:
(a) persons or entities applying for registration to provide supports or services to people with disability in participating jurisdictions; and
(b) registered NDIS providers providing supports or services to people with disability in participating jurisdictions; and
(c) NDIS providers providing supports or services to people with disability in participating jurisdictions.
Division 2—Registered NDIS providers
73B Requirement to be a registered NDIS provider
(1) The National Disability Insurance Scheme rules may require that specified classes of supports provided under participants’ plans are to be provided only by NDIS providers who are registered under section 73E to provide those classes of supports.
Note: See also subsection 33(6), which provides that, if the funding for supports under a plan is managed by the Agency, supports are to be provided only by a registered NDIS provider.
(2) A person must not provide a support under a participant’s plan if:
(a) the National Disability Insurance Scheme rules require the person to be registered to provide the support under the plan; and
(b) the person is not so registered.
Civil penalty: 250 penalty units.
73C Application to be a registered NDIS provider
(1) A person may apply to the Commissioner to be a registered NDIS provider in relation to one or more of the following:
(a) the provision of supports or services under the arrangements set out in Chapter 2;
(b) managing the funding for supports under participants’ plans;
(c) the provision of supports under participants’ plans.
Note: An unincorporated association or a partnership may also apply for registration under this section (see section 203).
(2) A person may also apply to the Commissioner to be a registered NDIS provider in relation to the provision of services or supports to people with disability other than under the National Disability Insurance Scheme if the person is included in a class of persons prescribed for the purposes of subparagraph (b)(ii) of the definition of NDIS provider.
(3) The application must:
(a) be in writing; and
(b) be in a form (if any) approved in writing by the Commissioner; and
(c) include any information, and be accompanied by any documents, required by the Commissioner.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(4) The Commissioner may, by written notice, require an applicant for registration to give the Commissioner such further information or documents in relation to the application as the Commissioner reasonably requires.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(5) A notice under subsection (4) may specify a period, which must not be less than 14 days, within which the information or documents must be given.
73D False or misleading information or documents in application
A person contravenes this section if the person:
(a) provides information or a document in, or in connection with, an application for registration; and
(b) the person knows the information or document is false or misleading in a material particular.
Civil penalty: 60 penalty units.
Note: Part 7.4 of the Criminal Code provides offences in relation to false or misleading statements, information and documents.
73E Registration as a registered NDIS provider
Registration
(1) The Commissioner may register a person as a registered NDIS provider if:
(a) the person (the applicant) makes an application under section 73C; and
(b) the applicant will provide supports or services to people with disability in a participating jurisdiction; and
(c) the applicant has been assessed by an approved quality auditor as meeting the applicable standards and other requirements prescribed by the NDIS Practice Standards; and
(d) the Commissioner is satisfied that the applicant is suitable to provide supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(e) the Commissioner is satisfied that the applicant’s key personnel (if any) are suitable to be involved in the provision of supports or services for which the applicant will be registered to provide, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(f) the applicant satisfies any other requirements prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
(2) A person may be registered in respect of one or more of the following:
(a) managing the funding of supports under participants’ plans;
(b) providing specified classes of supports under participants’ plans;
(c) providing specified classes of supports or services under the arrangements set out in Chapter 2;
(d) providing specified classes of supports or services to people with disability other than under the National Disability Insurance Scheme.
(3) Despite subsections (1) and (2), if a banning order is in force in relation to the applicant, the Commissioner must not register the applicant in a way that would be inconsistent with the banning order.
Note: Under subsection 73ZN(3), a banning order may be of general or limited application.
Notice of decision to register
(4) The Commissioner must:
(a) give written notice of a decision to register, or not to register, a person as a registered NDIS provider, including reasons for the decision; and
(b) if the decision is to register the person—provide a certificate of registration, specifying the matters mentioned in subsection (5), to the person.
Certificate of registration
(5) A certificate of registration must specify:
(a) which of the following the person is a registered NDIS provider in relation to:
(i) managing the funding for supports under plans;
(ii) the provision of supports under plans;
(iii) the provision of supports or services under the arrangements set out in Chapter 2;
(iv) the provision of services or supports to people with disability other than under the National Disability Insurance Scheme; and
(b) the classes of supports or services the person is registered to provide; and
(c) if the person is registered in respect of a class of persons—the class of persons in respect of which the provider is registered; and
(d) the conditions (if any) on the registration imposed by the Commissioner under section 73G; and
(e) the period for which the registration is in force; and
(f) any other matter determined in writing by the Commissioner for the purposes of this paragraph.
Note: The registration of a person may be varied (see section 73L), suspended (see section 73N) or revoked (see section 73P) and the period for which the registration is in force may be extended (see section 73K) or varied (see section 73L).
(6) A determination made under paragraph (5)(f) is not a legislative instrument.
73F Registration is subject to conditions
(1) The registration of a person as a registered NDIS provider is subject to the following conditions:
(a) the conditions set out in subsection (2);
(b) the conditions (if any) imposed by the Commissioner under section 73G;
(c) the conditions (if any) determined by the National Disability Insurance Scheme rules under section 73H.
(2) The registration of a person as a registered NDIS provider is subject to the following conditions:
(a) a condition that the person comply with all applicable requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the person or entity operates as a registered NDIS provider;
(b) a condition that the person comply with all applicable requirements of the NDIS Code of Conduct;
(c) a condition that the person comply with all applicable standards and other requirements of the NDIS Practice Standards;
(d) a condition that the person comply with all applicable requirements relating to record keeping prescribed by the National Disability Insurance Scheme rules for the purposes of section 73Q;
(e) a condition that the person implement and maintain the applicable complaints management and resolution system in accordance with section 73W;
(f) a condition that the person comply with all applicable requirements relating to complaints prescribed by the National Disability Insurance Scheme rules for the purposes of section 73X;
(g) a condition that the person implement and maintain the applicable incident management system in accordance with section 73Y;
(h) a condition that the person comply with all applicable requirements relating to reportable incidents prescribed by the National Disability Insurance Scheme rules for the purposes of section 73Z;
(i) a condition that the person give to the Commissioner, on request, information specified in the request within the period specified in the request (which must not be less than 14 days).
73G Conditions specified in certificate of registration
(1) The Commissioner may impose conditions to which the registration of a person as a registered NDIS provider is subject.
(2) A condition may be imposed at the time of registration, or at a later time.
Note: Conditions imposed under this section may also be varied or revoked (see section 73L).
(3) The conditions may include, but are not limited to, conditions relating to the following matters:
(a) the types of quality audits the provider must undergo;
(b) the timing of such quality audits;
(c) requirements relating to supports or services for which the provider is registered to provide, including circumstances in which supports or services for which the provider is registered can or cannot be provided.
73H Conditions determined by NDIS rules
The National Disability Insurance Scheme rules may determine that each registration, or each registration included in a specified class of registration, is taken to include one or more specified conditions.
73J Registered NDIS providers must comply with conditions of registration
A person contravenes this section if the person:
(a) is a registered NDIS provider; and
(b) breaches a condition to which the registration of the person is subject.
Civil penalty: 250 penalty units.
73K Extension of period for which registration is in force
(1) Subsection (2) applies if:
(a) the registration of a person as a registered NDIS provider will cease to be in force on a particular day; and
(b) within 6 months before that day, the person makes an application under section 73C.
(2) Despite paragraph 73E(5)(e), the registration of the person continues in force until the Commissioner makes a decision on the application under subsection 73E(1).
73L Variation of registration
(1) The Commissioner may vary the registration of a registered NDIS provider, by written notice given to the provider:
(a) at any time, on the Commissioner’s own initiative; or
(b) on application by the provider under section 73M.
(2) The Commissioner may vary the registration of a registered NDIS provider if the Commissioner considers it appropriate in all the circumstances to do so.
(3) Without limiting subsection (1), the Commissioner may vary the registration of an NDIS provider to:
(a) impose, vary or revoke conditions to which the registration is subject under section 73G; or
(b) reduce or extend the period for which the registration is in force; or
(c) extend, modify or reduce the supports or services the provider is registered to provide.
(4) If the Commissioner decides to vary the registration of a registered NDIS provider, the Commissioner must give a certificate of registration as varied to the provider.
(5) If, after receiving an application under section 73M, the Commissioner refuses to vary the registration of a registered NDIS provider, the Commissioner must give written notice of the refusal, including reasons for the refusal.
(6) A variation of the registration of a registered NDIS provider takes effect on the day specified in the notice given under subsection (1).
73M Application for variation of registration
(1) A registered NDIS provider may apply for a variation to the provider’s registration.
(2) The application must:
(a) be in writing; and
(b) be in a form (if any) approved in writing by the Commissioner; and
(c) include any information, and be accompanied by any documents, required by the Commissioner.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(3) The Commissioner may, by written notice, require an applicant for a variation to give the Commissioner such further information or documents in relation to the application as the Commissioner reasonably requires.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(4) A notice under subsection (3) may specify a period, which must not be less than 14 days, within which the information or documents must be given.
73N Suspension of registration
Suspension on Commissioner’s own initiative
(1) The Commissioner may, in writing, suspend the registration of a person as a registered NDIS provider for a specified period if:
(a) the Commissioner reasonably believes that the person has contravened, is contravening, or is proposing to contravene, this Act; or
(b) the Commissioner reasonably believes that the application for registration by the person contained information that was false or misleading in a material particular; or
(c) the person is an insolvent under administration; or
(d) the Commissioner is satisfied that the person is no longer suitable to provide the supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or
(e) the Commissioner is no longer satisfied that the key personnel of the person (if any) are suitable to be involved in the provision of supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or
(f) a circumstance exists that is a circumstance prescribed by National Disability Insurance Scheme rules for the purposes of this paragraph.
(2) The period specified under subsection (1) must not be longer than 30 days.
(3) To avoid doubt, subsection (2) does not prevent the Commissioner suspending the registration of a person as a registered provider more than once.
(4) In deciding whether to suspend the registration of a person under subsection (1), the Commissioner must have regard to the following matters:
(a) the nature, significance and persistence of any contravention, or proposed contravention, of this Act;
(b) action that can be taken to address any contravention, or proposed contravention, of this Act;
(c) the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the National Disability Insurance Scheme;
(d) the health, safety or wellbeing of people with disability receiving supports or services from the person;
(e) any other matter the Commissioner considers relevant.
(5) If the registration of a person is suspended under subsection (1), the Commissioner must give the person written notice of the suspension and the reasons for the suspension.
Suspension at the request of registered NDIS provider
(6) The Commissioner may, in writing, suspend the registration of a person as a registered NDIS provider for a specified period if the person requests the Commissioner, in writing, to suspend the registration.
Effect of suspension
(7) If the registration of a person is suspended under this section, the registration ceases to have effect until the suspension ceases to be in force.
73P Revocation of registration
(1) The Commissioner may, in writing, revoke the registration of a person as a registered NDIS provider if:
(a) the Commissioner reasonably believes that the person has contravened, is contravening, or is proposing to contravene, this Act; or
(b) the application for registration by the person contained information that was false or misleading in a material particular; or
(c) the person is an insolvent under administration; or
(d) the Commissioner is satisfied that the person is no longer suitable to provide supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or
(e) the Commissioner is no longer satisfied that the key personnel of the person (if any) are suitable to be involved in the provision of supports or services for which the person is registered to provide, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; or
(f) a circumstance exists that is a circumstance prescribed by National Disability Insurance Scheme rules for the purposes of this paragraph.
(2) In deciding whether to revoke the registration of a person under subsection (1), the Commissioner must have regard to the following matters:
(a) the nature, significance and persistence of any contravention, or proposed contravention, of this Act;
(b) action that can be taken to address any contravention, or proposed contravention, of this Act;
(c) the extent (if any) to which the person is conducting its affairs as a registered NDIS provider in a way that may cause harm to, or jeopardise, public trust in the National Disability Insurance Scheme;
(d) the health, safety or wellbeing of people with disability receiving supports or services from the person;
(e) any other matter the Commissioner considers relevant.
(3) The Commissioner may, in writing, revoke the registration of a person as a registered NDIS provider if the person requests the Commissioner, in writing, to revoke the registration.
(4) Before deciding to revoke the registration of a person under subsection (1), the Commissioner must notify the person that revocation is being considered. The notice must be in writing and must:
(a) include the Commissioner’s reasons for considering the revocation; and
(b) invite the person to make submissions, in writing, to the Commissioner within 28 days after receiving the notice; and
(c) inform the person that if no submissions are made within that period, any revocation may take effect as early as 7 days after the end of the period referred to in paragraph (b).
(5) In deciding whether to revoke the registration, the Commissioner must consider any submissions given to the Commissioner within the period referred to in paragraph (4)(b).
(6) The Commissioner must notify the person, in writing, of the decision.
(7) The notice under subsection (6) must be given within 28 days after the end of the period for making submissions. If the notice is not given within this period, the Commissioner is taken to have decided not to revoke the registration.
73Q Record keeping by registered NDIS providers
A registered NDIS provider must keep records of the kind, for the period and in the form prescribed by the National Disability Insurance Scheme rules.
Note: Compliance with this section is a condition of registration (see paragraph 73F(2)(d)), breach of which is a civil penalty provision (see section 73J).
73R Record keeping by former registered NDIS providers
(1) A person who has ceased to be a registered NDIS provider must keep records that the person was required to retain under section 73Q immediately before the person ceased to be a registered NDIS provider.
(2) The records must be kept for 3 years commencing on the day that the person ceased to be a registered NDIS provider.
(3) A person contravenes this section if the person:
(a) is subject to a requirement under this section; and
(b) fails to comply the requirement.
Civil penalty: 60 penalty units.
73S Grants of financial assistance in relation to registration
(1) The Commissioner may, on behalf of the Commonwealth, make a grant of financial assistance to a person or entity in relation to applications for registration, or variations to registration, as a registered NDIS provider under this Act.
(2) The terms and conditions on which that financial assistance is granted are to be set out in a written agreement between the Commonwealth and the person or entity.
(3) An agreement under subsection (2) may be entered into by the Commissioner on behalf of the Commonwealth.
Division 3—Quality assurance
73T NDIS Practice Standards
(1) The National Disability Insurance Scheme rules may make provision for or in relation to standards concerning the quality of supports or services to be provided by registered NDIS providers.
Note: Non‑compliance with the NDIS Practice Standards by registered NDIS providers constitutes a breach of condition of registration (see paragraph 73F(2)(c) and section 73J).
(2) Rules made for the purposes of subsection (1) are to be known as the NDIS Practice Standards.
(3) Without limiting subsection (1), the NDIS Practice Standards may deal with the following:
(a) standards to be complied with to become a registered NDIS provider;
(b) standards to be complied with to remain a registered NDIS provider;
(c) matters relating to assessing compliance with the standards;
(d) matters relating to the screening of workers employed or otherwise engaged by registered NDIS providers.
73U Approved quality auditors
(1) The Commissioner may, in writing, approve a person or body to be an approved quality auditor for the purposes of this Act.
(2) An approval given under subsection (1) is not a legislative instrument.
(3) The Commissioner may publish, on the Commission’s website, a list of approved quality auditors.
Division 4—NDIS Code of Conduct
73V NDIS Code of Conduct
(1) The National Disability Insurance Scheme rules may make provision for or in relation to a code of conduct that applies to either or both of the following:
(a) NDIS providers;
(b) persons employed or otherwise engaged by NDIS providers.
(2) Rules made for the purposes of subsection (1) are to be known as the NDIS Code of Conduct.
(3) A person contravenes this section if the person:
(a) is subject to a requirement under the NDIS Code of Conduct; and
(b) fails to comply with the requirement.
Civil penalty: 250 penalty units.
Division 5—Complaints management and resolution
73W Complaints management and resolution system—registered NDIS providers
A registered NDIS provider must implement and maintain a complaints management and resolution system that:
(a) is appropriate for the size of the provider and for the classes of supports or services provided by the provider; and
(aa) acknowledges the role of advocates (including independent advocates) and other representatives of persons with disability; and
(ab) provides for cooperation with, and facilitates arrangements for, advocates (including independent advocates) and other representatives of persons with disability who are affected by the complaints process and who wish to be independently supported in that process by an advocate or other representative; and
(b) complies with the requirements (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note: Non‑compliance with this section constitutes a breach of condition of registration (see paragraph 73F(2)(e) and section 73J).
73X Arrangements relating to the management and resolution of complaints
(1) The National Disability Insurance Scheme rules may prescribe arrangements relating to the management and resolution of complaints arising out of, or in connection with, the provision of supports or services by NDIS providers.
(2) Without limiting subsection (1), the National Disability Insurance Scheme rules may deal with the following matters:
(a) how complaints may be made, managed and resolved, including methods to support the early resolution of complaints;
(b) the roles, rights and responsibilities of people with disability, complainants, NDIS providers, advocates (including independent advocates) and other persons in relation to the management and resolution of complaints;
(c) considerations relevant to making decisions under the National Disability Insurance Scheme rules in relation to complaints;
(ca) requirements relating to procedural fairness in relation to the management and resolution of complaints;
(d) procedures for the review of decisions and processes;
(e) actions that must or may be taken (including making requirements of NDIS providers) to address complaints;
(f) authorising the provision of information relating to complaints to the Minister, the Agency or other specified bodies;
(g) the matters in relation to which the Commissioner may authorise an inquiry, on his or her own initiative.
Division 6—Incident management—registered NDIS providers
73Y Incident management system
A registered NDIS provider must implement and maintain an incident management system that:
(a) is appropriate for the size of the provider and for the classes of supports or services provided by the provider; and
(b) complies with the requirements (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note: Non‑compliance with this section constitutes a breach of condition of registration (see paragraph 73F(2)(g) and section 73J).
73Z Reportable incidents
(1) The National Disability Insurance Scheme rules must 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 registered NDIS providers.
(2) Without limiting subsection (1), the National Disability Insurance Scheme rules may deal with the following matters:
(a) the manner and period within which reportable incidents must be reported to the Commission;
(b) action that must be taken in relation to reportable incidents;
(c) authorising the provision of information relating to reportable incidents to the Minister, the Agency or other specified bodies;
(d) the matters in which the Commissioner may authorise an inquiry in relation to a reportable incident, on his or her own initiative.
(3) Without limiting paragraph (2)(b), action may include:
(aa) requiring a registered NDIS provider to provide people with disability with information regarding the use of an advocate (including an independent advocate) in relation to an investigation into the reportable incident; and
(a) requiring a registered NDIS provider to arrange for, and cover the cost of, an independent investigation into the reportable incident within a specified period; and
(b) providing a copy of any report of the independent investigation to the Commissioner.
(4) Reportable incident means:
(a) the death of a person with disability; or
(b) serious injury of a person with disability; or
(c) abuse or neglect of a person with disability; or
(d) unlawful sexual or physical contact with, or assault of, a person with disability; or
(e) sexual misconduct committed against, or in the presence of, a person with disability, including grooming of the person for sexual activity; or
(f) the use of a restrictive practice in relation to a person with disability, other than where the use is in accordance with an authorisation (however described) of a State or Territory in relation to the person.
(5) Despite subsection (4), the National Disability Insurance Scheme rules may provide as follows:
(a) that a specified act, omission or event is a reportable incident;
(b) that a specified act, omission or event is not a reportable incident.
Division 7—Protection of disclosers
73ZA Disclosures qualifying for protection
(1) This section applies to a disclosure of information by a person (the discloser) who is, in relation to an NDIS provider, any of the following:
(a) if the NDIS provider is a body corporate—an officer or employee of the body corporate, or a person who has a contract for the supply of goods or services to, or on behalf of, the body corporate;
(b) if the NDIS provider is an unincorporated association—a member of the committee of management or an employee of the association, or a person who has a contract for the supply of goods or services to, or on behalf of, the association;
(c) if the NDIS provider is a partnership—a partner in or an employee of the partnership, or a person who has a contract for the supply of goods or services to, or on behalf of, the partnership;
(d) in any case—a person with disability who is receiving a support or service from the NDIS provider, or a nominee, family member, carer, independent advocate or significant other of that person.
