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[2025] NSWCA 238
appellant. Leave to appeal was granted; the appeal was allowed; and the declaration made by the primary judge on 19 September 2025 was set aside. The Court also directed that the draft notice of appeal and...
The Court of Appeal held that s 67G does not protect every document an NDIS provider creates or holds while serving a participant. It applies where possession of the material is because of a duty, function or power derived from the NDIS Act, not simply because the provider is registered or its work is regulated by that Act. The particular LBW records were not shown to have been held because of the statutory duties relied on by MM. As a result, s 67G did not conflict with the State provision requiring their production in this case. The Court allowed the Attorney General’s appeal and set aside the declaration made below.
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The appeal concerned the interaction between a New South Wales compulsory-production provision and a Commonwealth protection for certain documents and information. The State provision was s 138 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act). The Commonwealth provision was s 67G of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
MM is an NDIS participant with a mild neurocognitive disorder. He became a forensic patient in September 2022 following a special hearing and a qualified finding of guilt concerning aggravated sexual assault: [15], [17]. His status had previously been extended, and the Attorney General later sought a further extension. In those proceedings, the Attorney General sought documents from Little Blue Wren Services Pty Ltd (LBW), MM’s former support coordinator and a registered NDIS provider: [16], [19]-[22].
LBW produced a limited number of documents under orders made pursuant to s 138. The respondent objected to their use, arguing that s 67G prevented compulsory production because the records were held by LBW in the course of providing NDIS supports. The primary judge accepted that broad position and declared s 138 inconsistent with s 67G in defined circumstances: [4]-[6], [21]-[22].
The Attorney General appealed. The respondent’s principal alternative argument was that the particular documents were held because of specific duties imposed on registered providers by the NDIS Act, including provisions on payment claims, registration conditions, complaints systems and incident management: [9], [128]. The Court of Appeal granted leave because the construction issue was of public importance and had not received appellate consideration: [25]-[27].
The appeal was heard urgently because the application to extend MM’s forensic-patient status was listed for 7 November 2025, and the Attorney General wished the relevant experts to be able to review the LBW material: [23]-[24]. The Court allowed the appeal and set aside the primary judge’s declaration: [178].
The Court treated the dispute as one about the proper scope of s 67G, not as a general contest between privacy and law enforcement. The parties accepted that an operational inconsistency between the provisions was possible, but disagreed about which documents s 67G covered: [10].
The statutory text protected a person from being required to produce a document in their possession “because of the performance or exercise” of duties, functions or powers “under” the NDIS Act: [52]. The Court said that “because of” calls for a causal connection between the holding of the document and the relevant statutory activity: [157]. It also concluded that “duties, powers or functions” is a composite expression in this provision, though the outcome did not depend on that characterisation: [158]-[164].
The key interpretive question was “under”. The Court distinguished three kinds of activity described in the NDIS Act: activity under a participant’s plan, activity under the NDIS Scheme, and activity under the NDIS Act itself. That distinction directed attention to whether the activity was carried out pursuant to a statutory obligation, requirement or enabling provision derived from the Act: [165]. Being registered, or supplying supports as a registered provider, did not alone establish that the activity was a duty, function or power under the Act.
The Court then considered the specific documents and statutory provisions put forward by the respondent. Section 45A concerned claims for payment. In the Court’s view, it did not create a duty to make a claim. Rather, if a provider chose to make a claim, the provision specified requirements for doing so: [149]. That distinction mattered because records associated with a claim were not automatically held because of a statutory duty to provide supports.
The Court also examined the claimed record-keeping basis for the support-coordination report and support plan. It did not consider those documents to have been prepared or kept under a statutory duty identified by the respondent. The Court noted that the respondent did not rely on s 73Q as the source of a duty to keep these particular records, and that the rules said to be relevant to record-keeping did not apply to them: [150].
For the case notes and incident-related records, the Court found that none recorded a “reportable incident” within the meaning of the legislation. It accepted that registered providers were required to operate complaints and incident-management systems, but observed that the relevant record-keeping requirements relied on by the respondent derived from the NDIS Rules, not directly from the NDIS Act: [151]-[152]. The Court therefore rejected the argument that these documents were protected by s 67G: [153].
