Appendix 1

Compliance and enforcement powers of the Commission under the Regulatory Powers (Standard Provisions) Act 2014

The NDIS Quality and Safeguards Commission has monitoring, compliance, investigation and enforcement powers which are comparable to other Commonwealth regulators. As noted in the Commission's initial submission to the inquiry, some of its powers are conferred by provisions of the National Disability Insurance Scheme Act 2013 (NDIS Act) operating in conjunction with the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act). The Regulatory Powers Act sets out uniform regulatory powers and arrangements for Commonwealth bodies that, must be 'triggered' by another Act in order to be available to those bodies.1

Monitoring and investigation under the Regulatory Powers Act

People appointed by the Commissioner as inspectors and investigators have—respectively—access to monitoring and investigation powers under the Regulatory Powers Act, as enlivened by the NDIS Act.
Under the Regulatory Powers Act, inspectors may enter premises and exercise monitoring powers for the purposes of determining whether a provision of the NDIS Act that is subject to monitoring has been, or is being, complied with; or for the purpose of determining whether information subject to monitoring is correct.2
Investigators may enter premises and exercise investigation powers if they suspect on reasonable grounds that there may be evidential material on the premises.3
Inspectors and investigators may only enter premises if the occupier has consented to the entry, or if the entry is made under a warrant.4
All provisions of Part 3A of Chapter 4 in the NDIS Act are subject to monitoring. The civil penalty provisions in that Part, and offences against the Crimes Act 1914 or the Criminal Code relating to that Part, are also subject to investigation. Relevantly, Part 3A of Chapter 4 of the NDIS Act sets out the obligations of NDIS providers, including: compliance with the conditions of registration; compliance with the Code of Conduct; reporting requirements; the prohibition on unregistered providers delivering certain supports; and the prohibition on causing detriment to another person (or threatening to do so).5
The ‘monitoring powers’ inspectors may exercise under the Regulatory Powers Act are as follows:
The power to search the premises and any thing on the premises;
The power to examine or observe any activity conducted on the premises;
The power to inspect, examine, take measurements of or conduct tests on any thing on the premises;
The power to make any still or moving image or any recording of the premises or any thing on the premises;
The power inspect any document on the premises;
The power to take extracts from, or make copies of, any such document;
The power to take onto the premises such equipment and materials as are required for the purpose of exercising powers in relation to the premises;
The power to use electronic equipment, and secure electronic equipment on the premises for a period of 24 hours (subject to extension); and
The power secure evidence of a contravention of a provision subject to monitoring, for a period not exceeding 24 hours (subject to extension).6
The ‘investigation powers’ investigators may exercise under the Regulatory Powers Act are similar. However, it should be noted that these powers vary based on whether entry to the premises is by consent of the occupier or under a warrant. Moreover, the investigation powers are exercised for the purpose of finding and inspecting evidential material.7
Inspectors and investigators exercising powers or functions pursuant to the Regulatory Powers Act may be assisted by other persons. Such other persons may exercise monitoring and investigation powers, so long as they comply with directions given by the inspector or investigator. In addition, the exercise of powers or functions by a person assisting an inspector or investigator is taken to be an exercise of powers or functions by the inspector or investigator.8

Civil penalties enforceable under the Regulatory Powers Act

The following provisions of the NDIS Act are civil penalty provisions:
Section 73B: providing certain supports under a participant’s plan without being registered to provide that support.
Section 73D: knowingly providing false or misleading information in an application for registration.
Section 73J: failing to comply with a condition of registration.
Section 73V: contravening the NDIS Code of Conduct.
Section 73ZC: causing detriment or threatening to cause detriment to another person because of the person making a protected disclosure of information.
Section 73ZM: failing to comply with a compliance notice.
Section 73ZN: breaching a banning order.
Each of these provisions is enforceable under the Regulatory Powers Act. In effect, this means that the Commissioner may apply to specified courts for the person or entity which contravened the provision to pay a pecuniary penalty.9 Penalties amounts range from 60 penalty units ($13, 3201) to 1,000 penalty units ($222,000).10

Other enforcement provisions

Other sanction powers available to the Commissioner, through the Regulatory Powers Act include:
infringement notices (see section 73ZL of the NDIS Act and Part 5 of the Regulatory Powers Act)
enforceable undertakings (see section 73ZP of the NDIS Act and Part 6 of the Regulatory Powers Act); and
injunctions (see section 73QZ of the NDIS Act and Part 7 of the Regulatory Powers Act).
  • 1
    NDIS Quality and Safeguards Commission, Submission 42, p. 15.
  • 2
    Regulatory Powers Act, section 18.
  • 3
    Regulatory Powers Act, section 48.
  • 4
    Regulatory Powers Act, sections 18 and 48. In circumstances where consent from the occupier is not obtained, an inspector must apply for a monitoring warrant, while an investigator must apply for an investigation warrant. The process for applying for monitoring and investigation warrants is set out, respectively, in Parts 2 and 3 of the Regulatory Powers Act.
  • 5
    See NDIS Act, Chapter 4, Part 3A, in particular sections 73B, 73J, 73Q, 73R, 73V and 73ZC.
  • 6
    Regulatory Powers Act, sections 19, 20(1), 20(4), 21(2) and 22(1). Inspectors may also ask questions and seek the production of documents under section 24.
  • 7
    Regulatory Powers Act, sections 49, 50(1), 50(2), 51(2) and 52. Investigators may also ask questions and seek the production of documents under section 54.
  • 8
    Regulatory Powers Act, sections 23 and 53.
  • 9
    Regulatory Powers Act, section 82.
  • 10
    A penalty of 60 penalty units may apply where a person provides false or misleading information in, or in connection with, an application for registration. A penalty of 1,000 penalty units may apply where a person causes, or threatens to cause, detriment to another person. Pursuant to section 4AA of the Crimes Act 1914, as at November 2021, a penalty unit was set at $222.

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Past Public Hearings

20 May 2021: Canberra
17 Nov 2020: via videoconference and teleconference
13 Oct 2020: via teleconference