(2) The disclosure of the information by the discloser qualifies for protection under this Division if:
(a) the disclosure is made to one of the following:
(i) the Commissioner;
(ii) the Agency;
(iii) if the NDIS provider is a body corporate—a member of the key personnel of the body corporate;
(iv) if the NDIS provider is an unincorporated association—a member of the key personnel of the association;
(v) if the NDIS provider is a partnership—a partner; and
(b) the discloser informs the person to whom the disclosure is made of the discloser’s name before making the disclosure; and
(c) the discloser has reasonable grounds to suspect that the information indicates that an NDIS provider has, or may have, contravened a provision of this Act; and
(d) the discloser makes the disclosure in good faith.
(3) In this section, officer has the same meaning as it has in the Corporations Act 2001.
73ZB Disclosure that qualifies for protection not actionable etc.
(1) If a person makes a disclosure that qualifies for protection under this Division:
(a) the person is not subject to any civil or criminal liability for making the disclosure; and
(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure.
Note: This subsection does not provide that the person is not subject to any civil or criminal liability for conduct of the person that is revealed by the disclosure.
(2) Without limiting subsection (1):
(a) the person has qualified privilege (see subsection (3)) in respect of the disclosure; and
(b) a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.
(3) For the purpose of paragraph (2)(a), qualified privilege, in respect of the disclosure, means that the person:
(a) has qualified privilege in proceedings for defamation; and
(b) is not, in the absence of malice on the person’s part, liable to an action for defamation at the suit of a person;
in respect of the disclosure.
(4) For the purpose of paragraph (3)(b), malice includes ill will to the person concerned or any other improper motive.
(5) This section does not limit or affect any right, privilege or immunity that a person has, apart from this section, as a defendant in proceedings, or an action, for defamation.
73ZC Victimisation prohibited
Actually causing detriment to another person
(1) A person (the first person) contravenes this subsection if:
(a) the first person engages in conduct; and
(b) the first person’s conduct causes any detriment to another person (the second person); and
(c) the first person intends that his or her conduct cause detriment to the second person; and
(d) the first person engages in his or her conduct because the second person or a third person made a disclosure that qualifies for protection under this Division.
Civil penalty: 500 penalty units.
Threatening to cause detriment to another person
(2) A person (the first person) contravenes this subsection if:
(a) the first person makes to another person (the second person) a threat to cause any detriment to the second person or to a third person; and
(b) the first person:
(i) intends the second person to fear that the threat will be carried out; or
(ii) is reckless as to causing the second person to fear that the threat will be carried out; and
(c) the first person makes the threat because a person:
(i) makes a disclosure that qualifies for protection under this Part; or
(ii) may make a disclosure that would qualify for protection under this Division.
Civil penalty: 500 penalty units.
Threats
(3) For the purpose of subsection (2), a threat may be:
(a) express or implied; or
(b) conditional or unconditional.
(4) In proceedings for a civil penalty order against a person for a contravention of subsection (2), it is not necessary to prove that the person threatened actually feared that the threat would be carried out.
73ZD Right to compensation
If:
(a) a person contravenes subsection 73ZC(1) or (2); and
(b) another person suffers damage because of the contravention;
the person in contravention is liable to compensate the other person for the damage.
Division 8—Compliance and enforcement
73ZE Monitoring powers
Provisions subject to monitoring
(1) This Part is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions of this Part have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance or purported compliance with a provision of this Part is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Part:
(a) an inspector is an authorised applicant; and
(b) an inspector is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Commissioner is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to this Part.
73ZF Investigation powers
Provisions subject to investigation
(1) A provision is subject to investigation under Part 3 of the Regulatory Powers Act if it is:
(a) a civil penalty provision in this Part; or
(b) an offence against the Crimes Act 1914 or the Criminal Code that relates to this Part.
Note: Part 3 of the Regulatory Powers Act creates a framework for investigating whether a provision has been contravened. It includes powers of entry, search and seizure.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(2) For the purposes of Part 3 of the Regulatory Powers Act, as it applies in relation to evidential material that relates to a provision mentioned in subsection (1):
(a) an investigator is an authorised applicant; and
(b) an investigator is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Commissioner is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the Federal Court;
(ii) the Federal Circuit Court;
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(3) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 3 of the Regulatory Powers Act in relation to evidential material that relates to a provision mentioned in subsection (1).
73ZG Use of equipment to examine or process things
(1) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises entered under an investigation warrant for the purposes of this Act.
Equipment may be brought to premises
(2) The authorised person or a person assisting may bring to the premises any equipment reasonably necessary for the examination or processing of a thing found at the premises in order to determine whether the thing may be seized.
Thing may be moved for examination or processing
(3) A thing found at the premises may be moved to another place for examination or processing in order to determine whether the thing may be seized if:
(a) both of the following apply:
(i) it is significantly more practicable to do so having regard to the timeliness and cost of examining or processing the thing at another place and the availability of expert assistance;
(ii) the authorised person or a person assisting suspects on reasonable grounds that the thing contains or constitutes evidential material; or
(b) the occupier of the premises consents in writing.
Notification of examination or processing and right to be present
(4) If the thing is moved to another place for the purpose of examination or processing under subsection (3), the authorised person must, if it is practicable to do so:
(a) inform the occupier of the premises of the address of the place and the time at which the examination or processing will be carried out; and
(b) allow the occupier or his or her representative to be present during the examination or processing.
(5) The authorised person need not comply with paragraph (4)(a) or (b) if he or she believes on reasonable grounds that to do so might:
(a) endanger the safety of a person; or
(b) prejudice an investigation or prosecution.
Time limit on moving the thing
(6) The thing may be moved to another place for examination or processing for no longer than 14 days.
(7) An authorised person may apply to an issuing officer for one or more extensions of that time if the authorised person believes on reasonable grounds that the thing cannot be examined or processed within 14 days or that time as previously extended.
(8) The authorised person must give notice of the application to the occupier of the premises, and that person is entitled to be heard in relation to the application.
(9) A single extension cannot exceed 7 days.
Equipment at premises may be operated
(10) An authorised person or a person assisting may operate equipment already at the premises to carry out the examination or processing of a thing found at the premises in order to determine whether it is a thing that may be seized if the authorised person or person assisting believes on reasonable grounds that:
(a) the equipment is suitable for the examination or processing; and
(b) the examination or processing can be carried out without damage to the equipment or the thing.
73ZH Use of electronic equipment at other place
(1) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Act.
(2) If electronic equipment is moved from the premises to another place under subsection 73ZG(3), the authorised person or a person assisting may operate the equipment to access data (including data held at another place).
(3) If the authorised person or the person assisting suspects on reasonable grounds that any data accessed by operating the electronic equipment constitutes evidential material, he or she may copy any or all of the data accessed by operating the electronic equipment to a disk, tape or other associated device.
(4) If the Commissioner is satisfied that the data is not required (or is no longer required) for the purposes of this Act or for other judicial or administrative review proceedings, the Commissioner must arrange for:
(a) the removal of the data from any device in the control of the Commission; and
(b) the destruction of any other reproduction of the data in the control of the Commission.
(5) If the authorised person or the person assisting, after operating the equipment, finds that evidential material is accessible by doing so, he or she may:
(a) seize the equipment and any disk, tape or other associated device; or
(b) if the material can be put in documentary form—put the material in that form and seize the documents so produced.
(6) An authorised person or a person assisting may seize equipment under paragraph (5)(a) only if:
(a) it is not practicable to copy the data as mentioned in subsection (3) or to put the material in documentary form as mentioned in paragraph (5)(b); or
(b) possession of the equipment by the occupier of the premises could constitute an offence.
73ZI Person with knowledge of a computer or a computer system to assist access etc.
(1) This section applies if an authorised person exercises investigation powers under Part 3 of the Regulatory Powers Act in relation to premises for the purposes of this Act.
(2) The authorised person may apply to an issuing officer referred to in paragraph 73ZF(2)(c) for an order requiring a specified person to provide any information or assistance that is reasonable and necessary to allow an authorised person or person assisting to do one or more of the following:
(a) access data held in, or accessible from, a computer or data storage device that:
(i) is on the premises; or
(ii) has been moved under subsection 73ZG(3) and is at a place for examination or processing; or
(iii) has been seized under this Act or under the Regulatory Powers Act as it applies in relation to this Act;
(b) copy data held in, or accessible from, a computer, or data storage device, described in paragraph (a) to another data storage device;
(c) convert into documentary form or another form intelligible to an authorised person or person assisting:
(i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or
(ii) data held in a data storage device to which the data was copied as described in paragraph (b); or
(iii) data held in a data storage device removed from premises under the Regulatory Powers Act as it applies in relation to this Act.
(3) The issuing officer may grant the order if the issuing officer is satisfied that:
(a) there are reasonable grounds for suspecting that evidential material is held in, or is accessible from, the computer or data storage device; and
(b) the specified person is:
(i) reasonably suspected of having committed the offence or contravened the civil penalty provision stated in the relevant warrant; or
(ii) the owner or lessee of the computer or device; or
(iii) an employee of the owner or lessee of the computer or device; or
(iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or
(v) a person who uses or has used the computer or device; or
(vi) a person who is or was a system administrator for the system including the computer or device; and
(c) the specified person has relevant knowledge of:
(i) the computer or device or a computer network of which the computer or device forms or formed a part; or
(ii) measures applied to protect data held in, or accessible from, the computer or device.
(4) If:
(a) the computer or data storage device that is the subject of the order is seized under this Act or under the Regulatory Powers Act as it applies in relation to this Act; and
(b) the order was granted on the basis of an application made before the seizure;
the order does not have effect on or after the seizure.
Note: An application for another order under this section relating to the computer or data storage device may be made after the seizure.
(5) If the computer or data storage device is not on the premises, the order must:
(a) specify the period within which the person must provide the information or assistance; and
(b) specify the place at which the person must provide the information or assistance; and
(c) specify the conditions (if any) determined by the issuing officer as the conditions to which the requirement on the person to provide the information or assistance is subject.
(6) A person commits an offence if the person fails to comply with the order.
Penalty: Imprisonment for 2 years.
73ZJ Compensation for damage to electronic equipment
(1) This section applies if:
(a) as a result of electronic equipment being operated as mentioned in section 73ZG or 73ZH:
(i) damage is caused to the equipment; or
(ii) the data recorded on the equipment is damaged; or
(iii) programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and
(b) the damage or corruption occurs because:
(i) insufficient care was exercised in selecting the person who was to operate the equipment; or
(ii) insufficient care was exercised by the person operating the equipment.
(2) The Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.
(3) However, if the owner or user and the Commonwealth fail to agree, the owner or user may institute proceedings in:
(a) the Federal Court of Australia; or
(b) the Federal Circuit Court of Australia; or
(c) a court of a State or Territory that has jurisdiction in relation to the matter;
for such reasonable amount of compensation as the court determines.
(4) In determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.
73ZK Civil penalty provisions
Enforceable civil penalty provisions
(1) Each civil penalty provision of this Part is enforceable under Part 4 of the Regulatory Powers Act.
Note: Part 4 of the Regulatory Powers Act allows a civil penalty provision to be enforced by obtaining an order for a person to pay a pecuniary penalty for the contravention of the provision.
Authorised applicant
(2) For the purposes of Part 4 of the Regulatory Powers Act, the Commissioner is an authorised applicant in relation to the civil penalty provisions of this Part.
Relevant court
(3) For the purposes of Part 4 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the civil penalty provisions of this Part:
(a) the Federal Court;
(b) the Federal Circuit Court;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Liability of Crown
(4) To avoid doubt, subsection 205(2) does not prevent the Crown from being liable to pay a pecuniary penalty under a civil penalty order under Part 4 of the Regulatory Powers Act, as that Part applies in relation to the civil penalty provisions of this Act.
73ZL Infringement notices
Provisions subject to an infringement notice
(1) A civil penalty provision of this Part is subject to an infringement notice under Part 5 of the Regulatory Powers Act.
Note: Part 5 of the Regulatory Powers Act creates a framework for using infringement notices in relation to provisions.
Infringement officer
(2) For the purposes of Part 5 of the Regulatory Powers Act, the Commissioner is an infringement officer in relation to the provisions mentioned in subsection (1).
Relevant chief executive
(3) For the purposes of Part 5 of the Regulatory Powers Act, the Commissioner is the relevant chief executive in relation to the provisions mentioned in subsection (1).
Liability of Crown
(4) To avoid doubt, subsection 205(2) does not prevent the Crown from being liable to be given an infringement notice under Part 5 of the Regulatory Powers Act, as that Part applies in relation to this Act.
73ZM Compliance notices
(1) The Commissioner may give to an NDIS provider a written notice (a compliance notice) if the Commissioner:
(a) is satisfied that an NDIS provider is not complying with this Act; or
(b) is aware of information that suggests that an NDIS provider may not be complying with this Act.
(2) The compliance notice must:
(a) set out the name of the provider to which the notice is given; and
(b) set out brief details of the non‑compliance or possible non‑compliance; and
(c) specify action that the provider must take, or refrain from taking, in order to address the non‑compliance or possible non‑compliance; and
(d) specify a reasonable period within which the provider must take, or refrain from taking, the specified action; and
(e) if the Commissioner considers it appropriate—specify a reasonable period within which the provider must provide the Commissioner with evidence that the provider has taken, or refrained from taking, the specified action; and
(f) state that a failure to comply with the notice is subject to a civil penalty; and
(g) if the provider is a registered NDIS provider—state that a failure to comply with the notice may lead to the provider’s registration being suspended or revoked; and
(h) set out any other matters specified in the National Disability Insurance Scheme rules for the purposes of this paragraph.
(3) An NDIS provider contravenes this subsection if the provider fails to comply with a compliance notice.
Civil penalty: 60 penalty units.
(4) The Commissioner may, by written notice given to an NDIS provider, vary or revoke a compliance notice if the Commissioner considers that it is appropriate in all the circumstances to do so.
(5) In deciding whether to vary or revoke a compliance notice, the Commissioner must consider any submissions that are received from the provider before the end of the period mentioned in paragraph (2)(d).
73ZN Banning orders
Banning orders—NDIS providers
(1) The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting specified activities by an NDIS provider, or by a person who was an NDIS provider, if:
(a) the Commissioner has revoked the registration of the person as a registered NDIS provider; or
(b) the Commissioner reasonably believes that:
(i) the person has contravened, is contravening, or is likely to contravene this Act; or
(ii) the person has been involved in, or is likely to become involved in, a contravention of this Act by another person; or
(iii) the person is not suitable to provide supports or services to people with disability; or
(iv) in the case of an NDIS provider—there is an immediate danger to the health, safety or wellbeing of a person with disability if the person continues to be an NDIS provider; or
(c) the person is convicted of an offence involving fraud or dishonesty; or
(d) the person becomes an insolvent under administration.
Note: A person who is subject to a banning order cannot be registered as an NDIS provider in a way that is inconsistent with the order (see subsection 73E(3)).
Banning orders—persons employed or otherwise engaged by NDIS providers
(2) The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting a person who is or was employed or otherwise engaged by an NDIS provider from engaging in specified activities if:
(a) the Commissioner reasonably believes that:
(i) the person has contravened, is contravening, or is likely to contravene this Act; or
(ii) the person has been involved in, or is likely to become involved in, a contravention of this Act by another person; or
(iii) the person is not suitable to be involved in the provision of supports or services to people with disability; or
(iv) there is an immediate danger to the health, safety or wellbeing of a person with disability if the person continues to engage in the specified activities; or
(b) the person is convicted of an offence involving fraud or dishonesty; or
(c) the person becomes an insolvent under administration.
Banning orders—persons not suitable to be involved in provision of supports or services to people with disability
(2A) The Commissioner may, by written notice, make an order (a banning order) prohibiting or restricting a person from being involved in the provision of specified supports or specified services to people with disability if:
(a) the Commissioner reasonably believes that the person is not suitable to be so involved; and
(b) the person has not previously been an NDIS provider; and
(c) the person has not previously been employed or otherwise engaged by an NDIS provider.
Application of banning orders
(3) A banning order may:
(a) apply generally or may be of limited application; and
(b) be permanent or for a specified period.
(4) However, a banning order cannot prohibit or restrict activities that a registered NDIS provider is registered to provide under 73E.
(5) A banning order takes effect from the day specified in the order.
(5A) If a banning order under subsection (2) is made against a person who is employed or otherwise engaged by an NDIS provider, the continuity of the order is not affected by the employment or engagement ceasing.
(6) A banning order is not a legislative instrument.
Process
(7) The Commissioner may only make a banning order against a person after giving the person an opportunity to make submissions to the Commissioner on the matter.
(8) However, subsection (7) does not apply if the Commissioner’s grounds for making the banning order are, or include, the following:
(a) that there is an immediate danger to the health, safety or wellbeing of a person with disability;
(b) that the Commissioner has revoked the registration of the person as a registered NDIS provider.
(9) The Commissioner must:
(a) give the banning order to the person against whom the order is made; and
(b) include in the banning order a statement of reasons for the order; and
(c) if the banning order is against a person who is employed or otherwise engaged by an NDIS provider—notify the NDIS provider of the order as soon as possible.
Civil penalty
(10) A person contravenes this subsection if:
(a) the person engages in conduct; and
(b) the conduct breaches a banning order that has been made against the person.
Civil Penalty: 1,000 penalty units.
73ZO Variation or revocation of banning orders
Variation or revocation of banning order
(1) The Commissioner may vary or revoke a banning order, by giving written notice to the person against whom the order was made, if the Commissioner is satisfied that it is appropriate to do so.
(2) The Commissioner may do so:
(a) on his or her own initiative; or
(b) on application by the person against whom the order was made.
Process
(3) An application under paragraph (2)(b) must:
(a) be in writing; and
(b) be in a form (if any) approved in writing by the Commissioner; and
(c) include any information, and be accompanied by any documents, required by the Commissioner.
(4) If the Commissioner varies a banning order made against a person, the Commissioner must, on request by the person, give the person a statement of reasons for the variation.
(5) If the Commissioner proposes not to vary or revoke a banning order in accordance with an application lodged by a person under paragraph (2)(b), the Commissioner must give the person an opportunity to make submissions to the Commissioner on the matter.
(6) The Commissioner must:
(a) include in the written notice a statement of reasons for the variation or revocation of the order; and
(b) if the variation or revocation relates to a person who is employed or otherwise engaged by an NDIS provider—notify the NDIS provider of the variation or revocation as soon as possible.
Application of variation or revocation of banning order
(7) A variation or revocation of an order takes effect from the day specified in the order.
(8) A variation or revocation of an order is not a legislative instrument.
73ZP Enforceable undertakings
Enforceable provisions
(1) The provisions of this Part are enforceable under Part 6 of the Regulatory Powers Act.
Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions.
Authorised person
(2) For the purposes of Part 6 of the Regulatory Powers Act, the Commissioner is an authorised person in relation to the provisions mentioned in subsection (1).
Relevant court
(3) For the purposes of Part 6 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions of this Act:
(a) the Federal Court;
(b) the Federal Circuit Court;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Other undertakings
(4) An authorised person may accept any of the following undertakings:
(a) a written undertaking given by a person that the person will, in order to provide compensation for loss or damage suffered as a result of a contravention or alleged contravention by the person of a provision mentioned in subsection (1), pay another person an amount worked out in accordance with the undertaking;
(b) a written undertaking given by a person in connection with a matter relating to a contravention or alleged contravention by the person of a provision mentioned in subsection (1).
(5) An undertaking under subsection (4) must be expressed to be an undertaking under that subsection.
(6) The power in subsection (4) is in addition to the power of an authorised person under subsection 114(1) of the Regulatory Powers Act.
(7) Part 6 of the Regulatory Powers Act, other than subsection 114(1), applies to an undertaking accepted under subsection (4) of this section as if it were an undertaking accepted under subsection 114(1) of the Regulatory Powers Act.
73ZQ Injunctions
Enforceable provisions
(1) The provisions of this Part are enforceable under Part 7 of the Regulatory Powers Act.
Note: Part 7 of the Regulatory Powers Act creates a framework for using injunctions to enforce provisions.
Authorised person
(2) For the purposes of Part 7 of the Regulatory Powers Act, the Commissioner is an authorised person.