The Court also rejected the broader argument that providing supports as a registered provider was itself a function “under” the NDIS Act. The Act regulates registered providers and imposes conditions, but that does not necessarily mean the provider’s underlying activity derives its authority or legal force from the Act. The statutory context and purpose supported the narrower reading: [165], [172]-[174].
Finally, the Court rejected the idea that participant-provider confidence required a broader interpretation. It found no textual support for making providers immune from compulsory production on that basis. It also noted that other confidential relationships, such as doctor-patient relationships, do not generally make records immune from compulsory production: [175].
Before this appeal, the primary judge had held that registered providers were performing duties, functions or powers under the NDIS Act when delivering the supports and services for which they were registered. On that construction, documents held because of that work were protected by s 67G: [4]. The resulting declaration treated s 138 as inconsistent with s 67G in specified circumstances involving a registered provider, an NDIS participant and material held through the provider’s work: [5].
The Court of Appeal replaced that broad approach with a more focused construction. Section 67G is not a general confidentiality rule covering all records held by NDIS providers. The statutory link must be established: the document must be held because of a duty, function or power that is properly characterised as being under the NDIS Act. A provider’s registration or the fact that the service is regulated by the NDIS Act is not enough by itself: [165], [172]-[174].
The Court’s reasoning draws on the distinction between activity authorised or required by statute and activity that a person could undertake independently, even though legislation regulates it. The Court discussed Griffith University v Tang and Fuller v Lawrence in considering the meaning of “under” an enactment, while warning that statutory expressions must be construed in the context of the particular legislation: [166]-[172]. It noted that the question may involve whether the legislation itself provides the authority, force or justification for the activity: [172].
The practical holding is confined to the material and statutory arguments before the Court. It decided that s 67G did not prevent production of the LBW documents under s 138 in this case: [177]. It did not declare that every NDIS provider document is producible, nor did it decide that no provider record can ever fall within s 67G. The relevant statutory connection and causal link remain important.
The Court also did not determine every issue that might arise about the later use or admissibility of the documents in the forensic-patient proceedings. Its conclusion was that s 67G did not create an operational inconsistency with s 138 as applied to the documents required to be produced in this case: [177].
At [165], the Court said the focus should be on whether an activity is performed “pursuant to some statutory obligation or requirement or enabling provision derived from the NDIS Act itself.” In plain English, the question is not just whether the provider is subject to the NDIS scheme. It is whether the Act itself supplies the legal source for the relevant duty or activity that explains why the provider holds the document.
At [172], the Court cautioned that “the proper interpretation of the word ‘under’ must give weight to legislative purpose and context.” This avoids treating “under” as having one automatic meaning across every statute. The Court considered the NDIS Act’s own distinctions and the purpose of the provisions, while using cases about other statutes as guidance rather than as a mechanical formula.
At [149], the Court said that s 45A did not impose a “duty” to make a payment claim. It provided requirements that apply if a payment claim is made. In practical terms, a document’s connection to a possible payment claim did not establish that the provider was legally required to create or hold it.
At [152], the Court accepted that registered providers must implement complaints and incident-management systems. But it distinguished that statutory requirement from particular record-keeping obligations said to arise under rules made pursuant to the Act. The distinction mattered because the respondent had to connect these specific documents to a qualifying duty under s 67G.
At [173]-[174], the Court rejected a blanket interpretation that would prevent providers from being compelled to produce a broad range of documents. It considered that this could undermine some purposes of the NDIS Act and make access to records depend on a more cumbersome process involving the Commissioner. These observations helped explain the Court’s construction, but the decision remained grounded in the statutory text and the records before it.
The decision is most directly relevant where a party seeks to rely on s 67G to resist a compulsory demand for documents held by an NDIS provider. The key issue will be how the provider came to hold the particular document and whether that possession is because of the performance or exercise of a qualifying duty, function or power under the NDIS Act: [52], [157], [165].
