National Disability Insurance Agency (Commonwealth) 

Act: National Disability Insurance Scheme Act 2013 (Cth), Chapter 6.¹

Established: Section 117(1) does not create the Agency. It provides that the body established by that section as previously in force, under the name National Disability Insurance Scheme Launch Transition Agency, is now to be known as the National Disability Insurance Agency. The note records that s 25B(1) of the Acts Interpretation Act 1901 (Cth) preserves the body's identity through the name change. The Agency is therefore continuous with the launch body, not a successor to it.

Purpose: To deliver the National Disability Insurance Scheme and to manage its financial sustainability (s 118(1)(a) and (b)).

Where the authority sits

Section 117(2) makes the Agency a body corporate with a seal, able to acquire, hold and dispose of real and personal property, and able to sue and be sued. It has legal personality of its own.

That distinguishes it sharply from the NDIS Quality and Safeguards Commission, whose functions attach to the Commissioner as an office-holder. Say "the Agency" for scheme delivery, and "the Commissioner" for provider regulation; the two are different legal creatures under the same Act.

Section 122 then removes the obvious corollary: the Agency does not have privileges and immunities of the Crown in right of the Commonwealth. An argument that the Agency shares the Commonwealth's immunities has an express answer against it.

Governance runs through three bodies. The Board, continued by s 123, has the functions in s 124(1): to ensure the proper, efficient and effective performance of the Agency's functions, and to determine objectives, strategies and policies to be followed by the Agency. The Independent Advisory Council is established by s 143. The CEO, established by s 158, is responsible under s 159(1) for the day-to-day administration.

The chain in s 159 is worth tracing. The CEO must act in accordance with the objectives, strategies and policies the Board determines under s 124(1)(b) (s 159(3)); the Board may give the CEO written directions about the performance of the CEO's duties (s 159(4)); the CEO must comply (s 159(5)); and such a direction is not a legislative instrument (s 159(6)). Section 159(7) adds a transparency obligation: the CEO must give the Board a copy of any significant actuarial report or advice received, as soon as reasonably practicable.

Powers conferred under the Act

Section 118(1) confers the functions. Beyond delivering the scheme and managing its financial sustainability, they include advising on the pricing of supports (para (baa)); preventing, detecting, investigating, responding to and assisting in the prosecution of criminal activity involving misuse or abuse of the scheme (para (ba)); securing compliance with, and enforcing, the provisions to which Part 3C of Chapter 4 applies (para (bb)); developing the disability sector; building community awareness; collecting and analysing data; and undertaking research.

Section 118(1)(a) sets out how delivery must be pursued, and it is the provision to quote when arguing about the Agency's purpose. It requires delivery so as to support independence and social and economic participation; enable people with disability to exercise choice and control; ensure their decisions and preferences are respected and given appropriate priority; promote high quality and innovative supports; and ensure that a reasonable balance is achieved between safety and the right of people with disability to choose to participate in activities involving risk.

Section 118(2) then imposes best-endeavours obligations: to act in accordance with relevant intergovernmental agreements, to act properly, efficiently and effectively, and to ensure the financial sustainability of the scheme.

Section 119 gives the Agency power to do all things necessary or convenient for its functions, expressly including entering into contracts and accepting gifts, devises, bequests and assignments.

Ministerial direction, and its limits

Section 121(1) permits the Minister, by legislative instrument, to give directions to the Agency about the performance of its functions. Two limits in s 121(2) matter.

A direction must not relate to a particular individual. So a direction cannot be used to resolve, reverse or influence a decision about one participant, and a submission that the Minister should direct the Agency about a specific plan is misconceived.

A direction must not be inconsistent with the Act, the regulations, an instrument under the Act, or the Public Governance, Performance and Accountability Act 2013 (Cth) or its instruments.

The note to s 121(1) records that disallowance under s 42 of the Legislation Act 2003 (Cth), and the sunsetting provisions in Part 4 of Chapter 3 of that Act, do not apply to these directions, by force of regulations made for the purposes of ss 44(2)(b) and 54(2)(b). A direction is a legislative instrument that is neither disallowable nor subject to sunsetting — an unusual combination, and a point worth making in any argument about parliamentary supervision of the scheme.

Separately, s 125 allows the Minister to give the Board a statement setting out strategic guidance for the Agency. That is guidance to the governing body, not a direction to the Agency, and the two should not be conflated.

Is it a prosecuting authority?

Not on the face of the Act. Section 118(1)(ba) confers a function of assisting in the prosecution of criminal activity involving the scheme — which is expressed as assistance, not as conducting prosecutions. The enforcement function in s 118(1)(bb) is directed to securing compliance with, and enforcing, the provisions to which Part 3C of Chapter 4 applies, by exercising the powers conferred by that Part; the content of that Part was not examined here. Provider-facing enforcement under the Act sits primarily with the NDIS Quality and Safeguards Commissioner rather than with the Agency.

Self-check

• Have I said the Act continues the Agency under a new name, rather than that it establishes it?
• Have I kept the Agency and the Commissioner apart when allocating a function?
• Have I applied s 122 before assuming any Crown immunity?
• Have I checked s 121(2)(a) before suggesting a ministerial direction could address an individual's case?