Relevant court
(3) For the purposes of Part 7 of the Regulatory Powers Act, each of the following courts is a relevant court in relation to the provisions of this Act:
(a) the Federal Court;
(b) the Federal Circuit Court;
(c) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Consent injunctions
(4) A relevant court may grant an injunction under Part 7 of the Regulatory Powers Act in relation to a provision mentioned in subsection (1) by consent of all the parties to proceedings brought under that Part, whether or not the court is satisfied that section 121 of that Act applies.
73ZR Appointment of inspectors and investigators
(1) The Commissioner may, in writing, appoint a person who is one of the following as an inspector, an investigator, or both, for the purposes of this Part:
(a) a member of the staff of the Commission under section 181U;
(b) a person assisting the Commissioner under section 181W;
(c) a person performing services for the Commonwealth under a contract with the Commonwealth.
(2) The Commissioner must not appoint a person mentioned in subsection (1) unless the Commissioner is satisfied that:
(a) the person has suitable training or experience to properly exercise the powers for which the person will be authorised to use; and
(b) the person is otherwise an appropriate person to be appointed as an inspector, investigator or both (as the case requires).
(3) A person appointed under this section must, in exercising powers as such, comply with any directions of the Commissioner.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
Division 9—NDIS Provider Register
73ZS NDIS Provider Register
NDIS Provider Register
(1) The Commissioner must establish and maintain a register for the purposes of this Act, to be known as the NDIS Provider Register.
(2) The NDIS Provider Register may be kept in any form that the Commissioner considers appropriate.
Banning orders
(2A) The NDIS Provider Register must include each of the following in relation to a person against whom a banning order is in force:
(a) the name of the person;
(b) the person’s ABN (if any);
(c) information about the banning order;
(d) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
(2B) The NDIS Provider Register may include each of the following in relation to a person against whom a banning order was in force:
(a) the name of the person;
(b) the person’s ABN (if any);
(c) information about the banning order;
(d) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Registered NDIS providers
(3) The NDIS Provider Register must include each of the following for each person who is a registered NDIS provider:
(a) the name of the person;
(b) the person’s ABN (if any);
(c) the period for which the registration of the person is in force;
(d) the address of the principal place of business of the person;
(e) the classes of supports or services the person is registered to provide;
(f) if the registration is in respect of a class of persons—the class;
(g) any conditions to which the registration of the person is subject under section 73G;
(h) if the registration of the person is suspended—information about the suspension;
(j) if a compliance notice is in force in relation to the person—information about the compliance notice;
(k) if the person has given an enforceable undertaking under section 73ZP—information about the undertaking;
(l) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
NDIS providers (other than registered NDIS providers)
(4) The NDIS Provider Register may include any of the following in relation to an NDIS provider (other than a registered NDIS provider):
(a) the name of the person;
(b) the person’s ABN (if any);
(c) the address of the principal place of business of the person;
(d) the classes of supports or services the person provides;
(f) if the person is, or was, subject to a compliance notice—information about the compliance notice;
(g) if the person has given an enforceable undertaking under section 73ZP—information about the undertaking;
(h) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Former NDIS providers
(5) The NDIS Provider Register may include any of the following in relation to a person who was an NDIS provider:
(a) the name of the person;
(b) the person’s ABN (if any);
(c) the address of the person;
(e) if the person was a registered NDIS provider and the person’s registration was revoked—information about the revocation;
(f) any other matter prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Other information
(6) The Commissioner may include other information on the NDIS Provider Register if the Commissioner is satisfied that it is relevant to the provision of supports or services to people with disability.
Rules
(7) The National Disability Insurance Scheme rules may make provision for and in relation to the following:
(a) the correction of entries in the NDIS Provider Register;
(b) the publication of the NDIS Provider Register in whole or part, or of specified information entered on the NDIS Provider Register;
(c) any other matter relating to the administration or operation of the NDIS Provider Register.
Part 4—Children
74 Children
(1) If this Act requires or permits a thing to be done by or in relation to a child, the thing is to be done by or in relation to:
(a) the person who has, or the persons who jointly have, parental responsibility for the child; or
(b) if the CEO is satisfied that this is not appropriate—a person determined in writing by the CEO.
(1A) If:
(a) a State or Territory Minister; or
(b) the head (however described) of a Department of State of a State or Territory;
has parental responsibility for the child, the CEO must not make a determination under paragraph (1)(b) in relation to the child unless the Minister or the head of the Department, as the case may be, has agreed in writing to the making of the determination.
(2) If a person mentioned in subsection (1) makes a plan management request for a participant who is a child, the person may request:
(a) that the person manage the plan wholly or to the extent specified in the request; or
(b) that the plan be managed wholly, or to the extent specified in the request, by a registered plan management provider nominated by the person to manage the plan; or
(c) that the plan be managed wholly, or to the extent specified in the request, by the Agency or a person specified by the Agency.
(3) The statement of participant supports in the plan must give effect to the plan management request, except as mentioned in subsections (4) and (5).
(4) The statement of participant supports in a participant’s plan must not provide that the person referred to in paragraph (2)(a) is to manage the funding for supports under the participant’s plan:
(a) to any extent, if the person is an insolvent under administration; or
(b) to a particular extent, if the CEO is satisfied that management of the plan to that extent would:
(i) present an unreasonable risk to the participant; or
(ii) permit the person to manage matters that are prescribed by the National Disability Insurance Scheme rules as being matters that must not be managed by the person.
(5) Subsections (1) and (2) of this section do not have effect in relation to a participant who is a child if:
(a) the CEO is satisfied that the child is capable of making decisions for himself or herself; and
(b) the CEO is satisfied that it is appropriate in the circumstances for those subsections not to apply to the child; and
(c) the CEO makes a determination that those subsections do not apply to the child.
(6) The National Disability Insurance Scheme rules may prescribe requirements with which the CEO must comply, criteria that the CEO is to apply or matters to which the CEO is to have regard in deciding the following:
(a) whether to make a determination under paragraph (1)(b);
(b) whether a person managing the funding for supports under a participant’s plan would present an unreasonable risk to the participant as mentioned in paragraph (4)(b);
(c) whether a child is capable of making decisions for himself or herself as mentioned in paragraph (5)(a);
(d) whether it is appropriate for subsections (1) and (2) not to apply to a child as mentioned in paragraph (5)(b).
(7) A determination made under paragraph (5)(c) is not a legislative instrument.
75 Definition of parental responsibility
(1) For the purposes of this Act, a person has parental responsibility for a child if:
(a) the person is the child’s parent and has not ceased to have parental responsibility for the child because of an order made under the Family Law Act 1975 or a law of a State or Territory; or
(b) under a parenting order (within the meaning of the Family Law Act 1975):
(i) the child is to live with the person; or
(ii) the child is to spend time with the person; or
(iii) the person is responsible for the child’s long‑term or day‑to‑day care, welfare and development.
(2) Despite subsection (1), if, under a law of the Commonwealth, a State or a Territory, a person has guardianship of a child, that person has parental responsibility for the child, unless the CEO determines that one or more of the persons referred to in subsection (1) instead have parental responsibility for the child.
(3) If subsection (1) would result in more than one person having parental responsibility for a child, the CEO may determine that one or more of those persons have parental responsibility for the child for the purposes of this Act.
(3A) If:
(a) a State or Territory Minister; or
(b) the head (however described) of a Department of State of a State or Territory;
has guardianship of the child, the CEO must not make a determination under subsection (2) or (3) in relation to the child unless the Minister or the head of the Department, as the case may be, has agreed in writing to the making of the determination.
(4) The National Disability Insurance Scheme rules may prescribe requirements with which the CEO must comply, criteria that the CEO is to apply or matters to which the CEO is to have regard in deciding whether to make a determination under subsection (2) or (3).
(5) A determination under subsection (2) or (3) must be in writing.
(6) A determination under subsection (2) or (3) is not a legislative instrument.
76 Duty to children
(1) It is the duty of a person who may do a thing because of section 74 to ascertain the wishes of the child concerned and to act in the best interests of the child.
(2) A person does not breach the duty imposed by subsection (1) by doing a thing if, when the thing is done, the person reasonably believes that:
(a) he or she has ascertained the wishes of the child in relation to the thing; and
(b) the doing of the thing is in the best interests of the child.
(3) A person does not breach the duty imposed by subsection (1) by refraining from doing a thing if, at the relevant time, the person reasonably believes that:
(a) he or she has ascertained the wishes of the child in relation to the thing; and
(b) not doing the thing is in the best interests of the child.
(4) The National Disability Insurance Scheme rules may prescribe other duties of a person who may do a thing in relation to a child because of section 74, including duties requiring the person:
(a) to support decision‑making by the child personally; or
(b) to have regard to, and give appropriate weight to, the views of the child.
77 Revocation of determinations under section 74
(1) The CEO may, by written instrument, revoke a determination that is in effect under paragraph 74(1)(b) in relation to a person if:
(a) the person requests the CEO in writing to do so; or
(b) the CEO is satisfied that it is no longer appropriate for the determination to remain in effect.
(2) The CEO must give the person a copy of the instrument.
Part 5—Nominees
Division 1—Functions and responsibilities of nominees
78 Actions of plan nominee on behalf of participant
(1) Any act that may be done by a participant under, or for the purposes of, this Act that relates to:
(a) the preparation, review or replacement of the participant’s plan; or
(b) the management of the funding for supports under the participant’s plan;
may be done by the participant’s plan nominee, other than to the extent specified in the instrument of appointment of the plan nominee.
Note 1: For the appointment of plan nominees, see section 86.
Note 2: This subsection is subject to section 85 (which deals with the right of the nominee to attend with a participant) and subsection (4) of this section.
(2) Without limiting subsection (1), a request that may be made under this Act by a participant may be made by the participant’s plan nominee on behalf of the participant.
(3) An act done by a participant’s plan nominee because of this section has effect, for the purposes of this Act (other than this Part), as if it had been done by the participant.
(4) If, under this Act, the CEO gives a notice to a participant who has a plan nominee, subsection (1) does not extend to an act that is required by the notice to be done by the participant personally.
(5) If the participant’s plan nominee was appointed on the initiative of the CEO, the plan nominee may only do an act in relation to:
(a) the preparation, review or replacement of the participant’s plan; or
(b) the management of the funding for supports under the participant’s plan;
if the nominee considers that the participant is not capable of doing, or being supported to do, the act.
79 Actions of correspondence nominee on behalf of participant
(1) Any act that may be done by a participant under, or for the purposes of, this Act may be done by the participant’s correspondence nominee, other than an act that relates to:
(a) the preparation, review or replacement of the participant’s plan; or
(b) the management of the funding for supports under the participant’s plan.
Note 1: For the appointment of correspondence nominees, see section 87.
Note 2: This subsection is subject to section 85 (which deals with the right of the nominee to attend with a participant) and subsection (4) of this section.
(2) Without limiting subsection (1), a request that may be made under this Act by a participant may be made by the participant’s correspondence nominee on behalf of the participant.
(3) An act done by a participant’s correspondence nominee because of this section has effect, for the purposes of this Act (other than this Part), as if it had been done by the participant.
(4) If, under this Act, the CEO gives a notice to a participant who has a correspondence nominee, subsection (1) does not extend to an act that is required by the notice to be done by the participant personally.
80 Duties of nominees to participant etc.
(1) It is the duty of a nominee of a participant to ascertain the wishes of the participant and to act in a manner that promotes the personal and social wellbeing of the participant.
(2) A nominee does not breach the duty imposed by subsection (1) by doing an act if, when the act is done, the nominee reasonably believes that:
(a) he or she has ascertained the wishes of the participant in relation to the act; and
(b) the doing of the act promotes the personal and social wellbeing of the participant.
(3) A nominee does not breach the duty imposed by subsection (1) by refraining from doing an act if, at the relevant time, the nominee reasonably believes that:
(a) he or she has ascertained the wishes of the participant in relation to the act; and
(b) not doing the act promotes the personal and social wellbeing of the participant.
(4) The National Disability Insurance Scheme rules may prescribe other duties of a nominee, including duties requiring the nominee:
(a) to support decision‑making by the participant personally; or
(b) to have regard to, and give appropriate weight to, the views of the participant; or
(c) to inform the CEO and the participant if the nominee has, acquires, or is likely to acquire, any interest, pecuniary or otherwise, that conflicts or could conflict with the performance of the nominee’s duties.
81 Giving of notices to correspondence nominee
(1) Any notice that the CEO is authorised or required by this Act to give to a participant must be given by the CEO to the participant’s correspondence nominee.
(2) The notice:
(a) must, in every respect, be in the same form, and in the same terms, as if it were being given to the participant; and
(b) may be given to the correspondence nominee personally, by post or by any other means approved by the CEO.
(3) If:
(a) under subsection (1), the CEO gives a notice (the nominee notice) to a participant’s correspondence nominee; and
(b) the CEO has already given, or afterwards gives, the participant a notice that:
(i) is expressed to be given under the same provision of this Act as the nominee notice; and
(ii) makes the same requirement of the participant as the nominee notice;
section 82 ceases to have effect, or does not come into effect, as the case requires, in relation to the nominee notice.
82 Compliance by correspondence nominee
(1) If, under section 81, a notice is given to a participant’s correspondence nominee, the following paragraphs have effect:
(a) for the purposes of this Act, other than this Part, the notice is taken:
(i) to have been given to the participant; and
(ii) to have been so given on the day the notice was given to the correspondence nominee;
(b) any requirement made of the participant to:
(i) inform the CEO of a matter; or
(ii) give information, or produce a document, to an Agency officer;
may be satisfied by the correspondence nominee;
(c) any act done by the correspondence nominee for the purposes of satisfying such a requirement has effect, for the purposes of this Act, as if it had been done by the participant;
(d) if the correspondence nominee fails to satisfy such a requirement, the participant is taken, for the purposes of this Act, to have failed to comply with the requirement.
(2) To avoid doubt, for the purposes of this Act, the participant is taken to have complied with a requirement if:
(a) the requirement imposes an obligation on the participant to inform the CEO of a matter, or give information or produce a document, within a specified period; and
(b) the correspondence nominee does so within that period.
(3) To avoid doubt, for the purposes of this Act, the participant is taken not to have complied with a requirement if:
(a) the requirement imposes an obligation on the participant to inform the CEO of a matter, or give information or produce a document, within a specified period; and
(b) the correspondence nominee does not do so within that period.
83 Nominee to inform Agency of matters affecting ability to act as nominee
(1) The CEO may give a nominee of a participant a written notice that requires the nominee to inform the Agency if:
(a) either:
(i) an event or change of circumstances happens; or
(ii) the nominee becomes aware that an event or change of circumstances is likely to happen; and
(b) the event or change of circumstances is likely to affect:
(i) the ability of the nominee to act as the plan nominee or correspondence nominee of the participant (as the case may be); or
(ii) the ability of the CEO to give notices to the nominee under this Act; or
(iii) the ability of the nominee to comply with notices given to the nominee by the CEO under this Act.
(2) A notice under subsection (1) must specify:
(a) how the nominee is to inform the Agency; and
(b) the period within which the nominee is to inform the Agency, which must be a period of at least 14 days beginning on whichever of the following days is applicable:
(i) the day on which the event or change of circumstances happens;
(ii) the day on which the nominee becomes aware that the event or change of circumstances is likely to happen.
(3) A notice under subsection (1) is not ineffective only because it does not comply with paragraph (2)(a).
(4) This section extends to:
(a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(b) all persons, irrespective of their nationality or citizenship.
84 Statement by plan nominee regarding disposal of money
(1) The CEO may give the plan nominee of a participant a notice that requires the nominee to give the Agency a statement about a matter relating to the disposal by the nominee of an NDIS amount paid to the nominee on behalf of the participant.
(2) A notice under subsection (1):
(a) must specify how the plan nominee is to give the statement to the Agency; and
(b) must specify the period within which the plan nominee is to give the statement to the Agency.
(3) A notice under subsection (1) is not ineffective only because it does not comply with paragraph (2)(a).
(4) The period specified under paragraph (2)(b) must not end earlier than 14 days after the day the notice is given.
(5) A statement given in response to a notice under subsection (1) must be in accordance with a form approved by the CEO.
(6) A person commits an offence if:
(a) the person is a plan nominee; and
(b) the person refuses or fails to comply with a notice under subsection (1).
Penalty: 30 penalty units.
(7) Subsection (6) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).
(7A) It is a reasonable excuse for an individual to refuse or fail to comply with a notice under subsection (1) on the ground that to do so might tend to incriminate the individual or expose the individual to a penalty.
(8) An offence against subsection (6) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(9) This section extends to:
(a) acts, omissions, matters and things outside Australia, whether or not in a foreign country; and
(b) all persons, irrespective of their nationality or citizenship.
85 Right of nominee to attend with participant
(1) If:
(a) under this Act, the CEO makes a request of a participant who has a nominee; and
(b) the request is that the participant undergo an assessment or examination;
the nominee may accompany the participant while the assessment or examination is being conducted:
(c) if the participant so wishes; and
(d) to the extent that the person conducting the assessment or examination consents.
(2) If a participant’s nominee is a body corporate, the last reference in subsection (1) to the nominee is to be read as a reference to an officer or employee of the nominee.
Division 2—Appointment and cancellation or suspension of appointment
86 Appointment of plan nominee
(1) The CEO may, in writing, appoint a person to be a plan nominee of a participant for the purposes of this Act.
Note: The CEO must make the appointment in accordance with section 88.
(2) An appointment may be made:
(a) at the request of the participant; or
(b) on the initiative of the CEO.
(3) An appointment may limit the matters in relation to which the person is the plan nominee of the participant.
(4) An appointment may provide that it has effect for a specified term.
(5) Without limiting the manner of specifying a term for the purposes of subsection (4), it may be specified by reference to the expiry of a specified period or the occurrence of a specified event.
(6) To avoid doubt, the CEO may appoint more than one person to be a plan nominee of a participant for the purposes of this Act.
87 Appointment of correspondence nominee
(1) The CEO may, in writing, appoint a person to be the correspondence nominee of a participant for the purposes of this Act.
Note: The CEO must make the appointment in accordance with section 88.
(2) An appointment may be made:
(a) at the request of the participant; or
(b) on the initiative of the CEO.
(3) An appointment may provide that it has effect for a specified term.
(4) Without limiting the manner of specifying a term for the purposes of subsection (3), it may be specified by reference to the expiry of a specified period or the occurrence of a specified event.
88 Provisions relating to appointments
(1) A person may be appointed as the plan nominee and the correspondence nominee of the same participant.
(2) The CEO must not appoint a person as a nominee of a participant under section 86 or 87 except:
(a) with the written consent of the person to be appointed; and
(b) after taking into consideration the wishes (if any) of the participant regarding the making of the appointment.
(3) In appointing a person as a nominee of a participant under section 86 or 87, the CEO must consider whether the person is able to comply with section 80.
(4) In appointing a nominee of a participant under section 86 or 87, the CEO must have regard to whether there is a person who, under a law of the Commonwealth, a State or a Territory:
(a) has guardianship of the participant; or
(b) is a person appointed by a court, tribunal, board or panel (however described) who has power to make decisions for the participant and whose responsibilities in relation to the participant are relevant to the duties of a nominee.
(5) The CEO must cause a copy of an appointment under section 86 or 87 to be given to:
(a) the nominee; and
(b) the participant.
(6) The National Disability Insurance Scheme rules may prescribe:
(a) persons who must not be appointed as nominees; and
(b) criteria the CEO is to apply or matters to which the CEO is to have regard in considering the appointment of a nominee.
89 Circumstances in which the CEO must cancel appointment of nominees
At the request of a participant
(1) If:
(a) a person is appointed as a nominee of a participant under section 86 or 87 at the request of the participant; and
(b) the participant requests the CEO to cancel the appointment;
the CEO must, as soon as practicable, cancel the appointment by written instrument.
(2) A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the CEO must make a written record of the request.
Nominee no longer wishes to be a nominee
(3) If:
(a) a person is appointed as a nominee of a participant under section 86 or 87; and
(b) the person informs the CEO in writing that the person no longer wishes to be a nominee under that appointment;
the CEO must, as soon as practicable, cancel the appointment by written instrument.