The judgment indicates that the following facts, standing alone, do not settle the question: the provider is registered; the person receiving supports is an NDIS participant; the service relates to the participant’s plan; or the provider’s conduct is regulated by the NDIS Act. The Court expressly considered registration and service provision insufficient on their own to establish a statutory function under the Act: [165].
The decision also shows why the specific statutory source and the document’s function matter. A payment claim, a support plan, a progress note, an incident record and a complaint record may have different origins and statutory connections. Labels such as “incident note” are not conclusive; the Court looked at whether the material recorded a reportable incident and whether the provisions relied on required those records to be kept: [135]-[148], [151].
The judgment does not remove the need for document-by-document analysis. The Court reviewed the confidential exhibit in groups and considered the provisions relied upon for each category: [129]-[153]. It also recognised that “because of” raises a causal question about why a provider holds particular material: [157]. A dispute involving different record-keeping rules, different facts about why documents were made, or different statutory duties may therefore require separate analysis.
The constitutional dimension arises only if the Commonwealth and State provisions operate inconsistently in the circumstances. Here the Court concluded there was no inconsistency for the documents at issue because s 67G did not cover them: [177]. The judgment does not decide the application of s 67G to every compulsory process or every kind of NDIS record.
The judgment is dated 28 October 2025. The text supplied here contains no later judicial decisions applying or considering it, so no account of subsequent treatment can be grounded in this source.
The Court itself considered earlier authorities on statutory interpretation and the meaning of “under” an enactment. It discussed Tang and Fuller in relation to statutory authority and legal effect, and stressed the need to attend to the particular statute’s purpose and context: [166]-[172]. It referred to Uber and Stone v Guli for caution when drawing on decisions about the word “under” in different legislative schemes: [170].
The Court expressly disagreed with the broad construction attributed to Tasmania v TJG, stating that it respectfully disagreed with that decision for the reasons it had given: [176]. That is the judgment’s direct treatment of the earlier NDIS-specific authority.
The judgment leaves open how s 67G applies where a provider can demonstrate that a particular document was created or retained because of a specific statutory obligation under the NDIS Act. The Court decided that the particular LBW material was not shown to have that connection. It did not establish that no record-keeping duty could ever bring provider documents within s 67G: [150]-[153].
It also leaves open how the provision applies where the relevant duty arises through rules made under the NDIS Act. The Court observed, in relation to the documents before it, that some claimed record-keeping requirements derived from the rules rather than directly from the Act: [152]. The judgment’s general formulation asks whether the duty, function or power is derived from the NDIS Act itself, but the supplied reasons do not resolve every possible relationship between the Act, rules made under it and particular records.
A further question is how courts should assess the causal link expressed by “because of” where a provider would have created or retained a record in the ordinary course of business even without a statutory requirement. The Court noted the issue of factual causation but decided the present appeal on the materials and statutory provisions before it: [104]-[105], [157].
The case also leaves the broader boundary between statutory regulation and statutory authorisation to be worked out in future contexts. Its test requires attention to whether the legislation supplies the authority, force or justification for the activity, while cautioning against importing a rule mechanically from other statutory settings: [170]-[172].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Attorney General for NSW v MM (a pseudonym) by his tutor Barbara Ramjan [2025] NSWCA 238
Hearing dates: 20 October 2025
Date of orders: 28 October 2025
Decision date: 28 October 2025
Before: Ward P; Stern JA; Griffiths AJA
Decision: 1. Grant leave to appeal.
