Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629

FEDERAL COURT OF AUSTRALIA

Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629 File number(s): NSD 1256 of 2021

Judgment of: ABRAHAM J

Date of judgment: 14 June 2023

Catchwords: CIVIL PENALTY – proceeding for civil contraventions of ss 73J and 73V of the National Disability Insurance Scheme Act 2013 (Cth) – where failures involved breach of NDIS Code of Conduct and NDIS Practice Guidelines – where conduct serious – where failures placed NDIS participant at a real and significant risk and may have caused or contributed to their death – where first proceeding of its kind under the NDIS Act – where mitigating factors present – whether same conduct lead to multiple contraventions such that resulting penalty must avoid double punishment – whether appropriate for Court to make declarations of contraventions and to impose civil penalties sought. HELD – the contraventions of ss 73J and 73V were pleaded separately and relate to different conduct – Court satisfied that declarations and pecuniary penalty sought appropriate having regard to all relevant matters.

Legislation: Crimes Act 1914 (Cth) s 4AA National Disability Insurance Scheme Act 2013 (Cth) ss 3, 4, 73E-73H, 73J, 73T, 73V, 181A, 181E, 181D, 209 National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth) ss 5, 6(c) National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) s 26, sch 1 part 5 cls 23, 24 National Disability Insurance Scheme (Quality Indicators) Guidelines 2018 (Cth) s 24 Regulatory Powers (Standard Provisions) Act 2014 (Cth) ss 82-85