Copy of instrument of cancellation to be given
(4) If the appointment of a person as a nominee of a participant is cancelled under this section, the CEO must give the person and participant a copy of the instrument of cancellation.
90 General circumstances in which CEO may cancel or suspend appointment of nominees
At the request of a participant
(1) If:
(a) a person is appointed as a nominee of a participant under section 86 or 87 on the initiative of the CEO; and
(b) the participant requests the CEO to cancel the appointment;
the CEO may, by written instrument, cancel the appointment.
(2) A request under paragraph (1)(b) need not be made in writing. If the request is not made in writing, the CEO must make a written record of the request.
(3) If a request is made under paragraph (1)(b):
(a) the CEO must decide whether to cancel the appointment within 14 days after receiving the request; and
(b) if the CEO decides not to cancel the appointment—the CEO must give the person and participant written notice of the CEO’s decision.
Ability to act as a nominee affected
(4) The CEO may, by written instrument, suspend or cancel one or more of a nominee’s appointments if:
(a) the CEO gives the nominee a notice under section 83; and
(b) in response to the notice, the nominee informs the Agency that an event or change of circumstances has happened or is likely to happen; and
(c) having regard to that response, the CEO is satisfied that it is appropriate to do so.
Failure to comply with a notice under section 83 or 84
(5) The CEO may, by written instrument, suspend or cancel one or more of a nominee’s appointments if:
(a) the CEO gives the nominee a notice under section 83 or 84; and
(b) the nominee does not comply with a requirement specified in the notice.
Copy of instrument of cancellation or suspension to be given
(6) If the appointment of a person as a nominee of a participant is cancelled or suspended under this section, the CEO must give the person and participant a copy of the instrument of cancellation or suspension.
91 Suspension etc. of appointment of nominees in cases of physical, mental or financial harm
Suspension of appointment
(1) The CEO may, by written instrument, suspend the appointment of a person as a nominee of a participant if the CEO has reasonable grounds to believe that the person has caused, or is likely to cause, physical, mental or financial harm to the participant.
(2) If the person’s appointment is suspended under subsection (1), the CEO must:
(a) give the person and participant a copy of the instrument of suspension; and
(b) by written notice given to the person, request the person to give the CEO, within 28 days after the notice is given, a statement setting out reasons why the person’s appointment should not be cancelled by the CEO under this section.
Cancellation of appointment following suspension
(3) If the person gives the CEO the statement within the 28‑day period, the CEO may, by written instrument, cancel the person’s appointment.
(4) The CEO must decide whether to cancel the person’s appointment under subsection (3) as soon as practicable after receiving the statement.
(5) If the CEO decides not to cancel the person’s appointment under subsection (3):
(a) the suspension of the person’s appointment ends; and
(b) the CEO must give the person and participant written notice of the CEO’s decision.
(6) If the person does not give the CEO the statement within the 28‑day period, the CEO must, by written instrument, cancel the person’s appointment as soon as practicable after that period ends.
Copy of instrument of cancellation to be given
(7) If the person’s appointment is cancelled under this section, the CEO must give the person and participant a copy of the instrument of cancellation.
92 Other matters relating to cancellation or suspension of appointment
Cancellation of appointment
(1) If:
(a) the National Disability Insurance Scheme rules made for the purposes of subsection 46(2) apply in relation to a person who is a nominee; and
(b) the appointment of the person as a nominee is cancelled under section 89, 90 or 91;
those rules continue to apply in relation to the person as if the appointment had not been cancelled.
Suspension of appointment
(2) While a person’s appointment as a nominee is suspended, the appointment has no effect for the purposes of this Act.
(3) If a person’s appointment as a nominee of a participant is suspended under section 90 or 91, the CEO may appoint another person under section 86 or 87 to be the nominee of the participant for a period specified in the instrument of appointment.
93 National Disability Insurance Scheme rules may prescribe requirements etc.
The National Disability Insurance Scheme rules may prescribe:
(a) requirements with which the CEO must comply relating to the appointment of nominees or the cancellation or suspension of the appointment of nominees; and
(b) criteria the CEO is to apply or matters to which the CEO is to have regard in appointing nominees or cancelling or suspending the appointment of nominees.
94 CEO’s powers of revocation
Nothing in this Part is an expression of a contrary intention for the purposes of subsection 33(3) of the Acts Interpretation Act 1901.
Division 3—Other matters relating to nominees
95 CEO’s powers to give notices to participant
Nothing in this Part is intended in any way to affect the CEO’s powers under other provisions of this Act to give notices to, or make requirements of, a participant who has a nominee.
96 Notification of nominee where notice is given to participant
(1) If, under this Act (other than this Part), the CEO gives a notice to a participant who has a correspondence nominee, the CEO may inform the correspondence nominee of the giving of the notice and of the terms of the notice.
(2) If, under this Act (other than this Part):
(a) the CEO gives a notice to a participant who has a plan nominee; and
(b) the notice relates to the preparation, management or review of the participant’s plan;
the CEO must inform the plan nominee of the giving of the notice and of the terms of the notice.
97 Protection of participant against liability for actions of nominee
Nothing in this Part renders a participant guilty of an offence against this Act in relation to any act or omission of the participant’s nominee.
98 Protection of nominee against criminal liability
(1) A nominee of a participant is not subject to any criminal liability under this Act in relation to:
(a) any act or omission of the participant; or
(b) anything done, in good faith, by the nominee in his or her capacity as nominee.
(2) This section has effect subject to section 84 (which deals with a statement by a plan nominee regarding the disposal of money).
Part 6—Review of decisions
99 Reviewable decisions and decision‑makers
(1) The following table sets out:
(a) the reviewable decisions under this Act; and
(b) the decision‑maker in respect of each of those decisions.
| Reviewable decisions and decision‑makers |
| Item | Column 1 Reviewable decision | Column 2 Provision under which the reviewable decision is made | Column 3 Decision‑maker |
| 1 | a decision that a person does not meet the access criteria | paragraph 20(a), subsection 21(3) or paragraph 26(2)(c) | CEO |
| 2 | a decision not to specify a period | paragraph 26(2)(b) | CEO |
| 3 | a decision to revoke a person’s status as a participant | section 30 | CEO |
| 4 | a decision to approve the statement of participant supports in a participant’s plan | subsection 33(2) | CEO |
| 5 | a decision not to extend a grace period | paragraph 40(2)(b) | CEO |
| 6 | a decision not to reassess a participant’s plan | subsection 48(2) | CEO |
| 7 | a decision to refuse to approve a person or entity as a registered provider of supports | section 70 | CEO |
| 8 | a decision to revoke an instrument approving a person or entity as a registered provider of supports | section 72 | CEO |
| 9 | a decision to refuse to register a person as a registered NDIS provider | section 73E | Commissioner |
| 10 | a decision to impose conditions to which a person’s registration as a registered NDIS provider is subject | section 73G | Commissioner |
| 11 | a decision to vary, or refuse to vary, the registration of a registered NDIS provider | section 73L | Commissioner |
| 12 | a decision to suspend the registration of a registered NDIS provider | section 73N | Commissioner |
| 13 | a decision to revoke, or not to revoke, the registration of a person as a registered NDIS provider | section 73P | Commissioner |
| 14 | a decision to give a compliance notice to an NDIS provider | section 73ZM | Commissioner |
| 15 | a decision to make a banning order | section 73ZN | Commissioner |
| 16 | a decision to vary, or to refuse to vary or revoke, a banning order | section 73ZO | Commissioner |
| 17 | a decision to make, or not to make, a determination in relation to a person | paragraph 74(1)(b) | CEO |
| 18 | a decision not to make a determination that subsections 74(1) and (2) do not apply to a child | paragraph 74(5)(c) | CEO |
| 19 | a decision to make, or not to make, a determination that a person has parental responsibility for a child | subsection 75(2) or (3) | CEO |
| 20 | a decision to appoint a plan nominee | section 86 | CEO |
| 21 | a decision to appoint a correspondence nominee | section 87 | CEO |
| 22 | a decision to cancel or suspend, or not to cancel or suspend, the appointment of a nominee | section 89, 90 or 91 | CEO |
| 23 | a decision to give a notice to require a person to take reasonable action to claim or obtain compensation | section 104 | CEO |
| 24 | a decision to refuse to extend a period | subsection 104(5A) | CEO |
| 25 | a decision to take action to claim or obtain compensation | paragraph 105(4)(a) | CEO |
| 26 | a decision to take over the conduct of a claim | paragraph 105(4)(b) | CEO |
| 27 | a decision to give a notice that the CEO proposes to recover an amount | section 111 | CEO |
| 28 | a decision not to treat the whole or part of a compensation payment as not having been fixed by a judgment or settlement | section 116 | CEO |
| 29 | a decision not to write off a debt | section 190 | CEO |
| 30 | a decision that the CEO is not required to waive a debt | section 192 | CEO |
| 31 | a decision not to waive a debt | section 193 | CEO |
| 32 | a decision that the CEO is not required to waive a debt | subsection 194(3) or (4) | CEO |
| 33 | a decision not to waive a debt | section 195 | CEO |
(2) The National Disability Insurance Scheme rules may:
(a) provide that a decision made under a specified provision of the rules is a reviewable decision; and
(b) specify the decision‑maker in respect of the reviewable decision.
100 Review of reviewable decisions
(1) The decision‑maker of a reviewable decision must give written notice of the reviewable decision to each person directly affected by the reviewable decision.
(1A) The notice must include a statement:
(a) that:
(i) the person may request a review of the reviewable decision in accordance with this section; or
(ii) if the decision‑maker is taken to have made the reviewable decision because of subsection 21(3) or 48(2)—the decision will be reviewed automatically; and
(b) that the person may seek further review under section 103.
(2) A person who is directly affected by a reviewable decision may request the decision‑maker to review the reviewable decision. If the person is given a notice under subsection (1) the person must make the request within 3 months after receiving the notice.
(3) A request may be made by:
(a) sending or delivering a written request to the decision‑maker; or
(b) making an oral request, in person or by telephone or other means, to the decision‑maker.
(4) If a person makes an oral request in accordance with paragraph (3)(b), the person receiving the oral request must:
(a) make a written record of the details of the request; and
(b) note on the record the day the request is made.
(5) If:
(a) the decision‑maker receives a request for review of a reviewable decision; or
(b) the decision‑maker is taken to have made a reviewable decision because of subsection 21(3) or 48(2);
the decision‑maker must cause the reviewable decision to be reviewed by a person (the reviewer):
(c) to whom the decision‑maker’s powers and functions under this section are delegated; and
(d) who was not involved in making the reviewable decision.
(6) The reviewer must, as soon as reasonably practicable, make a decision:
(a) confirming the reviewable decision; or
(b) varying the reviewable decision; or
(c) setting aside the reviewable decision and substituting a new decision.
(7) A request for review of a reviewable decision, or a requirement to review a reviewable decision that the decision‑maker is taken to have made, does not affect the operation of the decision or prevent the taking of action to implement the decision.
(8) A failure of the decision‑maker to comply with subsection (1) does not affect the validity of the reviewable decision or the right of a person directly affected to request review of the decision.
101 Variation of reviewable decision before review completed
If:
(a) a request is made for review of a reviewable decision; and
(b) before a decision on the review is made, the reviewable decision is varied;
the request for review is taken to be for review of the reviewable decision as varied.
102 Withdrawal of request for review
(1) A request for review of a reviewable decision may be withdrawn by:
(a) sending or delivering a written notice to the decision‑maker; or
(b) contacting the decision‑maker and withdrawing the request orally, whether in person, by telephone or by other means.
(2) If a request is withdrawn in accordance with paragraph (1)(b), the person receiving the oral withdrawal must make a written record of the details of the withdrawal and note on the record the day the withdrawal is made.
103 Applications to the Administrative Appeals Tribunal
Applications may be made to the Administrative Appeals Tribunal for review of a decision made by a reviewer under subsection 100(6).
Note: Under the Administrative Appeals Tribunal Act 1975, notice must be given to persons whose interests are affected by a decision of the reviewer.
Chapter 5—Compensation payments
Part 1—Requirement to take action to obtain compensation
104 CEO may require person to take action to obtain compensation
(1) This section applies if:
(a) a participant or a prospective participant is, or in the CEO’s opinion may be, entitled to compensation in respect of a personal injury; and
(b) the participant or prospective participant:
(i) has taken no action to claim or obtain the compensation; or
(ii) has taken no reasonable action to claim or obtain the compensation.
(2) The CEO may, by written notice, require the participant or prospective participant to take the action specified in the notice within the period specified in the notice. The action must be action that is reasonable to enable the person to claim or obtain the compensation.
(3) In considering whether it is reasonable to require a participant or prospective participant to take an action, the CEO must have regard to the following:
(a) the disability of the participant or prospective participant;
(b) the circumstances which give rise to the entitlement or possible entitlement to compensation;
(c) any impediments the participant or prospective participant may face in recovering compensation;
(d) any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation;
(e) the financial circumstances of the participant or prospective participant;
(f) the impact of the requirement to take the action on the participant or prospective participant and his or her family.
(4) The CEO must not give a notice under subsection (2) requiring a participant or prospective participant to take action to claim or obtain compensation unless the CEO is satisfied that the participant or prospective participant has reasonable prospects of success in claiming or obtaining the compensation.
(5) The period specified by the CEO must be a period of at least 28 days after the day on which the notice is given.
(5A) The CEO may, on application by the participant or prospective participant, extend the specified period.
(6) Even though a participant or a prospective participant has entered into an agreement to give up his or her right to compensation, the CEO may form the opinion that the participant or prospective participant may be entitled to compensation if the CEO is satisfied that the agreement is void, ineffective or unenforceable.
105 Consequences of failure to comply with a requirement to take action to obtain compensation
(1) A participant or prospective participant who is given a notice under subsection 104(2) requiring him or her to take action (the required action) to claim or obtain compensation within a specified period must take the required action within the period.
(2) If a participant does not take the required action within the period, and the action is to enable the participant or prospective participant to claim or obtain compensation under a scheme of compensation under a Commonwealth, State or Territory law:
(a) if a plan is in effect for the participant—the plan is suspended from the end of the specified period until the participant takes the required action; or
(b) if a plan is not yet in effect for the participant—the CEO must still comply with section 32 in relation to commencing the facilitation of the preparation of the participant’s plan, but the plan does not come into effect until the participant takes the required action.
(3) If a prospective participant does not take the required action within the period, the CEO is not prevented from deciding whether or not the prospective participant meets the access criteria and commencing the facilitation of the preparation of the participant’s plan, but the plan does not, despite section 37, come into effect until the participant takes the required action.
(4) If a participant or prospective participant does not take the required action within the period, and the action is to enable the person to claim or obtain compensation otherwise than under a scheme of compensation under a Commonwealth, State or Territory law, the CEO may:
(a) take action to claim or obtain compensation in the name of the participant or prospective participant; or
(b) take over the conduct of any existing claim.
(5) Before taking action to claim or obtain compensation, or taking over the conduct of an existing claim, the CEO must have regard to the following:
(a) the disability of the participant or prospective participant;
(b) the circumstances which give rise to the entitlement or possible entitlement to compensation;
(c) any impediments the CEO may face if the CEO takes the action or takes over the conduct of the claim;
(d) any reasons given by the participant or prospective participant as to why he or she has not claimed or obtained compensation (including in response to a notice under subsection 104(2));
(e) the impact (including any financial impact), of the CEO taking the action or taking over the conduct of the claim, on the participant or prospective participant and his or her family;
(f) any other matter the CEO considers relevant, having regard to the objects and principles set out in Part 2 of Chapter 1 of this Act.
(6) The CEO must not take any action to claim or obtain compensation, or take over the conduct of an existing claim, unless:
(a) the CEO has notified the participant or prospective participant, in writing, that the action is being considered; and
(b) 28 days have passed since the notice was given.
105A Matters relating to claims etc. by CEO
(1) If the CEO takes action to claim or obtain compensation, or takes over the conduct of an existing claim, the Agency becomes liable to pay all costs of and incidental to that claim that would otherwise be payable by the person who originally made the claim, or the person in whose name the claim was made, other than costs unreasonably incurred by that person.
(2) The CEO may:
(a) take whatever steps are appropriate to bring the claim to a conclusion; and
(b) if the claim is before a court—settle the proceedings either with or without obtaining judgement; and
(c) if the claim is before a court and judgement has been obtained in favour of the plaintiff—take such steps as are necessary to enforce the judgement.
(3) The participant or prospective participant must sign any document relevant to a claim made or taken over by the CEO under section 105 (including the settlement of the claim or of any proceedings arising out of the claim), being a document that CEO requires the participant or prospective participant to sign.
(4) If the participant or prospective participant does not sign a document in accordance with a requirement under subsection (3):
(a) if the claim is not before a court or tribunal at the time of the failure—the Federal Court of Australia may, on the application of the CEO, direct that the document be signed on behalf of the participant or prospective participant by a person appointed by CEO; and
(b) otherwise—the court or tribunal in which proceedings relating to the claim are being heard may, on the application of CEO, so direct.
(5) If the CEO proposes to make an application under subsection (4):
(a) the CEO must notify the participant or prospective participant of that fact; and
(b) the participant or prospective participant has a right of representation in the hearing of that application.
105B Recovery of amounts relating to claims etc. by CEO
Any amount obtained as a result of a claim made or taken over by the CEO under section 105 (including amounts payable as a result of the settlement of such a claim) must be paid to the Agency. The Agency must deduct from the amount of those damages:
(a) an amount equal to the total of all NDIS amounts paid to, or for the benefit of, the participant before the amount is paid to the Agency; and
(b) the amount of any costs incidental to the claim paid by the Agency.
The Agency must pay the balance to the participant or prospective participant.
Part 2—Agency may recover compensation fixed after NDIS amounts have been paid
106 Recovering past NDIS amounts from certain judgements
(1) This section applies if:
(a) an amount of compensation is fixed under a judgement (other than a consent judgement) given in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and
(b) before the day of the judgement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant’s impairment; and
(c) the judgement specifies a portion (the past NDIS support component) of the amount of compensation to be a component for supports of a kind funded or provided under the National Disability Insurance Scheme.
(2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to:
(a) unless subsection (4) or (5) applies—the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or
(b) if subsection (4) or (5) applies—the amount worked out in accordance with whichever of those subsections is applicable.
(3) If:
(a) the judgement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the participant and another person; and
(b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned;
the sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the judgement.
(4) If the recoverable amount would, apart from this subsection, exceed the past NDIS support component, the recoverable amount is taken to be the lesser of the sum of the past NDIS amounts and the past NDIS support component.
(5) If the recoverable amount would, apart from this subsection, exceed the difference (if any) between:
(a) the amount of compensation fixed by the judgement; and
(b) the sum of the amounts (if any) payable in respect of the amount of compensation under the following:
(i) the Health and Other Services (Compensation) Act 1995;
(ii) the Health and Other Services (Compensation) Care Charges Act 1995;
(iii) Part 3.14 of the Social Security Act 1991;
(iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules;
the recoverable amount is taken to be the amount of the difference.
107 Recovering past NDIS amounts from consent judgements and settlements
(1) This section applies if:
(a) an amount of compensation is fixed under a consent judgement or settlement in respect of a personal injury that has caused, to any extent, a participant’s impairment (whether or not the participant was a participant at the time of the injury); and
(b) before the day of the consent judgement or settlement, NDIS amounts (the past NDIS amounts) had been paid in respect of supports in relation to the participant’s impairment.
(2) An amount (the recoverable amount) is payable by the participant to the Agency. The recoverable amount is an amount equal to:
(a) unless subsection (4) applies—the sum of the past NDIS amounts, reduced as mentioned in subsection (3) (if applicable); or
(b) if subsection (4) applies—the amount worked out in accordance with that subsection.
(3) If:
(a) the consent judgement or settlement fixes the amount of compensation on the basis that liability for the injury should be apportioned between the participant and another person; and
(b) as a result, the amount of compensation is less than it would have been if liability had not been so apportioned;
the sum of the past NDIS amounts is to be reduced by the proportion corresponding to the proportion of liability that is apportioned to the participant by the consent judgement or settlement.