2. Direct that the draft notice of appeal be filed by 10am, 29 October 2025.
3. Direct that the draft notice of contention be filed by 10am, 29 October 2025.
4. Allow the appeal.
5. Set aside the declaration made by the primary judge on 19 September 2025.
Catchwords: CONSTITUTIONAL LAW – Commonwealth and State relations – inconsistency of laws – where respondent is a National Disability Insurance Scheme participant – where respondent became a forensic patient pursuant to s 73(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) – where the applicant seeks the respondent’s status as a forensic patient to be extended by 18 months – whether material obtained by the applicant from a registered NDIS service provider pursuant to s 138 of the MHCIFP for the purpose of that application is admissible – whether there is an operational inconsistency between s 138 of MHCIFP Act and s 67G of the National Disability Insurance Scheme Act (2013) (Cth) such that to that extent the former is invalid pursuant to s 109 of the Commonwealth Constitution
Legislation Cited: Child Care Act 1972 (Cth), s 12M
Crimes Act 1900 (NSW), s 61J(1)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16(1)(db)
Homes Act 1935 (Tas)
Judicial Review Act 1991 (Qld)
Judicial Review Act 2000 (Tas)
Judiciary Act 1903 (Cth), s 78B
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 71(1)(b), 72(1)(b), 123,138
National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth), rr 3, 6
National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 (Cth)
National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth), rr (12)(2), 12(4)
National Disability Insurance Scheme (Practice Standards — Worker Screening) Rules 2018 (Cth)
National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth), sch 1, cll 10, 12(2), 19(12)
National Disability Insurance Scheme Act 2013 (Cth), ss 3, 4, 6, 8, 9, 18, 24, 31, 32, 32D, 33, 35, 42, 45, 45A, 46(3), 53, 55, 55A, 56, 57, 58, 60, 62, 63, 64, 65, 66, 67, 67A, 67B, 67C, 67D, 67E, 67F, 67G, 73, 73B, 73C, 73E, 73F, 73G, 73H, 73J, 73N, 73P, 73Q, 73T, 73V,73W, 73Y, 73Z, 73ZE, 73ZF, 73ZR, 80, 118, 123, 159, 169, 170, 171, 180A, 180B, 180D, 180F, 181, 181B, 181E, 181F, 181U, 181V, 208
National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017 (Cth)
Payroll Tax Act 2007 (NSW), s 32(1)(b)
Royal Commissions Act 1902 (Cth)
Student Assistance Act 1973 (Cth), s 354
Whistleblowers Protection Act 2001 (Vic)
Cases Cited: Attorney General for New South Wales v MM (a pseudonym) (bht Johnson) (Final) [2024] NSWSC 1030
Attorney General for New South Wales v MM (a pseudonym) (bht Ramjam) (Preliminary) [2025] NSWSC 941
Attorney General for New South Wales v MM (Preliminary) [2024] NSWSC 599
Attorney General for NSW v MM (a pseudonym) by his tutor Barbara Ramjan [2025] NSWSC 1074
Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1; [1952] HCA 32
Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2
Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36
Cooper v Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250
Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15
Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360
Fuller v Lawrence (2024) 99 ALJR 103; [2024] HCA 45
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7
Jordan v Second Commissioner of Taxation [2019] FCA 1602
King v Director of Housing (2013) 23 Tas R 353; [2013] TASFC 9
National Disability Insurance Agency v WRMF (2020) 276 FCR 415; [2020] FCAFC 79
NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35
Piras v Thaisawat (1993) 115 FLR 79
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Scharrer v New South Wales (2001) 53 NSWLR 299; [2001] NSWCA 360
Sea Shepherd Australia Ltd v Commissioner of Taxation (2013) 212 FCR 252; [2013] FCAFC 68
Smith v Victoria Police (2012) 36 VR 97; [2012] VSC 374
Stone v Guli [2020] QCA 288
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34
Tasmania v TJG [2021] TASSC 47
Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; [2003] HCA 54
XYZ v Commonwealth (2006) 227 CLR 532; [2006] HCA 25
Texts Cited: Explanatory Memorandum, National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017
Explanatory Memorandum, National Disability Insurance Scheme Bill 2013
Category: Principal judgment
Parties: Attorney General of New South Wales (Applicant)
MM (a pseudonym) by his tutor Barbara Ramjan (Respondent)
Representation: Counsel:
JS Emmett SC with RA McEwen (Applicant)
B Lim SC with A Mohseni (Respondent)
Solicitors:
Crown Solicitor’s Office (Applicant)
Legal Aid NSW (Respondent)
File Number(s): 2025/00369134
Publication restriction: Restriction on publication of the respondent’s name
In September 2022, the respondent, an Aboriginal man in his late 50s, whose name is suppressed, became a forensic patient pursuant to s 72(1)(b) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act), following a special hearing conducted in the District Court in which a qualified finding of guilt was made in respect of the commission by the respondent of an offence of aggravated sexual assault of a person under the respondent’s authority contrary to s 61J(1) of the Crimes Act 1900 (NSW).
