NDIS Quality and Safeguards Commission – Banning Orders

This article explains the mechanisms by which NDIS service providers and their employees might be prohibited from providing NDIS supports and services, or their provision of NDIS supports or services might be restricted.

For example, a banning order may be made against an individual on the ground that he or she is believed not to be suitable to provide supports or services to people with disability because of a criminal conviction or misconduct. The banning might apply to specified activities and for specified time periods.

The National Disability Insurance Scheme (NDIS) Quality and Safeguards Commission (‘the Commissioner’) was founded on the 13th of December 2017, as an independent agency with a focus on improving the quality and safety of NDIS supports and services. The office of the Commissioner investigates complaints against NDIS providers and employees and has the power to take disciplinary action pursuant to the statutory powers in place.

Statutory powers and regulatory functions

The office of the Commissioner has a range of statutory powers established under the National Disability Insurance Scheme Act 2013 (Cth) (the NDIS Act). Division 8 of the NDIS Act sets out compliance and enforcement provisions, such as monitoring powers, investigation powers, civil penalty provisions, infringement notices, compliance notices and banning orders.

The regulatory functions of the Commissioner include:

• Upholding the rights of, and promoting the health safety and wellbeing of, people with a disability receiving supports services, including those received under the NDIS;
• Regulating NDIS providers, including through the application of Practice Standards and a Code of Conduct;
• Compliance monitoring;
• Investigation of non-compliance and taking appropriate enforcement action; and
• Managing and resolving complaints from NDIS participants, carers, family members, advocates, and others.

Banning orders

Under section 73ZN of the NDIS Act the Commissioner has the power to make a banning order, which prohibits or restricts an NDIS provider or a person who is currently or formerly employed or engaged by an NDIS provider, from engaging in specified activities. Under this section a banning order can be made if the Commissioner reasonably believes that the person has contravened, is contravening or is likely to contravene a provision of the NDIS Act. A breach of the National Disability insurance Scheme (Code of Conduct) Rules 2018 is a contravention of the NDIS Act.

See below a excerpt of section 73ZN(2) of the NDIS Act that outlines grounds for a banning order against employees of the NDIS.

73ZN(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.

The Commissioner has the power to determine whether a banning order is for a permanent or specified period of time. This will be set out in the banning order and be in force from the date of the order being made. If the Commissioner is satisfied that it is appropriate, they may decide to vary or revoke the banning order under 73ZO of the NDIS Act. This may be done by the Commissioner on his or her own initiative or on application by the person whom the order is made.

If a person fails to comply with a banning order that has been imposed against them, by continuing to engaging in a specified activity prohibited by the order, then they are in breach of section 73ZN(2A)(10) of the NDIS Act, which carries a civil penalty of up to 1,000 penalty units ($222,000).

What to do if you are asked to provide submissions relating to a proposed banning order

Under 73ZN(2A) of the NDIS Act, the Commissioner may only make a banning order against a person after giving the person an opportunity to make submissions on the matter, unless the person has had their registration revoked or there is an immediate danger to the health, safety or wellbeing of a person with a disability.

Therefore, it is likely that if you are being investigated for a proposed banning order, you will be invited to make submissions to the NDIS Quality and Safeguards Commission through receipt of a show cause letter. This is an opportunity to provide context and reasons for the Commissioner to consider when making their final decision as to whether a banning order should be made against you. It is important to make quality submissions that demonstrate why the proposed banning order should not be implemented. These submissions should be highly detailed, comprehensive, and individually tailored to the specific facts relative to your situation and suitability.

To give yourself the best chance of defending a banning order and protect your best interests, it is highly recommended that you consult a lawyer to assist you in making these submissions. Strong submissions can greatly increase your chances of preventing or reducing the severity of a banning order.

The Litigation team at Potts Lawyers are highly experienced in these matters and ready to assist you. We are here to help, call Potts Lawyers on (07) 5532 3133 or make an enquiry through our website today.