(4) If the recoverable amount would, apart from this subsection, exceed the difference (if any) between:
(a) the amount of compensation fixed under the consent judgement or settlement; and
(b) the sum of the amounts (if any) payable in respect of the amount of compensation under the following:
(i) the Health and Other Services (Compensation) Act 1995;
(ii) the Health and Other Services (Compensation) Care Charges Act 1995;
(iii) Part 3.14 of the Social Security Act 1991;
(iv) a law of the Commonwealth, a State or a Territory, prescribed by the National Disability Insurance Scheme rules;
the recoverable amount is taken to be the amount of the difference.
108 Debts resulting from section 106 or 107
An amount payable by a person under section 106 or 107 is a debt due by the person to the Agency.
Part 3—Recovery from compensation payers and insurers
109 CEO may send preliminary notice to potential compensation payer or insurer
(1) If:
(a) a participant or prospective participant makes a claim against another person (the potential compensation payer) for compensation; and
(b) the claim relates to the participant’s or prospective participant’s impairment;
the CEO may give written notice to the potential compensation payer, stating that the CEO may wish to recover an amount from the potential compensation payer.
(2) If:
(a) a participant or prospective participant makes a claim against another person (the potential compensation payer) for compensation; and
(b) the claim relates to the participant’s or prospective participant’s impairment; and
(c) an insurer may be liable, under a contract of insurance, to indemnify the potential compensation payer against any liability arising from the claim for compensation;
the CEO may give written notice to the insurer, stating that the CEO may wish to recover an amount from the insurer.
(3) A notice under subsection (1) or (2) must contain:
(a) a statement of the potential compensation payer’s or insurer’s obligation under subsection 110(1) or (2), as the case requires; and
(b) a statement of the effect of section 111 (recovery) so far as it relates to the notice.
110 Offence—potential compensation payer or insurer
(1) A person (the potential compensation payer) commits an offence if:
(a) the potential compensation payer is given a notice under subsection 109(1) in relation to a participant or prospective participant; and
(b) before or after receiving the notice, the potential compensation payer becomes liable to pay compensation to the participant or prospective participant; and
(c) the potential compensation payer does not give written notice to the CEO of the liability within 7 days after becoming liable or receiving the notice, whichever is later.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
(2) An insurer commits an offence if:
(a) the insurer is given a notice under subsection 109(2) in relation to a claim by a participant or prospective participant; and
(b) before or after receiving the notice, the insurer becomes liable to indemnify the potential compensation payer, either wholly or partly, in relation to the claim; and
(c) the insurer does not give written notice to the CEO of the liability within 7 days of becoming liable or receiving the notice, whichever is later.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
111 CEO may send recovery notice to compensation payer or insurer
(1) If:
(a) one or more NDIS amounts have been paid to a person in respect of a participant’s impairment; and
(b) a person (the compensation payer):
(i) is liable to pay compensation to the participant in relation to the impairment; or
(ii) if the compensation payer is an authority of a State or Territory—has determined that a payment by way of compensation is to be made to the participant in relation to the impairment;
the CEO may give written notice to the compensation payer that the CEO proposes to recover from the compensation payer the amount specified in the notice.
(2) If:
(a) one or more NDIS amounts have been paid to a person in respect of a participant’s impairment; and
(b) an insurer is liable, under a contract of insurance, to indemnify the compensation payer against any liability arising from a claim of the participant for compensation;
the CEO may give written notice to the insurer that the CEO proposes to recover from the insurer the amount specified in the notice.
(3) If a compensation payer or insurer is given notice under subsection (1) or (2), the compensation payer or insurer is liable to pay to the Agency the amount specified in the notice.
(4) The amount to be specified in the notice is the lesser of the following:
(a) an amount equal to the sum of the NDIS amounts referred to in paragraph (1)(a) or (2)(a);
(b) an amount equal to the recoverable amount in relation to the judgement, consent judgement or settlement to which the liability relates.
(5) A notice under this section must contain a statement of the effect of section 114 (offences) so far as it relates to such a notice.
(6) This section applies to an amount payable by way of compensation in spite of any law of the Commonwealth, a State or Territory (however expressed) under which the compensation is inalienable.
(7) If the CEO gives a person a notice under this section that the CEO proposes to recover a specified amount from the person, the specified amount is a debt due by the person to the Agency.
112 Preliminary notice or recovery notice suspends liability to pay compensation
(1) If a person (the compensation payer) has been given a notice under subsection 109(1) or 111(1) in relation to the compensation payer’s liability, or possible liability, to pay compensation, the compensation payer is not liable to pay that compensation while the notice has effect.
(2) If an insurer has been given a notice under subsection 109(2) or 111(2) in relation to the insurer’s liability, or possible liability, to indemnify a compensation payer against a liability arising from a claim for compensation:
(a) the insurer is not liable to so indemnify the compensation payer; and
(b) the compensation payer is not liable to pay that compensation;
while the notice has effect.
113 Compensation payer’s or insurer’s payment to Agency discharges liability to participant
(1) Payment to the Agency of an amount that a compensation payer is liable to pay under section 111 in relation to a participant operates, to the extent of the payment, as a discharge of:
(a) the compensation payer’s liability to pay compensation to the participant; and
(b) the participant’s liability to pay the Agency.
(2) Payment to the Agency of an amount that an insurer is liable to pay under section 111 in relation to a participant operates, to the extent of the payment, as a discharge of:
(a) the insurer’s liability to the compensation payer; and
(b) the compensation payer’s liability to pay compensation to the participant; and
(c) the participant’s liability to pay the Agency.
114 Offence—making compensation payment after receiving preliminary notice or recovery notice
(1) A person (the potential compensation payer) commits an offence if:
(a) the potential compensation payer has been given a notice under subsection 109(1) or 111(1) in relation to the payment of compensation to a participant or prospective participant; and
(b) the potential compensation payer makes the compensation payment to the participant or prospective participant.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
(2) Subsection (1) does not apply if:
(a) in the case of a notice under section 109—the CEO has given the potential compensation payer written notice that the notice is revoked; or
(b) in the case of a notice under section 111—the potential compensation payer has paid to the Agency the amount specified in the notice; or
(c) the CEO has given the potential compensation payer written permission to pay the amount.
(3) An insurer commits an offence if:
(a) the insurer has been given a notice under subsection 109(2) or 111(2) in relation to a liability to indemnify a person; and
(b) the insurer makes a payment in relation to that liability.
Penalty: Imprisonment for 12 months or 60 penalty units, or both.
Note: If a body corporate is convicted of an offence against this section, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the pecuniary penalty stated above.
(4) Subsection (3) does not apply if:
(a) in the case of a notice under section 109—the CEO has given the insurer written notice that the notice is revoked; or
(b) in the case of a notice under section 111—the insurer has paid to the Agency the amount specified in the notice; or
(c) the CEO has given the insurer written permission to pay the amount.
115 Liability to pay the Agency if there is a contravention of section 114
(1) A potential compensation payer or insurer who contravenes section 114 is, in addition to being liable under that section, liable to pay to the Agency:
(a) if the contravention relates to a notice under section 109—an amount determined by the CEO; or
(b) if the contravention relates to a notice under section 111—the amount specified in the notice.
(2) The amount determined by the CEO under paragraph (1)(a) must not be more than the amount that would have been specified in a notice under section 111 if one had been given.
(3) This section applies in relation to a payment by way of compensation in spite of any law of the Commonwealth, a State or Territory (however expressed) under which the compensation is inalienable.
(4) The amount determined by the CEO under paragraph (1)(a) or specified in the notice under section 111 is a debt due by the compensation payer or the insurer to the Agency.
Part 4—CEO may disregard certain payments
116 CEO may disregard certain payments
For the purposes of this Chapter, the CEO may treat the whole or part of a compensation payment as not having been fixed by a judgement (including a consent judgement) or settlement, if the CEO thinks it is appropriate to do so in the special circumstances of the case.
Chapter 6—National Disability Insurance Scheme Launch Transition Agency
Part 1—National Disability Insurance Scheme Launch Transition Agency
117 Establishment
(1) The National Disability Insurance Scheme Launch Transition Agency is established by this section.
(2) The Agency:
(a) is a body corporate; and
(b) must have a seal; and
(c) may acquire, hold and dispose of real and personal property; and
(d) may sue and be sued.
Note: The Public Governance, Performance and Accountability Act 2013 applies to the Agency. That Act deals with matters relating to corporate Commonwealth entities, including reporting and the use and management of public resources.
(3) The seal of the Agency is to be kept in such custody as the Board directs and must not be used except as authorised by the Board.
118 Functions of the Agency
(1) The Agency has the following functions:
(a) to deliver the National Disability Insurance Scheme so as to:
(i) support the independence, and social and economic participation, of people with disability; and
(ii) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(iii) ensure that the decisions and preferences of people with disability are respected and given appropriate priority; and
(iv) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and inclusion in the community; and
(v) ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk;
(b) to manage, and to advise and report on, the financial sustainability of the National Disability Insurance Scheme including by:
(i) regularly making and assessing estimates of the current and future expenditure of the National Disability Insurance Scheme; and
(ii) identifying and managing risks and issues relevant to the financial sustainability of the National Disability Insurance Scheme; and
(iii) considering actuarial advice, including advice from the scheme actuary and the reviewing actuary;
(c) to develop and enhance the disability sector, including by facilitating innovation, research and contemporary best practice in the sector;
(d) to build community awareness of disabilities and the social contributors to disabilities;
(e) to collect, analyse and exchange data about disabilities and the supports (including early intervention supports) for people with disability;
(f) to undertake research relating to disabilities, the supports (including early intervention supports) for people with disability and the social contributors to disabilities;
(g) any other functions conferred on the Agency by or under this Act, the regulations or an instrument made under this Act;
(h) to do anything incidental or conducive to the performance of the above functions.
(2) In performing its functions, the Agency must use its best endeavours to:
(a) act in accordance with any relevant intergovernmental agreements; and
(b) act in a proper, efficient and effective manner.
119 Powers of the Agency
(1) The Agency has power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(2) The Agency’s powers include, but are not limited to, the following powers:
(a) the power to enter into contracts;
(b) the power to accept gifts, devises, bequests and assignments.
120 Charging of fees
(1) The Agency may charge fees in accordance with an instrument made under subsection (2).
(2) The Minister may, by legislative instrument, prescribe:
(a) the things that the Agency does in the performance of its functions for which it may charge fees; and
(b) the amount, or a method of working out the amount, of those fees.
(3) An instrument made under subsection (2) must not allow:
(a) a fee to be charged in relation to an access request; or
(b) a participant to be charged a fee.
(4) The Minister must not make an instrument under subsection (2) unless the Commonwealth and each host jurisdiction agree to the making of the instrument.
Process for seeking agreement
(4A) The Minister must:
(a) give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the making of the instrument and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and
(b) provide a copy of the proposed instrument to that host jurisdiction Minister.
(4B) If, immediately before the end of that 28‑day period:
(a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the instrument; and
(b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (4C);
then, at the end of that period, that host jurisdiction is taken to have agreed to the making of the instrument.
(4C) If, before the end of that 28‑day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the making of the instrument:
(a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and
(b) if, immediately before the end of that 90‑day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the making of the instrument, then, at the end of that period, that host jurisdiction is taken to have so agreed.
Fee must not amount to taxation
(5) A fee must not be such as to amount to taxation.
121 Minister may give directions to the Agency
(1) The Minister may, by legislative instrument, give directions to the Agency about the performance of its functions.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) A direction given under subsection (1):
(a) must not relate to a particular individual; and
(b) must not be inconsistent with:
(i) this Act, the regulations or an instrument made under this Act; or
(ii) the Public Governance, Performance and Accountability Act 2013, or any instrument made under that Act.
(3) The Minister must not give a direction under subsection (1) unless the Commonwealth and each host jurisdiction agree to the giving of the direction.
Process for seeking agreement
(3A) The Minister must:
(a) give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the giving of the direction and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and
(b) provide a copy of the proposed direction to that host jurisdiction Minister.
(3B) If, immediately before the end of that 28‑day period:
(a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the giving of the direction; and
(b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (3C);
then, at the end of that period, that host jurisdiction is taken to have agreed to the giving of the direction.
(3C) If, before the end of that 28‑day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the giving of the direction:
(a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and
(b) if, immediately before the end of that 90‑day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the giving of the direction, then, at the end of that period, that host jurisdiction is taken to have so agreed.
Agency must comply with direction
(4) The Agency must comply with a direction given under subsection (1).
122 Agency does not have privileges and immunities of the Crown
The Agency does not have privileges and immunities of the Crown in right of the Commonwealth.
Part 2—Board of the Agency
Division 1—Establishment and functions
123 Establishment
The Board of the Agency is established by this section.
124 Functions of the Board
(1) The Board has the following functions:
(a) to ensure the proper, efficient and effective performance of the Agency’s functions;
(b) to determine objectives, strategies and policies to be followed by the Agency;
(c) any other functions conferred on the Board by or under:
(i) this Act, the regulations or an instrument made under this Act; or
(ii) any other law of the Commonwealth.
(2) The Board has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions.
(3) Anything done in the name of, or on behalf of, the Agency by the Board, or with the authority of the Board, is taken to have been done by the Agency.
125 Minister may give the Board a statement setting out strategic guidance for the Agency
(1) The Minister may give the Board a written statement setting out strategic guidance for the Agency.
(2) A statement given under subsection (1):
(a) must be of a general nature only; and
(b) must not relate to a particular individual; and
(c) must not be inconsistent with:
(i) this Act, the regulations or an instrument made under this Act; or
(ii) the Public Governance, Performance and Accountability Act 2013, or any instrument made under that Act.
(3) The Minister must not give a statement under subsection (1) unless the Commonwealth and each host jurisdiction agree to the giving of the statement.
Process for seeking agreement
(3A) The Minister must:
(a) give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the giving of the statement and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and
(b) provide a copy of the proposed statement to that host jurisdiction Minister.
(3B) If, immediately before the end of that 28‑day period:
(a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the giving of the statement; and
(b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (3C);
then, at the end of that period, that host jurisdiction is taken to have agreed to the giving of the statement.
(3C) If, before the end of that 28‑day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the giving of the statement:
(a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and
(b) if, immediately before the end of that 90‑day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the giving of the statement, then, at the end of that period, that host jurisdiction is taken to have so agreed.
Board must have regard to statement
(4) In performing its functions, the Board must have regard to a statement given under subsection (1).
Statement not a legislative instrument
(5) A statement given under subsection (1) is not a legislative instrument.
125A Matters to be considered in performing functions
In performing its functions, the Board must have regard to:
(a) relevant actuarial analysis and advice; and
(b) relevant advice and reports provided by the audit committee for the Agency.
Note: See section 45 of the Public Governance, Performance and Accountability Act 2013 (which deals with audit committees for Commonwealth entities).
125B Rules about management of risk and performance of Board’s functions
The Minister administering the Insurance Act 1973 may, by legislative instrument, determine rules that:
(a) relate to the management of risks, whether financial or not, that are likely to be faced by the Agency; and
(b) must be complied with by the Board in performing its functions.
Division 2—Members of the Board
126 Membership
The Board consists of the Chair and up to 11 other members.
127 Appointment of Board members
(1) The Board members are to be appointed by the Minister, by written instrument, on a part‑time basis.
(2) A person is eligible for appointment as a Board member only if the Minister is satisfied that the person has skills, experience or knowledge in at least one of the following fields:
(a) the provision or use of disability services;
(b) the operation of insurance schemes, compensation schemes or schemes with long‑term liabilities;
(c) financial management;
(d) corporate governance.
Procedures relating to appointment
(3) The Minister must consult the host jurisdictions about the appointment of the Chair.
(4) Before the Minister appoints a Board member other than the Chair, the Minister must:
(a) seek the support of all the host jurisdictions for the appointment; and
(b) be satisfied that the appointment is supported by:
(i) the Commonwealth; and
(ii) a majority of the group consisting of the Commonwealth and the host jurisdictions.
(4A) The Minister must give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the appointment covered by subsection (4) and requesting the agreement be given before the end of 28 days beginning on the day the notice is given.
(4B) If, immediately before the end of that 28‑day period:
(a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the appointment; and
(b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (4C);
then, at the end of that period, that host jurisdiction is taken to have agreed to the appointment.
(4C) If, before the end of that 28‑day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the appointment:
(a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and
(b) if, immediately before the end of that 90‑day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the appointment, then, at the end of that period, that host jurisdiction is taken to have so agreed.
(4D) Despite subsection (4), the Minister may appoint a person as a Board member other than the Chair if:
(a) the appointment is not supported by a majority of the group consisting of the Commonwealth and the host jurisdictions; and
(b) the period of 90 days beginning on the day the first notice was given under subsection (4A) in relation to that appointment has ended.
Persons ineligible for appointment
(5) Despite subsection (2), a person is not eligible for appointment as a Board member if the person is:
(a) a member (however described) of:
(i) the Parliament of the Commonwealth or a State; or
(ii) the legislature of a Territory; or
(iii) a local government authority; or
(b) an employee of the Commonwealth, a State, a Territory or a local government authority; or
(c) the holder of a full‑time office under a law of the Commonwealth, a State or a Territory.
Balance of skills etc.
(6) In appointing the Board members, the Minister must ensure that the Board members collectively possess an appropriate balance of skills, experience or knowledge in the fields mentioned in subsection (2).
128 Term of appointment
A Board member holds office for the period specified in the instrument of appointment. The period must not be more than 3 years.
Note: For reappointment, see section 33AA of the Acts Interpretation Act 1901.
129 Acting appointments
Appointment to act during vacancy
(1) The Minister may, by written instrument, appoint a person to act as the Chair, for a specified period of not more than 12 months, during a vacancy in the office of the Chair, whether or not an appointment has previously been made to the office.
(2) The Minister may, by written instrument, appoint a person to act as a Board member other than the Chair, for a specified period of not more than 150 days, during a vacancy in the office of a Board member other than the Chair, whether or not an appointment has previously been made to the office.
(2A) The Minister must consult the States and Territories about an appointment under subsection (2).
Appointment to act during absence etc.
(3) The Minister may, by written instrument, appoint a person to act as a Board member during any period, or during all periods, when a Board member:
(a) is absent from duty or from Australia; or
(b) is, for any reason, unable to perform the duties of the office.
Note: The Minister must tell the Ministerial Council as soon as practicable after the Minister appoints a person to act as the Chair or another Board member: see subsection 176(2).
Eligibility for appointment
(4) A person is eligible for appointment under subsection (1), (2) or (3) only if the Minister is satisfied that the person has skills, experience or knowledge in at least one of the fields mentioned in subsection 127(2).
(5) Despite subsection (4), a person is not eligible for appointment under subsection (1), (2) or (3) if the person is:
(a) a member (however described) of:
(i) the Parliament of the Commonwealth or a State; or
(ii) the legislature of a Territory; or
(iii) a local government authority; or
(b) the holder of a full‑time office under a law of the Commonwealth, a State or a Territory.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
130 Remuneration and allowances
(1) A Board member is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.
(2) A Board member is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
131 Leave of absence
Chair
(1) The Minister may grant leave of absence to the Chair on the terms and conditions that the Minister determines.
(2) Before the Minister grants leave of absence to the Chair under subsection (1), the Minister must consult the host jurisdictions about the grant.
Other Board members
(3) The Chair may grant leave of absence to another Board member on the terms and conditions that the Chair determines.
(4) The Chair must notify the Minister if the Chair grants another Board member leave of absence for a period that exceeds 3 months.
132 Outside employment
A Board member must not engage in any paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the member’s duties.
133 Resignation of Board members
(1) A Board member may resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
(3) The later day specified in the resignation must not be more than 90 days after the day the resignation is received by the Minister.
134 Termination of appointment of Board members
(1) The Minister may terminate the appointment of a Board member:
(a) for misbehaviour; or
(b) if the member is incapable of performing the duties of his or her office; or
(c) if the Minister does not have confidence in the member.