The respondent has a lengthy criminal history, including several offences involving violence, and a history of non-compliance with court orders and bail undertakings. The respondent has a mild neurocognitive disorder and is a National Disability Insurance Scheme (NDIS) participant. Little Blue Wren Services Pty Ltd (LBW) is a registered NDIS service provider and acted as the respondent’s support coordinator until June 2025.
The respondent’s status as a forensic patient was set to expire on 27 May 2024. On 3 November 2023, a conditional release order was made by the Mental Health Review Tribunal in respect of the respondent (who had been in custody since his arrest in respect of the offence he was found to have committed).
The applicant, the Attorney General of New South Wales, then commenced proceedings seeking an order that the respondent’s status as a forensic patient be extended by 18 months. The constitutional issue the subject of the present proceedings was raised in the context of the hearing before Ierace J on 31 July 2025 of those proceedings. In written submissions for that hearing the applicant had referred to material obtained from LBW pursuant to s 138 of the MHCIFP relating to the respondent. The respondent objected to the tender of that LBW material, contending that there is an operational inconsistency between s 67G of the National Disability Insurance Scheme Act 2013 (Cth) and s 138 of the MHCIFP Act such that s 67G is rendered inoperative pursuant to s 109 of the Constitution. An interim order was made by Ierace J, extending the respondent’s status as a forensic patient until 15 November 2025.
Weinstein J heard the constitutional issue and concluded that registered NDIS providers are performing duties, functions or powers under the NDIS Act in the course of providing the supports and services for which they are registered to an NDIS participant. His Honour held that LBW could not be compelled to produce documents in its possession concerning the respondent’s behaviour and mental condition because s 138 of the MHCIFP Act was inconsistent with the operation of s 67G(a) of the NDIS Act and was to that extent constitutionally invalid.
The applicant seeks leave to appeal against that decision. The final hearing of the application pursuant to s 123 of the MHCIFP Act to extend the respondent’s status as a forensic patient is listed for hearing on 7 November 2025. If this appeal is successful, the applicant wishes to make the LBW documents available to the expert(s) for review prior to that hearing. Hence the appeal has been heard and dealt with as a matter of urgency.
On appeal, the applicant contends that, on its proper construction, s 67G of the NDIS Act captures only documents held by the NDIS provider because of the exercise or performance of a power, function or duty, the carrying out of which is enabled or mandated (as opposed to merely regulated) by the NDIS Act. The respondent resists that construction and has filed a notice of contention seeking to uphold the primary judgment on the basis that the LBW documents produced under compulsion were held because of specific duties imposed on the registered NDIS provider under the NDIS Act.
The respondent advances his argument in two alternative ways. First, the narrower contention reflected in his notice of contention that the documents held and produced by LBW in compliance with the s 138 orders are documents held or in the possession of LBW because of the performance or exercise of its “duties” under the NDIS Act. Alternatively, the respondent contends that s 67G captures all documents prepared or held by registered service providers in the performance or exercise of their duties, powers or functions under the NDIS Act and that the documents in question fall within that description.
(1) Contrary to the respondent’s primary argument, the documents produced by LBW in compliance with the s 138 orders were not documents held or in the possession of LBW in the performance or exercise of its “duties” under the Act. Upon review of those documents, it is clear that the documents could not be said to have been held or possessed by LBW in the exercise or performance of duties said to have been imposed by ss 45A, 73F, 73W or 73Z of the NDIS Act: [128]-[153].
(2) Duties, functions or powers “under” the NDIS Act do not extend beyond functions that are conferred or imposed directly or immediately by the statute. The proper construction of the word “under” must give weight to the NDIS Act’s legislative purpose and context, and the question whether a power, duty or function, is properly characterised as falling “under” the NDIS Act requires consideration of whether the legislation itself provides the authority, force or justification for its exercise or occurrence. Accordingly, the proper enquiry is whether the duty, power or function is being performed or exercised pursuant to some statutory obligation or enabling provision derived from the NDIS Act itself: [165]-[172].
Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7; Fuller v Lawrence [2024] HCA 35; (2024) 99 ALJR 103; Neat Domestic trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35; Scharrer v New South Wales (2001) 53 NSWLR 299; [2001] NSWCA 360; Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172; Stone v Guli [2020] QCA 288; King v Director of Housing (2013) 23 Tas R 353; [2013] TASFC 9, cited.
(3) On its proper construction, s 67G of the NDIS Act captures only documents held by the NDIS provider because of the exercise or performance of a power, function or duty, the carrying out of which is enabled or mandated (as opposed to merely regulated) by the NDIS Act. This is consistent with the purpose of the NDIS Act. The respondent’s construction, which would result in a blanket embargo on an NDIS provider being compulsorily required to produce documents to a court or authority, may undermine some of the purposes of the NDIS Act: [173]-[174].
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 335; [1998] HCA 2; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936; Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, considered.
Tasmania v TJG [2021] TASSC 47, not followed.
(4) The phrase “duties, powers or functions” as used in s 67G of the NDIS Act is a composite phrase rather than reference to three distinct subject matters. However, the constructional issue does not depend on the phrase “duties, powers or functions” being read as a composite phrase: [157]-[164].
Victims Compensation Fund Corporation v Brown [2003] CA 54; 77 ALJR 1797; XYZ v Commonwealth (2006) 227 CLR 532; [2006] HCA 25; Sea Shepherd Australia Ltd v Commissioner of Taxation (2013) 212 FCR 252; [2013] FCAFC 68; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36; National Disability Insurance Agency v WRMF (2020) 276 FCR 415 [2020] FCAFC 79; Cooper v Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250, considered.
(5) There is nothing extraordinary about the relationship of confidence between NDIS provider and participant to warrant a different conclusion as to the proper construction of s 67G of the NDIS Act. Nor is there textual support for treating the relationship between participant and service provider as rendering the latter immune to compulsory production of the records in question in these proceedings: [175].
THE COURT: The applicant, the Attorney General for New South Wales, seeks leave to appeal from a decision of Weinstein J (Attorney General for NSW v MM (a pseudonym) by his tutor Barbara Ramjan [2025] NSWSC 1074 (the primary judgment)) in which his Honour held that there is an operational inconsistency between s 138 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) and s 67G of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) such that, to the extent of that inconsistency, the NDIS Act must prevail ([81] of the primary judgment).
The issue had arisen in the course of proceedings under s 123 of the MHCIFP Act in circumstances where orders had been made under s 138 of that Act requiring the production of documents relating to the behaviour or physical or mental condition of the respondent by his (now former) registered National Disability Insurance Scheme (NDIS) service provider, Little Blue Wren Services Pty Ltd (LBW). LBW produced a limited number of documents in compliance with those orders (which were marked as a Confidential Exhibit by the primary judge and were before this Court, separated into eight groups or documents).
The respondent contended that those documents had been obtained in contravention of s 67G of the NDIS Act, which, as set out in due course, precludes a person (except for the purposes of the NDIS Act or the Royal Commissions Act 1902 (Cth) (Royal Commissions Act)) from being compelled to produce certain documents or disclose certain information. The documents and information the subject of s 67G of the NDIS Act are documents in the possession of a person “because of the performance or exercise of his or her duties, functions or powers under [the NDIS Act]” and any matter or thing of which a person has notice “because of the performance or exercise of such duties, functions or powers”.
His Honour concluded, at [70], that:
In my opinion, the text and statutory context of s 67G and the broader purposes of the NDIS Act make it clear that registered NDIS providers are performing duties, functions or powers under the NDIS Act in the course of providing the supports and services for which they are registered to an NDIS participant. Any documents possessed because of the performance of those duties, functions and powers are captured by s 67G of the NDIS Act and are protected from compulsory production.
