NDIS Quality and Safeguards Commission (Cth) 

Act: National Disability Insurance Scheme Act 2013 (Cth).¹

Established: Section 181A(1) states that "the NDIS Quality and Safeguards Commission is established by this section". The note to the section adds that the Commission "does not have a legal identity separate from the Commonwealth" — so it is not a body corporate, cannot sue or be sued in its own name, and proceedings involving it are proceedings against the Commonwealth.

Purpose: To regulate the quality and safety of supports and services provided to people with disability, principally under the National Disability Insurance Scheme, through registration, complaints, reportable incidents and behaviour support.

Where the authority sits

Section 181A(2) constitutes the Commission as the Commissioner and the staff of the Commission. For the purposes of the finance law the Commission is a listed entity and the Commissioner is its accountable authority (s 181A(3)).

The contrast with the aged care regulator is worth holding onto, because the two are easily conflated. The Aged Care Act 2024 (Cth) constitutes its Commission as two statutory office-holders — a Commissioner and a separate Complaints Commissioner — and gives the Commission itself only the function of assisting them. Here there is one office-holder, and s 181D(1) confers all four function sets on that single Commissioner: the core functions, the registration and reportable incident functions, the complaints functions, and the behaviour support function. Complaints are not hived off to a separate office.

Powers conferred under the Act

The core functions in s 181E set the regulator's purposes: to uphold the rights of, and promote the health, safety and wellbeing of, people with disability receiving supports or services; to develop a nationally consistent approach to quality and safeguards; to promote advice, information, education and training; to secure compliance with the Act through effective compliance and enforcement arrangements, including the monitoring and investigation functions in Part 3B of Chapter 4; to promote continuous improvement; and to develop and oversee the broad policy design for a nationally consistent worker screening framework.

The operative powers a student is most likely to reason about are two. Section 73ZM provides for compliance notices. Section 73ZN provides for banning orders: the Commissioner may, by written notice, make an order prohibiting or restricting a person from engaging in specified activities. The grounds include that the Commissioner reasonably believes the person has contravened, is contravening or is likely to contravene the Act, has been or is likely to be involved in another's contravention, or is not suitable to be involved in providing supports or services having regard to matters prescribed by the rules; or that there is an immediate danger to the health, safety or wellbeing of a person with disability. A banning order may also be made where the person is convicted of an offence involving fraud or dishonesty, or becomes an insolvent under administration. Section 73ZN reaches not only providers but people employed or otherwise engaged by a provider and members of a provider's key personnel.

Is it a prosecuting authority?

No. Like the aged care Commissioner, this Commissioner enforces civil penalty provisions as an authorised applicant under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014, rather than by prosecution (s 73ZK(2)). The relevant courts are the Federal Court, the Federal Circuit and Family Court of Australia (Division 2), and a court of a State or Territory with jurisdiction in matters arising under the Act (s 73ZK(3)).

The banning order is the more important distinction. It is exercised by the Commissioner by written notice, not by a court, so it takes effect administratively and its accountability is administrative — reasons, review and judicial review — rather than curial in the first instance.

Self-check

• Have I remembered that the Commission has no legal identity separate from the Commonwealth?
• Have I attributed the function to the Commissioner, who holds all four function sets, rather than assuming a separate complaints office as in aged care?
• Have I distinguished the banning order, made by written notice, from a civil penalty, which requires a court?