(2) The Minister may terminate the appointment of a Board member if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Board; or
(c) the member engages in paid employment that, in the Minister’s opinion, conflicts or may conflict with the proper performance of the member’s duties (see section 132); or
(e) the Minister is satisfied that the performance of the member has been unsatisfactory for a significant period.
Note: The appointment of a board member may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
Procedures relating to termination
(3) The Minister must consult the host jurisdictions about the termination of the appointment of the Chair.
(4) Before the Minister terminates the appointment of a Board member other than the Chair, the Minister must:
(a) seek the support of all the host jurisdictions for the termination; and
(b) be satisfied that the termination is supported by:
(i) the Commonwealth; and
(ii) a majority of the group consisting of the Commonwealth and the host jurisdictions.
(4A) The Minister must give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the termination covered by subsection (4) and requesting the agreement be given before the end of 28 days beginning on the day the notice is given.
(4B) If, immediately before the end of that 28‑day period:
(a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the termination; and
(b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (4C);
then, at the end of that period, that host jurisdiction is taken to have agreed to the termination.
(4C) If, before the end of that 28‑day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the termination:
(a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and
(b) if, immediately before the end of that 90‑day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the termination, then, at the end of that period, that host jurisdiction is taken to have so agreed.
Termination under the Public Governance, Performance and Accountability Act 2013
(5) Subsections (3) to (4C) are taken to apply in relation to the termination of the appointment of a Board member under section 30 of the Public Governance, Performance and Accountability Act 2013 in the same way as those subsections apply to a termination under this section.
135 Other terms and conditions of Board members
(1) A Board member holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
(2) Before the Minister determines terms and conditions on which a Board member holds office, the Minister must be satisfied that the Commonwealth and a majority of host jurisdictions agree to the terms and conditions.
Process for seeking agreement
(3) The Minister must:
(a) give a notice (the original notice) in writing to one host jurisdiction Minister for each host jurisdiction seeking the agreement of that host jurisdiction to the terms and conditions and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and
(b) provide a copy of the proposed terms and conditions to that host jurisdiction Minister.
(4) If, immediately before the end of that 28‑day period:
(a) no host jurisdiction Minister for a host jurisdiction has informed the Minister whether that host jurisdiction agrees to the terms and conditions; and
(b) no host jurisdiction Minister for that host jurisdiction has made a request under subsection (5);
then, at the end of that period, that host jurisdiction is taken to have agreed to the terms and conditions.
(5) If, before the end of that 28‑day period, a host jurisdiction Minister for a host jurisdiction gives a notice in writing to the Minister requesting a longer period within which that host jurisdiction may agree to the terms and conditions:
(a) that host jurisdiction may give that agreement before the end of 90 days beginning on the day the original notice was given; and
(b) if, immediately before the end of that 90‑day period, no host jurisdiction Minister for that host jurisdiction has informed the Minister whether that host jurisdiction agrees to the terms and conditions, then, at the end of that period, that host jurisdiction is taken to have so agreed.
Division 3—Meetings of the Board
136 Convening meetings
(1) The Board must hold the meetings that are necessary for the efficient performance of its functions.
(2) Meetings are to be held at the times and places that the Board determines.
Note: Section 33B of the Acts Interpretation Act 1901 contains further information about the ways in which Board members may participate in meetings.
(3) The Chair:
(a) may convene a meeting; and
(b) must convene at least 4 meetings each calendar year; and
(c) must convene a meeting within 30 days of receiving a written request to do so from another Board member.
137 Presiding at meetings
(1) The Chair must preside at all meetings at which he or she is present.
(2) If the Chair is not present at a meeting:
(a) a Board member nominated by the Chair presides; or
(b) if a Board member has not been nominated by the Chair to preside—the other Board members present must appoint one of themselves to preside.
138 Quorum
(1) At a meeting of the Board, a quorum is constituted by a majority of the Board members.
(2) However, if:
(a) a Board member is required by rules made for the purposes of section 29 of the Public Governance, Performance and Accountability Act 2013 not to be present during the deliberations, or to take part in any decision, of the Board with respect to a particular matter; and
(b) when the member leaves the meeting concerned there is no longer a quorum present;
the remaining members at the meeting constitute a quorum for the purpose of any deliberation or decision at that meeting with respect to that matter.
139 Voting at meetings
(1) A question arising at a meeting is to be determined by a majority of the votes of the Board members present and voting.
(2) The person presiding at a meeting has a deliberative vote and, if the votes are equal, a casting vote.
140 Conduct of meetings
The Board may, subject to this Division, regulate proceedings at its meetings as it considers appropriate.
141 Minutes
The Board must keep minutes of its meetings.
142 Decisions without meetings
(1) The Board is taken to have made a decision at a meeting if:
(a) without meeting, a majority of the Board members entitled to vote on the proposed decision indicate agreement with the decision; and
(b) that agreement is indicated in accordance with the method determined by the Board under subsection (2); and
(c) all the Board members were informed of the proposed decision, or reasonable efforts were made to inform all the members of the proposed decision.
(2) Subsection (1) applies only if the Board:
(a) has determined that it may make decisions of that kind without meeting; and
(b) has determined the method by which Board members are to indicate agreement with proposed decisions.
(3) For the purposes of paragraph (1)(a), a Board member is not entitled to vote on a proposed decision if the member would not have been entitled to vote on that proposal if the matter had been considered at a meeting of the Board.
(4) The Board must keep a record of decisions made in accordance with this section.
Part 3—Independent Advisory Council
Division 1—Establishment and function
143 Establishment
The Independent Advisory Council is established by this section.
144 Function of the Advisory Council
(1) The Advisory Council’s function is to provide, on its own initiative or at the written request of the Board, advice to the Board about the way in which the Agency:
(a) performs its functions relating to the National Disability Insurance Scheme; and
(b) supports the independence and social and economic participation of people with disability; and
(c) provides reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme launch; and
(d) enables people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
(e) facilitates the development of a nationally consistent approach to the access to, and the planning and funding of, supports for people with disability; and
(f) promotes the provision of high quality and innovative supports to people with disability; and
(g) raises community awareness of the issues that affect the social and economic participation of people with disability, and facilitates greater community inclusion of people with disability.
(2) In providing advice, the Advisory Council must have regard to the role of families, carers and other significant persons in the lives of people with disability.
(3) Advice provided by the Advisory Council must not relate to:
(a) a particular individual; or
(b) the approval of a person or entity as a registered provider of supports or the revocation of that approval; or
(ba) the registration of a person or entity as a registered NDIS provider, or the variation, suspension or revocation of that registration; or
(c) the corporate governance of the Agency or the Commission; or
(d) the money paid to, or received by, the Agency.
(4) The Advisory Council has power to do all things necessary or convenient to be done for or in connection with the performance of its function.
145 Advice of the Advisory Council
If the Advisory Council provides advice to the Board under subsection 144(1), the Board must:
(a) have regard to the advice in performing its functions; and
(b) give the Ministerial Council a copy of the advice and a statement setting out what has been done, or is to be done, in response to the advice.
Division 2—Members of the Advisory Council
146 Membership
The Advisory Council is to consist of the following members:
(a) the Principal Member of the Council;
(b) not more than 12 other members.
147 Appointment of members of the Advisory Council
(1) The members of the Advisory Council are to be appointed by the Minister, by written instrument, on a part‑time basis.
Consultation
(2) The Minister must consult the host jurisdictions about the appointment of each member of the Advisory Council.
Persons ineligible for appointment
(4) A person is not eligible for appointment as a member of the Advisory Council if the person is a member (however described) of:
(a) the Parliament of the Commonwealth or a State; or
(b) the legislature of a Territory; or
(c) a local government authority.
Membership requirements
(5) In appointing the members of the Advisory Council, the Minister must:
(a) have regard to the desirability of the membership of the Advisory Council reflecting the diversity of people with disability; and
(b) ensure that all members are persons with skills, experience or knowledge that will help the Advisory Council perform its function; and
(c) ensure that:
(i) a majority of the members are people with disability; and
(ii) at least 2 of the members are carers of people with disability; and
(iii) at least one of the members is a person who has skills, experience or knowledge in relation to disability in rural or regional areas; and
(iv) at least one of the members is a person who has skills, experience or knowledge in the supply of equipment, or the provision of services, to people with disability.
Note: A particular member may meet one or more of the conditions in subparagraphs (5)(c)(ii), (iii) and (iv).
148 Term of appointment
A member of the Advisory Council holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.
Note: For reappointment, see section 33AA of the Acts Interpretation Act 1901.
149 Acting appointments
Appointment to act during vacancy
(1) The Minister may, by written instrument, appoint a person to act as the Principal Member, for a specified period of not more than 12 months, during a vacancy in the office of the Principal Member, whether or not an appointment has previously been made to the office.
(2) The Minister may, by written instrument, appoint a person to act as a member of the Advisory Council other than the Principal Member, for a specified period of not more than 150 days, during a vacancy in the office of a member of the Advisory Council other than the Principal Member, whether or not an appointment has previously been made to the office.
(2A) The Minister must consult the States and Territories about an appointment under subsection (2).
Appointment to act during absence etc.
(3) The Minister may, by written instrument, appoint a person to act as a member of the Advisory Council during any period, or during all periods, when a member of the Advisory Council:
(a) is absent from duty or from Australia; or
(b) is, for any reason, unable to perform the duties of the office.
Note 1: The Minister must tell the Ministerial Council as soon as practicable after the Minister appoints a person to act as the Principal Member or another member of the Advisory Council: see subsection 176(2).
Note 2: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
150 Remuneration and allowances
(1) A member of the Advisory Council is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the member is to be paid the remuneration that is prescribed by the regulations.
(2) A member of the Advisory Council is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
151 Leave of absence
Principal Member
(1) The Minister may grant leave of absence to the Principal Member on the terms and conditions that the Minister determines.
(2) Before the Minister grants leave of absence to the Principal Member under subsection (1), the Minister must consult the host jurisdictions about the grant.
Other members
(3) The Principal Member may grant leave of absence to another member of the Advisory Council on the terms and conditions that the Principal Member determines.
(4) The Principal Member must notify the Minister if the Principal Member grants another member of the Advisory Council leave of absence for a period that exceeds 3 months.
152 Disclosure of interests to the Minister
A member of the Advisory Council must give written notice to the Minister of all interests, pecuniary or otherwise, that the member has or acquires and that conflict or could conflict with the proper performance of the member’s functions.
153 Disclosure of interests to the Advisory Council
(1) A member of the Advisory Council who has an interest, pecuniary or otherwise, in a matter being considered or about to be considered by the Council must disclose the nature of the interest to a meeting of the Council.
(2) The disclosure must be made as soon as possible after the relevant facts have come to the member’s knowledge.
(3) The disclosure must be recorded in the minutes of the meeting.
(4) Unless the Advisory Council otherwise determines, the member:
(a) must not be present during any deliberation by the Council on the matter; and
(b) must not take part in any decision of the Council with respect to the matter.
(5) For the purposes of making a determination under subsection (4), the member:
(a) must not be present during any deliberation of the Council for the purpose of making the determination; and
(b) must not take part in making the determination.
(6) A determination under subsection (4) must be recorded in the minutes of the meeting of the Council.
154 Resignation of members of the Advisory Council
(1) A member of the Advisory Council may resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
(3) The later day specified in the resignation must not be more than 90 days after the day the resignation is received by the Minister.
155 Termination of appointment of members of the Advisory Council
(1) The Minister may terminate the appointment of a member of the Advisory Council:
(a) for misbehaviour; or
(b) if the member is incapable of performing the duties of his or her office.
(2) The Minister may terminate the appointment of a member of the Advisory Council if:
(a) the member:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the member is absent, except on leave of absence, from 3 consecutive meetings of the Council; or
(c) the member fails, without reasonable excuse, to comply with section 152 or 153 (which deal with the disclosure of interests); or
(d) the Minister is satisfied that the performance of the member has been unsatisfactory for a significant period.
Consultation
(3) The Minister must consult the host jurisdictions about the termination of the appointment of a member of the Advisory Council.
156 Other terms and conditions of members of the Advisory Council
(1) A member of the Advisory Council holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Minister.
Consultation
(2) Before the Minister determines terms and conditions on which a member of the Advisory Council holds office, the Minister must consult the host jurisdictions about the terms and conditions.
Division 3—Procedures of the Advisory Council
157 Procedures of the Advisory Council
The Advisory Council may determine its own procedures.
Part 4—Chief Executive Officer and staff etc.
Division 1—Chief Executive Officer
158 Establishment
There is to be a Chief Executive Officer of the Agency.
159 Functions of the CEO
(1) The CEO is responsible for the day‑to‑day administration of the Agency.
(2) The CEO has power to do all things necessary or convenient to be done for or in connection with the performance of his or her duties.
(3) The CEO is to act in accordance with the objectives, strategies and policies determined by the Board under paragraph 124(1)(b).
(4) The Board may give written directions to the CEO about the performance of the CEO’s duties.
(5) The CEO must comply with a direction under subsection (4).
(6) A direction under subsection (4) is not a legislative instrument.
(7) The CEO must give the Board a copy of any significant actuarial report or advice he or she receives, as soon as reasonably practicable after receiving it.
160 Appointment of the CEO
(1) The CEO is to be appointed by the Board.
(2) The appointment is to be made by written instrument.
(3) The CEO holds office on a full‑time basis.
(4) The CEO holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.
Note: For reappointment, see section 33AA of the Acts Interpretation Act 1901.
(5) The CEO must not be a member of the Board.
(6) Despite subsection (1), the first CEO is to be appointed by the Minister.
(7) Before the Minister makes an appointment under subsection (6), the Minister must consult the host jurisdictions about the appointment.
(8) This Part (other than subsection (1)) applies to the CEO appointed under subsection (6) as if the CEO had been appointed under subsection (1).
161 Acting appointments
The Board may, by written instrument, appoint a person (other than a Board member) to act as the CEO:
(a) during a vacancy in the office of the CEO, whether or not an appointment has previously been made to the office; or
(b) during any period, or during all periods, when the CEO:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
162 Remuneration and allowances
(1) The CEO is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the CEO is to be paid the remuneration that is prescribed by the regulations.
(2) The CEO is to be paid the allowances that are prescribed by the regulations.
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
163 Leave of absence
(1) The CEO has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Board may grant the CEO leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Board determines.
164 Outside employment
The CEO must not engage in paid employment outside the duties of his or her office without the Board’s approval.
165 Disclosure of interests
(1) A disclosure by the CEO under section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) must be made to the Board.
(2) Subsection (1) applies in addition to any rules made for the purposes of that section.
(3) For the purposes of this Act and the Public Governance, Performance and Accountability Act 2013, the CEO is taken not to have complied with section 29 of that Act if the CEO does not comply with subsection (1) of this section.
166 Resignation of the CEO
(1) The CEO may resign his or her appointment by giving the Board a written resignation.
(2) The resignation takes effect on the day it is received by the Board or, if a later day is specified in the resignation, on that later day.
(3) The later day specified in the resignation must not be more than 90 days after the day the resignation is received by the Board.
167 Termination of appointment of the CEO
(1) The Board may terminate the appointment of the CEO:
(a) for misbehaviour; or
(b) if the CEO is incapable of performing the duties of his or her office.
(2) The Board may terminate the appointment of the CEO if:
(a) the CEO:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the CEO is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the CEO engages, except with the Board’s approval, in paid employment outside the duties of his or her office (see section 164); or
(d) the CEO fails, without reasonable excuse, to comply with section 29 of the Public Governance, Performance and Accountability Act 2013 (which deals with the duty to disclose interests) or rules made for the purposes of that section; or
(e) the Board is satisfied that the performance of the CEO has been unsatisfactory for a significant period.
(3) If the Board terminates the appointment of the CEO, the Board must notify the Minister of the termination.
168 Other terms and conditions of the CEO
The CEO holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined by the Board.
Division 2—Staff etc.
169 Staff
(1) The staff of the Agency must be persons engaged under the Public Service Act 1999.
(2) For the purposes of that Act:
(a) the CEO and the staff of the Agency together constitute a Statutory Agency; and
(b) the CEO is the Head of that Statutory Agency.
170 Services of other persons to be made available to the Agency
(1) The Agency may arrange with:
(a) an Agency Head (within the meaning of the Public Service Act 1999) of an Agency (within the meaning of that Act); or
(b) a body established for a public purpose by or under a law of the Commonwealth;
for the services of officers or employees of the Agency referred to in paragraph (a) or body to be made available to assist the Agency in the performance of its functions.
(2) The Agency may arrange with the appropriate authority of a State or Territory for the services of officers or employees of the following to be made available to assist the Agency in the performance of its functions:
(a) the Public Service of the State or Territory;
(b) a body established for a public purpose by or under a law of the State or Territory.
171 Consultants
The Agency may engage consultants to assist in the performance of its functions.
171A Transitional provisions for staff of the Agency
Schedule 1 has effect.
Part 5—Reporting and planning
Division 1—Reporting
Subdivision A—Reporting by Board members
172 Annual report
(1) The annual report prepared by the Board members and given to the Minister under section 46 of the Public Governance, Performance and Accountability Act 2013 must include the things described in subsections (2) and (4).
(2) The annual report must include the following for the period to which the report relates:
(a) details of any directions given under section 121 in the period;
(b) details of any statements given under section 125 in the period;
(c) information (including statistics) and analysis that relates to either or both of the following in the period:
(i) participants;
(ii) funding or provision of supports by the Agency.
(3) The Minister may, by legislative instrument, prescribe particular information, or analysis, described in paragraph (2)(c) that must be included in the annual report.
(4) The annual report must include:
(a) the summary, that was prepared under section 180B when the annual report was being prepared, of the annual financial sustainability report prepared then; and
(b) the report of the reviewing actuary’s review under subsection 180E(2) of the summary mentioned in paragraph (a).
Prerequisite to making instrument under subsection (3)
(6) The Minister must not make an instrument under subsection (3) unless a majority of the members of the Ministerial Council agree to the making of the instrument.
(7) The Minister must:
(a) give a notice (the original notice) in writing to each member of the Ministerial Council who is a Minister of a State or Territory seeking the agreement of that member to the making of the instrument and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and
(b) provide a copy of the proposed instrument to that member.
(8) If, immediately before the end of that 28‑day period, that member:
(a) has not informed the Minister whether that member agrees to the making of the instrument; and
(b) has not made a request under subsection (9);
then, at the end of that period, that member is taken to have agreed to the making of the instrument.
(9) If, before the end of that 28‑day period, that member gives a notice in writing to the Minister requesting a longer period within which that member may agree to the making of the instrument:
(a) that member may give that agreement before the end of 90 days beginning on the day the original notice was given; and
(b) if, immediately before the end of that 90‑day period, that member has not informed the Minister whether that member agrees to the making of the instrument, then, at the end of that period, that member is taken to have so agreed.
173 Giving certain information to the Ministerial Council
(1) The Board members must give the Ministerial Council a copy of each of the following when, or as soon as practicable after, the Board members give the copy to the Minister or the Finance Minister:
(a) information, a report or a document given to the Minister or the Finance Minister under paragraph 19(1)(b) of the Public Governance, Performance and Accountability Act 2013;
(b) particulars of a decision or issue notified to the Minister under paragraph 19(1)(c), (d) or (e) of that Act;
(c) an annual report given to the Minister under section 46 of that Act.
(1A) If the Board members inform the Minister of activities under paragraph 19(1)(a) of that Act, the Board members must also inform the Ministerial Council of the activities.
(2) The Board members must cause a copy of information the Agency gives the Minister or a host jurisdiction Minister under section 175 to be given to the Ministerial Council as soon as practicable after the Agency gives the information to that Minister.
(3) As soon as practicable after any of the following events happens to a person, the Board members must tell the Ministerial Council that the event has happened to the person:
(a) appointment of the person as the CEO by the Board;
(b) resignation of the person as the CEO;
(c) termination of the person’s appointment as the CEO.
174 Quarterly report to the Ministerial Council
(1) The Board members must:
(a) prepare a report on the operations of the Agency for each period of 3 months starting on 1 July, 1 October, 1 January or 1 April; and
(b) give the report to the Ministerial Council within 1 month after the end of the period to which the report relates.