(1) A declaration that, for the purposes of s 109 of the Constitution, section 138 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) is inconsistent with section 67G of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act), insofar as s 138 purports to empower a Minister administering the MHCIFP Act to order a person (compelled person) to produce any document, report or information to the Minister concerning a forensic patient (within the meaning of the MHCIFP Act) in circumstances where:
(a) the compelled person is a “registered NDIS provider” under the NDIS Act;
(b) the forensic patient is a participant in the National Disability Insurance Scheme (within the meaning of the NDIS Act); and
(c) the compelled person has the material sought by the order because of the person’s exercise of duties or functions as the registered NDIS provider of supports for the forensic patient.
Framed in those terms, the declaration in effect assumes that the provision of supports by a registered NDIS provider involves the exercise of duties or functions “under” the NDIS Act (the conclusion his Honour reached at [70]).
The applicant contends that, on its proper construction, s 67G of the NDIS Act captures only documents which are held by the NDIS provider because of the exercise or performance of a power, function or duty the carrying out of which is enabled (or enabled and mandated), as opposed to merely regulated, by the NDIS Act; and that the documents produced by LBW do not fall within that scope.
The applicant seeks leave to appeal on the sole ground of appeal set out in his draft notice of appeal:
1 The primary judge erred in finding that s 67G of the N**ational D**isability Insurance Scheme Act (Cth) (NDIS Act) applies to any document created or possessed by a registered NDIS provider (within the meaning of the NDIS Act) in the course of providing services and supports to a participant in the NDIS.
1 The documents produced under compulsion were held because of the performance of specific duties imposed on the registered NDIS provider under the National Disability Insurance Scheme Act 2013 (Cth), namely: ss 45A, 73F, 73J, 73W, 73Y, 73Z.
There was and is no dispute between the parties that there is a potential operational inconsistency between s 67G of the NDIS Act and s 138 of the MHCIFP Act. Rather, the dispute is as to the proper scope of the former and the extent to which it is operationally inconsistent with the latter*.* Prior to the hearing at first instance, the respondent issued a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) to the Commonwealth, State and Territory Attorneys-General, none of whom intervened in the proceedings (the Attorney General for New South Wales, as already noted, was joined as a party to the proceedings and hence not an intervener).
The application for leave to appeal was heard on 20 October 2025 concurrently with the hearing of the appeal in the event that leave were to be granted. This Court was asked to deliver reasons with expedition in light of the timeframe for the ongoing MHCIFP proceedings, as explained below.
For the reasons that follow, leave to appeal will be granted and the appeal allowed.
The background to the present application can be summarised briefly, as gleaned from the Joint Statement of Agreed Facts in the primary proceedings (and set out in more detail by the primary judge at [5]-[18]).
The respondent is an Aboriginal man in his late 50s, residing in West Tamworth in a property leased from a community housing provider (see [6] of the primary judgment). The respondent has a lengthy criminal history, including a number of offences involving violence, and a history of non-compliance with court orders and bail undertakings ([7] of the primary judgment).
The respondent has a mild neurocognitive disorder and is an NDIS participant; his current NDIS plan being due to expire in May 2026.
LBW, as already noted, is a registered NDIS service provider. LBW acted as the respondent’s support coordinator until June 2025. LBW prepared the respondent’s current NDIS plan. The respondent now has two NDIS service providers (only one of which, as we understand it, is a registered NDIS service provider).
In September 2022, the respondent became a forensic patient pursuant to s 72(1)(b) of the MHCIFP Act following a special hearing conducted in the District Court in which a qualified finding of guilt was made as to the commission by the respondent of an offence of aggravated sexual assault of a person under the respondent’s authority contrary to s 61J(1) of the Crimes Act 1900 (NSW). The respondent’s status as a forensic patient was set to expire on 27 May 2024.
On 3 November 2023, prior to the expiry of the respondent’s status as a forensic patient, a conditional release order was made by the Mental Health Review Tribunal in respect of the respondent (who had been in custody following his arrest in respect of the offence he was found to have committed).