(2) The report must include information (including statistics) that relates to either or both of the following in the period to which the report relates:
(a) participants in each host jurisdiction;
(b) funding or provision of supports by the Agency in relation to each host jurisdiction.
(3) The Minister may, by legislative instrument, prescribe particular information described in subsection (2) that must be included in the report.
Prerequisite to making instrument under subsection (3)
(4) The Minister must not make an instrument under subsection (3) unless a majority of the members of the Ministerial Council agree to the making of the instrument.
(4A) The Minister must:
(a) give a notice (the original notice) in writing to each member of the Ministerial Council who is a Minister of a State or Territory seeking the agreement of that member to the making of the instrument and requesting the agreement be given before the end of 28 days beginning on the day the notice is given; and
(b) provide a copy of the proposed instrument to that member.
(4B) If, immediately before the end of that 28‑day period, that member:
(a) has not informed the Minister whether that member agrees to the making of the instrument; and
(b) has not made a request under subsection (4C);
then, at the end of that period, that member is taken to have agreed to the making of the instrument.
(4C) If, before the end of that 28‑day period, that member gives a notice in writing to the Minister requesting a longer period within which that member may agree to the making of the instrument:
(a) that member may give that agreement before the end of 90 days beginning on the day the original notice was given; and
(b) if, immediately before the end of that 90‑day period, that member has not informed the Minister whether that member agrees to the making of the instrument, then, at the end of that period, that member is taken to have so agreed.
First report
(5) If this section commences on a day other than a day (a quarter start day) mentioned in paragraph (1)(a):
(a) the Board members are not required to prepare a report for the period ending immediately before the next quarter start day; and
(b) the first report under this section must be for the period:
(i) starting on the day this section commences; and
(ii) ending immediately before the second quarter start day after the day this section commences.
Subdivision B—Reporting by the Agency
175 Giving information requested by Commonwealth, State or Territory Ministers
(1) The Agency must give the Minister information requested by the Minister about:
(a) expenditure, relating to a particular host jurisdiction, of money received by the Agency from the Commonwealth or that host jurisdiction; or
(b) activities of the Agency relating to a particular host jurisdiction.
(2) The Agency must give a Minister of a host jurisdiction who is a member of the Ministerial Council information requested by that Minister about:
(a) expenditure of money received by the Agency from that jurisdiction; or
(b) expenditure, relating to that jurisdiction, of money received by the Agency from the Commonwealth; or
(c) activities of the Agency relating to that jurisdiction.
Subdivision C—Reporting by the Minister
176 Giving certain information to the Ministerial Council
(1) As soon as practicable after giving a direction to the Agency under section 121 or a statement to the Board under section 125, the Minister must give a copy of the direction or statement to the Ministerial Council.
(2) As soon as practicable after any of the following events happens to a person, the Minister must tell the Ministerial Council that the event has happened to the person:
(a) appointment of the person as:
(i) the Chair or another member of the Board; or
(ii) the Principal Member or another member of the Advisory Council; or
(iii) the first CEO;
(b) appointment of the person to act as:
(i) the Chair or another member of the Board; or
(ii) the Principal Member or another member of the Advisory Council;
(c) grant of leave of absence for the person for a period that exceeds 3 months under section 131 or 151;
(d) resignation of the person as a Board member or a member of the Advisory Council;
(e) termination of the person’s appointment as a Board member or a member of the Advisory Council.
Division 2—Planning
177 Corporate plan
(1) In preparing a corporate plan under section 35 of the Public Governance, Performance and Accountability Act 2013, the Board must have regard to a statement given under section 125 of this Act.
(2) The corporate plan must include details of the following:
(a) the financial sustainability of the National Disability Insurance Scheme (including estimates of the current and future expenditure of the National Disability Insurance Scheme);
(b) the risks and issues relevant to the financial sustainability of the National Disability Insurance Scheme and the management of those risks and issues.
(3) The Board must give a copy of the plan to the Ministerial Council before the start of the period covered by the plan.
(4) If the Board varies the plan, the Board must notify the Ministerial Council of the variation.
(5) Subsection 35(3) of the Public Governance, Performance and Accountability Act 2013 (which deals with the Australian Government’s key priorities and objectives) does not apply to a corporate plan prepared by the Board.
Part 6—Finance
178 Payments to the Agency by the Commonwealth
(1) There is payable to the Agency such money as is appropriated by the Parliament for the purposes of the Agency.
(2) The Finance Minister may give directions about the amounts in which, and the times at which, money payable under subsection (1) is to be paid to the Agency.
(3) If a direction under subsection (2) is given in writing, the direction is not a legislative instrument.
179 Payments to the Agency by the host jurisdictions
The Agency may receive money paid to it by a host jurisdiction for the purpose of funding reasonable and necessary supports for participants in the National Disability Insurance Scheme launch who are in the host jurisdiction.
180 Application of money by the Agency
(1) The money of the Agency consists of:
(a) money paid to the Agency under section 178; and
(b) money received by the Agency under section 179; and
(c) any other money paid to, or received by, the Agency.
(2) Subject to subsection (3), the money of the Agency is to be applied only:
(a) in payment or discharge of any expenses, charges and obligations incurred or undertaken by the Agency in the performance of its functions and the exercise of its powers; and
(b) in payment of remuneration and allowances payable under this Act.
(3) The money of the Agency that was received by the Agency under section 179 is to be applied only for the purpose mentioned in that section.
(4) Subsections (2) and (3) do not prevent investment, under section 59 of the Public Governance, Performance and Accountability Act 2013, of money that is not immediately required for the purposes of the Agency.
Part 6A—Actuarial assessment of financial sustainability
Division 1—Scheme actuary and annual financial sustainability report
180A Nomination of scheme actuary
(1) The Board must, in writing, nominate as scheme actuary an actuary:
(a) who is a Fellow of The Institute of Actuaries of Australia; and
(b) who the Board considers is a fit and proper person, and has appropriate skills, experience or knowledge, to be the scheme actuary; and
(c) who is not the reviewing actuary.
(2) The Board must, in writing, revoke the nomination if the nominee ceases to be a Fellow of The Institute of Actuaries of Australia.
(3) Subsection (2) does not limit subsection 33(3) of the Acts Interpretation Act 1901 (which deals with revocation and variation of instruments).
180B Duties of scheme actuary
Duties relating to annual financial sustainability report
(1) The scheme actuary must do all of the following each time an annual report is being prepared by the Board members under section 46 of the Public Governance, Performance and Accountability Act 2013:
(a) assess:
(i) the financial sustainability of the National Disability Insurance Scheme; and
(ii) risks to that sustainability; and
(iii) on the basis of information held by the Agency, any trends in provision of supports to people with disability;
(b) consider the causes of those risks and trends;
(c) make estimates of future expenditure of the National Disability Insurance Scheme;
(d) prepare a report of that assessment, consideration and estimation;
(e) prepare a summary of that report that includes the estimates described in paragraph (c).
Duty to make quarterly estimates of future expenditure
(2) At least once each quarter, the scheme actuary must make estimates of the future expenditure of the National Disability Insurance Scheme and advise the CEO of the estimates. For this purpose, quarter means a period of 3 months starting on 1 July, 1 October, 1 January or 1 April.
Note: The CEO must give the Board a copy of the advice under subsection 159(7).
Duty to provide information and advice on request
(3) The scheme actuary must, on request from the Board or the CEO, provide actuarial information or advice.
Duty to report concerns to Board
(4) If the scheme actuary has significant concerns about the financial sustainability of the National Disability Insurance Scheme, or the risk management processes of the Agency, he or she must report those concerns to the Board as soon as reasonably practicable.
180C Rules for performance of scheme actuary’s duties
The Minister administering the Insurance Act 1973 may, by legislative instrument, determine rules that the scheme actuary must comply with in performing his or her duties under section 180B.
Division 2—Reviewing actuary
180D Nomination of reviewing actuary
(1) The Board must, in writing, nominate as reviewing actuary an actuary:
(a) who is a Fellow of The Institute of Actuaries of Australia; and
(b) who the Board considers is a fit and proper person, and has appropriate skills, experience or knowledge, to be the reviewing actuary; and
(c) who is not the scheme actuary; and
(d) who is not a member of the staff of the Agency under section 169.
(2) The nomination has effect for 3 years or a shorter period specified in the nomination.
(3) The Board must, in writing, revoke the nomination if the nominee:
(a) ceases to be a Fellow of The Institute of Actuaries of Australia; or
(b) becomes a member of the staff of the Agency under section 169.
(4) Subsections (2) and (3) do not limit subsection 33(3) of the Acts Interpretation Act 1901 (which deals with revocation and variation of instruments).
Reviewing actuary for first 3 years
(5) The Board must nominate the Australian Government Actuary under subsection (1) as the first reviewing actuary, as soon as reasonably practicable after the commencement of this section. The nomination has effect for 3 years, despite subsection (2) of this section and subsection 33(3) of the Acts Interpretation Act 1901, but subject to subsection (3) of this section.
Nominations and revocations are not legislative instruments
(6) Neither a nomination made under subsection (1) nor a revocation made under subsection (3) is a legislative instrument.
180E Duties of reviewing actuary
(1) The reviewing actuary must, on request by the Board, review and report to the Board on actuarial reports and advice received by the Board.
(2) The reviewing actuary must review and report to the Board on each annual financial sustainability report and summary prepared under section 180B.
(3) The reviewing actuary must include in each of his or her reports under subsection (2) a statement whether he or she is satisfied that the Agency made all arrangements necessary for him or her to conduct the review to which the report relates.
(4) If the reviewing actuary has significant concerns about the financial sustainability of the National Disability Insurance Scheme, or the risk management processes of the Agency, he or she must report those concerns to the Board as soon as reasonably practicable.
Division 3—Assistance of scheme actuary and reviewing actuary
180F Agency to assist scheme actuary and reviewing actuary
The Agency must make arrangements to enable:
(a) the scheme actuary to perform his or her duties under section 180B; and
(b) the reviewing actuary to perform his or her duties under section 180E.
Part 7—Miscellaneous
181 Taxation
The Agency is not subject to taxation under any law of the Commonwealth or of a State or Territory.
Note: However, the Agency may be subject to taxation under certain laws (see, for example, section 177‑5 of the A New Tax System (Goods and Services Tax) Act 1999 and section 66 of the Fringe Benefits Tax Assessment Act 1986).
Chapter 6A—NDIS Quality and Safeguards Commission
Part 1—Commission establishment and functions
181A Establishment of the Commission
(1) The NDIS Quality and Safeguards Commission is established by this section.
Note: The Commission does not have a legal identity separate from the Commonwealth.
(2) The Commission consists of:
(a) the Commissioner; and
(b) the staff of the Commission.
(3) For the purposes of the finance law (within the meaning of the Public Governance, Performance and Accountability Act 2013):
(a) the Commission is a listed entity; and
(b) the Commissioner is the accountable authority of the Commission; and
(c) the following persons are officials of the Commission:
(i) the Commissioner;
(ii) the staff referred to in section 181U;
(iii) persons assisting the Commissioner referred to in section 181W;
(iv) consultants engaged under section 181V; and
(d) the purposes of the Commission include:
(i) the functions of the Commission referred to in section 181B; and
(ii) the functions of the Commissioner referred to in section 181D.
181B Commission’s functions
The Commission’s function is to assist the Commissioner in the performance of the Commissioner’s functions.
Part 2—NDIS Quality and Safeguards Commissioner
181C Commissioner
There is to be a Commissioner of the NDIS Quality and Safeguards Commission.
181D Commissioner’s functions and powers
(1) The Commissioner has the following functions:
(a) the core functions;
(b) the registration and reportable incident functions;
(c) the complaints functions;
(d) the behaviour support function;
(e) such other functions that are conferred on the Commissioner by or under this Act or any other law of the Commonwealth;
(f) to do anything incidental or conducive to the performance of any of the above functions.
(2) The Commissioner may, by notifiable instrument, make guidelines relating to the performance of any of the functions mentioned in subsection (1).
(3) In performing his or her functions, the Commissioner may:
(a) consult and cooperate with other persons, organisations and governments on matters relating to those functions; and
(b) consult and cooperate with other persons, organisations and governments on matters relating to the determination of the rights and interests of people receiving, or eligible to receive, supports or services under the National Disability Insurance Scheme; and
(c) consult persons and groups with an interest in the supports or services provided under the National Disability Insurance Scheme; and
(d) have regard to the interests and needs of persons receiving, or eligible to receive, supports or services under the National Disability Insurance Scheme.
(3A) In performing his or her functions, the Commissioner must acknowledge, recognise and respect the role of advocates (including independent advocates) in representing the interests of people with disability.
(3B) In performing his or her functions, the Commissioner must have due regard to procedural fairness.
(4) In performing his or her functions, the Commissioner must use his or her best endeavours to:
(a) provide opportunities for people with disability to participate in matters that relate to them and to take into consideration the wishes and views of people with disability in relation to those matters; and
(b) conduct compliance and enforcement activities in a risk responsive and proportionate manner; and
(c) support and maintain a diverse and sustainable NDIS market.
(5) The Commissioner has power to do all things necessary or convenient to be done for or in connection with the performance of his or her functions.
181E Commissioner’s core functions
The Commissioner’s core functions are as follows:
(a) to uphold the rights of, and promote the health, safety and wellbeing of, people with disability receiving supports or services, including those received under the National Disability Insurance Scheme;
(b) to develop a nationally consistent approach to managing quality and safeguards for people with disability receiving supports or services, including those received under the National Disability Insurance Scheme;
(c) to promote the provision of advice, information, education and training to NDIS providers and people with disability;
(d) to secure compliance with this Act through effective compliance and enforcement arrangements, including through the monitoring and investigation functions conferred on the Commissioner by Division 8 of Part 3A of Chapter 4;
(e) to promote continuous improvement amongst NDIS providers and the delivery of progressively higher standards of supports and services to people with disability;
(f) to develop and oversee the broad policy design for a nationally consistent framework relating to the screening of workers involved in the provision of supports and services to people with disability;
(g) to provide advice or recommendations to the Agency or the Board in relation to the performance of the Agency’s functions;
(h) to engage in, promote and coordinate the sharing of information to achieve the objects of this Act;
(i) to provide NDIS market oversight, including:
(i) by monitoring changes in the NDIS market which may indicate emerging risk; and
(ii) by monitoring and mitigating the risks of unplanned service withdrawal.
181F Commissioner’s registration and reportable incident functions
The Commissioner’s registration and reportable incident functions are as follows:
(a) the functions conferred on the Commissioner by Division 2 of Part 3A of Chapter 4 (about registered NDIS providers);
(b) the functions conferred on the Commissioner by section 73U (about approved quality auditors);
(c) to monitor registered NDIS provider compliance with their conditions of registration, including in relation to the screening of workers in accordance with the NDIS Practice Standards;
(d) to provide education, guidance and best practice information to NDIS providers in relation to compliance matters;
(e) the functions relating to the notification and management of reportable incidents conferred on the Commissioner by the National Disability Insurance Scheme rules made for the purposes of section 73Z;
(f) to support registered NDIS providers to develop and implement effective incident management systems and to build provider capability to prevent and manage incidents;
(g) to collect, correlate, analyse and disseminate information relating to incidents, including reportable incidents, to identify trends or systemic issues.
181G Commissioner’s complaints functions
The Commissioner’s complaints functions are as follows:
(a) the functions relating to the investigation, management, conciliation and resolution of complaints conferred on the Commissioner by the National Disability Insurance Scheme rules made for the purposes of section 73X;
(b) to educate people about, and develop resources relating to, best practice in the handling of:
(i) complaints arising out of, or in connection with, the provision of supports or services by NDIS providers; and
(ii) matters arising from such complaints;
(c) to build the capability of people with disability to pursue complaints in relation to the provision of supports or services by NDIS providers;
(d) to build NDIS provider capability to develop a culture of learning and innovation to deliver high quality supports and services, prevent incidents and respond to complaints;
(e) to collect, correlate, analyse and disseminate information relating to complaints arising out of, or in connection with, the provision of supports or services by NDIS providers.
181H Commissioner’s behaviour support function
The Commissioner’s behaviour support function is to provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices, by NDIS providers, including by:
(a) building capability in the development of behaviour support through:
(i) developing and implementing a competency framework for registered NDIS providers whose registration includes the provision of behaviour support assessments and developing behaviour support plans; and
(ii) assessing the skills and experience of such providers against the competency framework; and
(b) developing policy and guidance materials in relation to behaviour supports and the reduction and elimination of the use of restrictive practices by NDIS providers; and
(c) providing education, training and advice on the use of behaviour supports and the reduction and elimination of the use of restrictive practices; and
(d) overseeing the use of behaviour support and restrictive practices, including by:
(i) monitoring registered NDIS provider compliance with the conditions of registration relating to behaviour support plans; and
(ii) collecting, analysing and disseminating data and other information relating to the use of behaviour supports and restrictive practices by NDIS providers; and
(e) undertaking and publishing research to inform the development and evaluation of the use of behaviour supports and to develop strategies to encourage the reduction and elimination of restrictive practices by NDIS providers; and
(f) assisting the States and Territories to develop a regulatory framework, including nationally consistent minimum standards, in relation to restrictive practices:
(i) in line with the National Framework for Reducing and Eliminating the Use of Restrictive Practices in the Disability Service Sector; and
(ii) consistent with the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006.
Note: The Convention on the Rights of Persons with Disabilities is in Australian Treaty Series 2008 No. 12 ([2008] ATS 12) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).
181J Charging of fees by Commissioner
(1) The Commissioner may charge fees in accordance with an instrument made under subsection (2).
(2) The Minister may, by legislative instrument, determine:
(a) the things that the Commissioner does in the performance of his or her functions for which he or she may charge fees; and
(b) the amount, or a method of working out the amount, of those fees.
(3) A fee must not be such as to amount to taxation.
181K Minister may give directions to the Commissioner
(1) 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.
Note: Section 42 (disallowance) and Part 4 of Chapter 3 (sunsetting) of the Legislation Act 2003 do not apply to the directions (see regulations made for the purposes of paragraphs 44(2)(b) and 54(2)(b) of that Act).
(2) A direction given under subsection (1):
(a) must not relate to a particular individual or provider; and
(b) must not be inconsistent with this Act, the regulations or an instrument made under this Act.
(3) The Commissioner must comply with a direction given under subsection (1).
(4) Subsection (3) does not apply to the extent that the direction relates to the Commissioner’s performance of functions or exercise of powers under the following Acts in relation to the Commission:
(a) the Public Service Act 1999;
(b) the Public Governance, Performance and Accountability Act 2013.
181L Appointment of the Commissioner
(1) The Commissioner is to be appointed by the Minister, by written instrument, on a full‑time basis.
(2) The Commissioner holds office for the period specified in the instrument of appointment. The period must not exceed 3 years.
Note: The Commissioner may be reappointed (see section 33AA of the Acts Interpretation Act 1901).
181M Acting appointments
The Minister may, by written instrument, appoint a person to act as the Commissioner:
(a) during a vacancy in the office of Commissioner (whether or not an appointment has previously been made to the office); or
(b) during any period, or during all periods, when the Commissioner:
(i) is absent from duty or from Australia; or
(ii) is, for any reason, unable to perform the duties of the office.
Note: For rules that apply to acting appointments, see sections 33AB and 33A of the Acts Interpretation Act 1901.
181N Remuneration and allowances
(1) The Commissioner is to be paid the remuneration that is determined by the Remuneration Tribunal. If no determination of that remuneration by the Tribunal is in operation, the Commissioner is to be paid the remuneration that is determined under paragraph (4)(a).
(2) The Commissioner is to be paid the allowances that are determined under paragraph (4)(b).
(3) This section has effect subject to the Remuneration Tribunal Act 1973.
(4) The Minister may, by legislative instrument, determine:
(a) remuneration for the purposes of subsection (1); and
(b) allowances for the purposes of subsection (2).
181P Leave of absence
(1) The Commissioner has the recreation leave entitlements that are determined by the Remuneration Tribunal.
(2) The Minister may grant to the Commissioner leave of absence, other than recreation leave, on the terms and conditions as to remuneration or otherwise that the Minister determines in writing.
181Q Outside employment
The Commissioner must not engage in paid work outside the duties of his or her office without the Minister’s approval.
181R Other terms and conditions
The Commissioner holds office on the terms and conditions (if any) in relation to matters not covered by this Act that are determined, in writing, by the Minister.
181S Resignation
(1) The Commissioner may resign his or her appointment by giving the Minister a written resignation.
(2) The resignation takes effect on the day it is received by the Minister or, if a later day is specified in the resignation, on that later day.
181T Termination of appointment
(1) The Minister may terminate the appointment of the Commissioner:
(a) for misbehaviour; or
(b) if the Commissioner is unable to perform the duties of his or her office because of physical or mental incapacity.
(2) The Minister may terminate the appointment of the Commissioner if:
(a) the Commissioner:
(i) becomes bankrupt; or
(ii) applies to take the benefit of any law for the relief of bankrupt or insolvent debtors; or
(iii) compounds with his or her creditors; or
(iv) makes an assignment of his or her remuneration for the benefit of his or her creditors; or
(b) the Commissioner is absent, except on leave of absence, for 14 consecutive days or for 28 days in any 12 months; or
(c) the Commissioner engages, without the Minister’s approval, in paid work outside the duties of his or her office (see section 181Q).
Note: The appointment of the Commissioner may also be terminated under section 30 of the Public Governance, Performance and Accountability Act 2013 (which deals with terminating the appointment of an accountable authority, or a member of an accountable authority, for contravening general duties of officials).
Part 3—Staff etc. of the Commission
181U Staff of the Commission
(1) The staff of the Commission must be persons engaged under the Public Service Act 1999.
(2) For the purposes of that Act:
(a) the Commissioner and the staff of the Commission together constitute a Statutory Agency; and
(b) the Commissioner is the Head of that Statutory Agency.
181V Consultants
(1) The Commissioner may, on behalf of the Commonwealth, engage consultants to assist in the performance of the Commissioner’s functions.
(2) The consultants are to be engaged on the terms and conditions that the Commissioner determines in writing.
181W Persons assisting the Commissioner
The Commissioner may be assisted:
(a) by employees of Agencies (within the meaning of the Public Service Act 1999); or
(b) by officers or employees of a State or Territory; or
(c) by officers or employees of authorities of the Commonwealth, a State or a Territory;
whose services are made available to the Commissioner in connection with the performance of the Commissioner’s functions.
Chapter 6B—NDIS worker screening database
181X Simplified outline of this Chapter
• The Commissioner must establish, operate and maintain the NDIS worker screening database.
• The database will keep a record of decisions made in relation to persons who have made an application for an assessment of whether they, in working, or seeking to work, with people with disability pose a risk to such people.
• One of the purposes of the database is to share information in the database with persons or bodies (including employers and potential employers) for the purposes of the National Disability Insurance Scheme.
181Y NDIS worker screening database
(1) The Commissioner must establish, operate and maintain a database for the purposes of this Act, to be known as the NDIS worker screening database.
Note: As subsection (1) confers a function on the Commissioner, section 55A allows the Commissioner to gather information for inclusion in the database.
(2) The NDIS worker screening database must be kept in electronic form.
Purposes of the database
(3) The purposes of the NDIS worker screening database are the following:
(a) to maintain, for the purposes of the National Disability Insurance Scheme, an up‑to‑date record of persons who, under decisions made under NDIS worker screening laws, have been found, in working, or seeking to work, with people with disability not to pose a risk, or to pose a risk, to such people;
(b) in relation to persons covered by paragraph (a)—to maintain an up‑to‑date record of other decisions that relate to the decisions covered by that paragraph;
(c) to share information in the database with persons or bodies (including employers and potential employers) for the purposes of the National Disability Insurance Scheme;
(d) any other purpose determined in an instrument under subsection (8).
(4) Paragraphs (3)(a) to (c) do not limit paragraph (3)(d).
Information in the database
(5) The NDIS worker screening database may include the following information for the purposes of subsection (3):
(a) information relating to persons (each of whom is a screening applicant) who have made applications (each of which is a screening application) for an NDIS worker screening check and information relating to those applications;
(b) information relating to each screening applicant in respect of whom a screening application is no longer being considered and the reasons for this;
(c) information relating to each screening applicant in respect of whom a decision (a clearance decision) (however described) is in force, under an NDIS worker screening law, to the effect that the person, in working, or seeking to work, with people with disability does not pose a risk to such people and information relating to the decision;
(d) information relating to any decisions made under an NDIS worker screening law, in relation to each screening applicant, while the screening applicant’s application is pending;
(e) information relating to each screening applicant in respect of whom a decision (an exclusion decision) (however described) is in force, under an NDIS worker screening law, to the effect that the person, in working, or seeking to work, with people with disability does pose a risk to such people and information relating to the decision;
(f) if a clearance decision or an exclusion decision specifies the period for which the decision is in force—information setting out that period;
(g) information relating to each person in respect of whom a decision (however described), under an NDIS worker screening law, suspending a clearance decision has been made and information relating to the suspension;
(h) information relating to each person in respect of whom a decision (however described), under an NDIS worker screening law, revoking a clearance decision or an exclusion decision has been made and information relating to the revocation;
(i) information relating to employers or potential employers of persons who have made screening applications;
(j) any other information determined in an instrument under subsection (8).
(6) Paragraphs (5)(a) to (i) do not limit paragraph (5)(j).
Database may include personal information
(7) The information included under paragraphs (5)(a) to (j) may include personal information (within the meaning of the Privacy Act 1988).
Legislative instrument
(8) The Minister may, by legislative instrument, do either or both of the following:
(a) determine a purpose for the purposes of paragraph (3)(d);
(b) determine information for the purposes of paragraph (5)(j).
Database not a legislative instrument
(9) The NDIS worker screening database is not a legislative instrument.
Chapter 7—Other matters
Part 1—Debt recovery
Division 1—Debts
182 Debts due to the Agency
(1) If:
(a) a payment is made to a person that is, or purports to be, a payment of an NDIS amount to or in respect of a participant; and
(b) the person is not entitled for any reason to the payment of the NDIS amount;
the amount of the payment is a debt due to the Agency by the person and the debt is taken to arise when the person receives the payment.
(2) Without limiting paragraph (1)(b), a person is taken not to have been entitled to the payment of an NDIS amount if the payment should not have been made for one or more of the following reasons:
(a) the payment was made as a result of a computer error or an administrative error;
(b) the payment was made as a result of:
(i) a contravention of this Act, the regulations or the National Disability Insurance Scheme rules; or
(ii) a false or misleading statement or a misrepresentation;
(c) the participant died before the payment was made.
(3) If a person does not comply with subsection 46(1) in relation to an NDIS amount, an equal amount is a debt due to the Agency by the person.
(4) The National Disability Insurance Scheme rules may provide that, if records are not retained for the period prescribed as mentioned in subsection 46(2) in relation to an NDIS amount, an equal or lesser amount is a debt due to the Agency by the person.
Division 2—Methods of recovery
183 Legal proceedings
(1) A debt under this Act is recoverable by the Agency by means of legal proceedings brought by the CEO on behalf of the Agency in a court of competent jurisdiction.
(2) Subject to subsections (3), (4) and (5), legal proceedings for the recovery of the debt are not to be commenced after the end of the period (the recovery period) of 6 years starting on the first day an Agency officer becomes aware, or could reasonably be expected to have become aware, of the circumstances that gave rise to the debt.
(3) If, within the recovery period, part of the debt is paid, legal proceedings for the recovery of the balance of the debt may be commenced within the period of 6 years starting on the day of payment.
(4) If, within the recovery period, the person who owes the debt acknowledges that he or she owes it, legal proceedings for the recovery of the debt may be commenced within the period of 6 years starting on the day of acknowledgement.
(5) If, within the recovery period, any of the following activities occurs:
(a) a review of a file relating to action for the recovery of the debt;
(b) other internal Agency activity relating to action for the recovery of the debt;
action under this section for the recovery of the debt may be commenced within the period of 6 years after the end of the activity.
184 Arrangement for payment of debt
(1) The CEO may enter into an arrangement with a person under which the person is to pay a debt, owed by the person to the Agency under this Act, or the outstanding amount of such a debt, in a way set out in the arrangement.
(2) An arrangement entered into under subsection (1) has effect, or is taken to have had effect, on and after the day specified in the arrangement as the day the arrangement commences (whether that day is the day the arrangement is entered into or an earlier or later day).
(3) If an arrangement entered into under subsection (1) does not specify a day as mentioned in subsection (2), it has effect on and after the day on which it is entered into.
(4) The CEO may terminate or alter an arrangement entered into under subsection (1):
(a) at the debtor’s request; or
(b) after giving 28 days’ notice to the debtor of the proposed termination or alteration; or
(c) without notice, if the CEO is satisfied that the person has failed to disclose material information about his or her true capacity to repay the debt.
185 Recovery of amounts from financial institutions
(1) If:
(a) an NDIS amount or NDIS amounts are paid to a financial institution for the credit of an account kept with the institution; and
(b) the CEO is satisfied that the payment or payments were intended to be made to someone who was not the person or one of the persons in whose name or names the account was kept;
the CEO may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Agency, within a reasonable period stated in the notice, the lesser of the following amounts:
(c) an amount specified in the notice, being an amount equal to the NDIS amount or the sum of the NDIS amounts;
(d) the amount standing to the credit of the account when the notice is received by the institution.
(2) If:
(a) an NDIS amount or NDIS amounts that are intended to be made to or in respect of a person (the first person) are made to a financial institution for the credit of an account that was kept with the institution by the first person or by the first person and one or more other persons; and
(b) the first person died before the payment or payments were made;
the CEO may give a written notice to the institution setting out the matters mentioned in paragraphs (a) and (b) and requiring the institution to pay to the Agency, within a reasonable period stated in the notice, the lesser of the following amounts:
(c) an amount specified in the notice that is equal to the NDIS amount or the sum of the NDIS amounts;
(d) the amount standing to the credit of the account when the notice is received by the institution.
(3) As soon as possible after issuing a notice under subsection (2), the CEO must inform the deceased estate in writing of:
(a) the amount sought to be recovered from the deceased person’s account; and
(b) the reasons for the recovery action.
(4) A financial institution must comply with a notice given to it under subsection (1) or (2).
Penalty: 300 penalty units.
(5) It is a defence to a prosecution of a financial institution for failing to comply with a notice given to it under subsection (1) or (2) if the financial institution proves that it was incapable of complying with the notice.
(6) If a notice is given to a financial institution under subsection (1) (payment made to wrong account) or under subsection (2) (death of person in whose name the account was kept) in respect of an NDIS amount or NDIS amounts, any amount recovered by the Agency from the institution in respect of the debt reduces any debt owed to the Agency by any other person in respect of the NDIS amount or NDIS amounts.
Division 3—Information relating to debts
186 Power to obtain information from a person who owes a debt to the Agency
The CEO may require a person who owes a debt to the Agency under this Act to do one or more of the following:
(a) give to the Agency information that is relevant to the person’s financial situation;
(b) produce to the Agency a document that the CEO has reasonable grounds to believe is in the person’s custody, or under the person’s control, and is relevant to the person’s financial situation;
(c) if the person’s address changes—inform the Agency of the new address within 14 days after the change.
187 Power to obtain information about a person who owes a debt to the Agency
If the CEO has reasonable grounds to believe that a person has information, or has custody or control of a document:
(a) that would help the Agency locate another person (the debtor) who owes a debt to the Agency under this Act; or
(b) that is relevant to the debtor’s financial situation;
the CEO may require the person to give the information, or produce the document, to the Agency.
188 Written notice of requirement
(1) A requirement under this Division must be made by written notice given to the person of whom the requirement is made.
(2) The notice must specify:
(a) the nature of the information or document that is required to be given or produced; and
(b) how the person is to give the information or produce the document; and
(c) the period within which the person is to give the information or produce the document to the Agency; and
(d) the Agency officer to whom the information is to be given or the document is to be produced; and
(e) that the notice is given under this section.
(3) The period specified under paragraph (2)(c) must be a period of at least 14 days beginning on the day on which the notice is given.
(4) The notice may require the person to give the information by appearing before a specified Agency officer to answer questions.
(5) If the notice requires the person to appear before an Agency officer, the notice must specify a time and place at which the person is to appear. The time must be at least 14 days after the notice is given.
189 Offence—refusal or failure to comply with requirement
(1) A person must not refuse or fail to comply with a requirement under this Division to give information or produce a document.
Penalty: 30 penalty units.
Note: If a body corporate is convicted of an offence against this subsection, subsection 4B(3) of the Crimes Act 1914 allows a court to impose a fine of up to 5 times the penalty stated above.
(2) Subsection (1) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in this subsection: see subsection 13.3(3) of the Criminal Code.
(3) It is a reasonable excuse for an individual to refuse or fail to give information or produce a document on the ground that to do so might tend to incriminate the individual or expose the individual to a penalty.
Division 4—Non‑recovery of debts
190 CEO may write off debt
(1) Subject to subsection (2), the CEO may, on behalf of the Agency, decide to write off a debt, for a stated period or otherwise.
(2) The CEO may decide to write off a debt under subsection (1) if, and only if:
(a) the debt is irrecoverable at law; or
(b) the debtor has no capacity to repay the debt; or
(c) the debtor’s whereabouts are unknown after all reasonable efforts have been made to locate the debtor; or
(d) it is not cost effective for the Agency to take action to recover the debt.
(3) For the purposes of paragraph (2)(a), a debt is irrecoverable at law if, and only if:
(a) the debt cannot be recovered by means of deductions, or legal proceedings, because the relevant 6 year period mentioned in section 183 has elapsed; or
(b) there is no proof of the debt capable of sustaining legal proceedings for its recovery; or
(c) the debtor is discharged from bankruptcy and the debt was incurred before the debtor became bankrupt and was not incurred by fraud; or
(d) the debtor has died leaving no estate or insufficient funds in the debtor’s estate to repay the debt.
(4) A decision made under subsection (1) takes effect:
(a) if no day is specified in the decision—on the day the decision is made; or
(b) if a day is specified in the decision—on the day so specified (whether that day is before, on or after the day the decision is made).
(5) Nothing in this section prevents anything being done at any time to recover a debt that has been written off under this section.
191 Power to waive Agency’s right to recover debt
(1) On behalf of the Agency, the CEO may waive the Agency’s right to recover the whole or a part of a debt from a debtor only in the circumstances described in section 192, 193, 194 or 195.
(2) A waiver takes effect:
(a) on the day specified in the waiver (whether that day is before, on or after the day the decision to waive is made); or
(b) if the waiver does not specify when it takes effect—on the day the decision to waive is made.
Note: If the CEO waives the Agency’s right to recover all or part of a debt, this is a permanent bar to recovery of the debt or part of the debt and the debt or part of the debt effectively ceases to exist.
192 Waiver of debt arising from error
The CEO must waive the right to recover the proportion of a debt that is attributable solely to an administrative error made by the Agency if the debtor received in good faith the payment or payments that gave rise to that proportion of the debt and:
(a) the debt is not raised within 6 weeks from the first payment that caused the debt; or
(b) if the debt arose because a person has complied with a notification obligation—the debt is not raised within 6 weeks from the end of the notification period;
whichever is the later.
Note: This section does not allow waiver of a part of a debt that was caused partly by administrative error and partly by one or more other factors (such as error by the debtor).
193 Waiver of small debt
The CEO may waive the right to recover a debt if:
(a) the debt is, or is likely to be, less than $200; and
(b) it is not cost effective for the Agency to take action to recover the debt.
194 Waiver in relation to settlements
(1) If the Agency has agreed to settle a civil action against a debtor for recovery of a debt for less than the full amount of the debt, the CEO must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.
(2) If the CEO has agreed to settle proceedings before the Administrative Appeals Tribunal relating to recovery of a debt on the basis that the debtor will pay less than the full amount of the debt, the CEO must waive the right to recover the difference between the debt and the amount that is the subject of the settlement.
(3) If:
(a) the Agency has recovered at least 80% of the original value of a debt from a debtor; and
(b) the Agency and the debtor agree that the recovery is in full satisfaction for the whole of the debt; and
(c) the debtor cannot repay a greater proportion of the debt;
the CEO must waive the remaining 20% or less of the value of the original debt.
(4) If the CEO and a debtor agree that the debtor’s debt will be fully satisfied if the debtor pays the Agency an agreed amount that is less than the amount of the debt outstanding at the time of the agreement (the unpaid amount), the CEO must waive the right to recover the difference between the unpaid amount and the agreed amount.
(5) The CEO must not make an agreement described in subsection (4) unless the CEO is satisfied that the agreed amount is at least the present value of the unpaid amount if it is repaid in instalments of amounts, and at times, determined by the CEO.
(6) For the purposes of subsection (5), the present value of the unpaid amount is the amount worked out in accordance with the method prescribed by the National Disability Insurance Scheme rules.
195 Waiver in special circumstances
The CEO may waive the right to recover a debt if:
(a) the debt did not arise in whole or part as a result of:
(i) a contravention of this Act, the regulations or the National Disability Insurance Scheme rules; or
(ii) a false or misleading statement or a misrepresentation; and
(b) there are special circumstances (other than financial hardship or the disability of the debtor) that the CEO is satisfied make waiver appropriate; and
(c) the CEO is satisfied that waiver is more appropriate than writing off the debt.
Part 2—General matters
196 Method of notification by CEO
If this Act, the regulations or the National Disability Insurance Scheme rules require or permit the CEO to notify a person, the CEO may notify the person:
(a) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the CEO; or
(b) by giving the notice to the person personally; or
(c) in any other way the CEO considers appropriate.
197 CEO not required to make a decision
(1) If this Act, the regulations or the National Disability Insurance Scheme rules require a request or application to be in a form approved by the CEO, the CEO is not required to make a decision on the request or application if it is not in that form.
(2) If this Act, the regulations or the National Disability Insurance Scheme rules permit the CEO to require information or documents for the purposes of, or for purposes relating to, making a decision or doing a thing, the CEO is not required to make the decision or do the thing until the information or documents are provided.
197A Method of notification by Commissioner
If this Act, the regulations or the National Disability Insurance Scheme rules require or permit the Commissioner to notify a person, the Commissioner may notify the person:
(a) by sending the notice by prepaid post addressed to the person at his or her postal address last known to the Commissioner; or
(b) by giving the notice to the person personally; or
(c) in any other way the Commissioner considers appropriate.
197B Commissioner not required to make a decision
(1) If this Act, the regulations or the National Disability Insurance Scheme rules require a request or application to be in a form approved by the Commissioner, the Commissioner is not required to make a decision on the request or application if it is not in that form.
(2) If this Act, the regulations or the National Disability Insurance Scheme rules permit the Commissioner to require information or documents for the purposes of, or for purposes relating to, making a decision or doing a thing, the Commissioner is not required to make the decision or do the thing until the information or documents are provided.
198 Protection of participant against liability for actions of persons
Nothing in this Part renders a participant guilty of an offence against this Act in relation to any act or omission of a person who does a thing because of section 74.
199 Protection against criminal liability
A person who does a thing because of section 74 is not subject to any criminal liability under this Act in relation to:
(a) any act or omission of the participant concerned; or
(b) anything done, or omitted to be done, in good faith, because of section 74.
200 Evidentiary effect of CEO’s certificate
(1) For the purposes of paragraph 21B(1)(c) of the Crimes Act 1914, as it applies in relation to an offence against Part 7.3 or 7.4 of the Criminal Code relating to the Agency or this Act, a certificate signed by the CEO is prima facie evidence of the matters specified in the certificate.
(2) The certificate may specify:
(a) the person to whom, or in relation to whom, an NDIS amount has been paid because of an act or omission for which the person or another person has been convicted of an offence against Part 7.3 or 7.4 of the Criminal Code relating to the Agency or this Act; and
(b) the amount paid; and
(c) the act or omission.
Note: Parts 7.3 and 7.4 of the Criminal Code deal with certain fraudulent conduct and false or misleading statements.
200A