The applicant commenced proceedings seeking an order that the respondent’s status as a forensic patient be extended by 18 months and, following a preliminary hearing before Sweeney J, an interim order was made extending that status for three months to 27 August 2024 (see Attorney General for New South Wales v MM (Preliminary) [2024] NSWSC 599). On 7 August 2024, after a final hearing before Dhanji J, the respondent’s status as a forensic patient was extended for 12 months, expiring on 16 August 2025 (see *Attorney General for New South Wales v MM (a pseudonym) (*bht Johnson) (Final) [2024] NSWSC 1030).
On 16 May 2025, the applicant again filed a summons seeking interim and final orders extending the respondent’s status as a forensic patient. An interim order was made by Ierace J on 31 July 2025, extending the respondent’s status as a forensic patient to 15 November 2025 (see Attorney General for New South Wales v MM (a pseudonym) ( ) (Preliminary) [2025] NSWSC 941). It was in the context of the preliminary hearing before Ierace J on 31 July 2025 that the constitutional issue the subject of the present application arose.
As noted above, the respondent does not oppose the grant of appeal. In our view, leave should be granted. The proposed appeal raises an issue of the proper construction of s 67G of the NDIS Act which is of public importance and which has not been the subject of appellate consideration.
As submitted by the applicant, the effect of the findings of the primary judge is that a (potentially large) number of documents in the possession of NDIS providers will be shielded from the ordinary compulsory production processes of State criminal investigation, law enforcement and civil procedure. This was in effect conceded by Senior Counsel for the respondent in argument before this Court, though it was submitted that this was explicable by reference to the “extraordinary relationship” created by the NDIS Act between participants and registered NDIS service providers (the respondent more than once drawing a distinction between exogenous commercial activity merely regulated by statute and what the respondent identifies as the legislative policy encapsulated in the NDIS Act to “enlist” or “harness” the private sector to deliver supports for scheme participants within a system of registration). The respondent submits that, in taking steps to “harness” the private sector, the NDIS Act has created the conditions for a relationship of vulnerability between participants and providers under the scheme; and says that s 67G is a designedly broad provision intended to protect not simply private information but an important confidential relationship between registered providers and scheme participants.
In circumstances where there is a clear issue of public importance and we consider that the decision reached at first instance is attended by sufficient doubt to warrant reconsideration, leave will be granted for the appeal.
It is necessary to set out several of the provisions of the NDIS Act, to which we were taken during oral submissions by Senior Counsel for both parties, in some detail.
At the outset, we note that the NDIS Act creates a body known as the National Disability Insurance Agency (Chapter 6), the functions of which include “delivering” the Scheme (see the simplified outline in s 8), headed by a Chief Executive Officer (CEO) and governed by the Board of the Agency; and, since amendments were made in 2017, establishes a Commission (the NDIS Quality and Safeguards Commission) and the office of the NDIS Quality and Safeguards Commissioner (Chapter 6A), the functions of which include registering and overseeing the operation of NDIS providers and managing and resolving complaints about NDIS providers.
The objects of the NDIS Act are specified in s 3(1), including:
(a) in conjunction with other laws, give effect to Australia’s obligations under the Convention on the Rights of Persons with Disabilities done at New York on 13 December 2006 ([2008] ATS 12); and
…
(c) support the independence and social and economic participation of people with disability; and
(d) provide reasonable and necessary supports, including early intervention supports, for participants in the National Disability Insurance Scheme; and
(e) enable people with disability to exercise choice and control in the pursuit of their goals and the planning and delivery of their supports; and
…
(g) promote the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community; and
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme; and
…
The respondent here emphasises that the provision of supports is itself a statutory object (not merely the regulation of the provision of such supports), referring to sub-s (1)(d).
Section 3(2) provides that the statutory objects are to be achieved by:
(a) providing the foundation for governments to work together to develop and implement the National Disability Insurance Scheme; and
(b) adopting an insurance‑based approach, informed by actuarial analysis, to the provision and funding of supports for people with disability; and
(c) establishing a national regulatory framework for persons and entities who provide supports and services to people with disability, including certain supports and services provided outside the National Disability Insurance Scheme.
The respondent relies on sub-s (2)(c) as indicating that Parliament’s design choice was to enlist (or harness) the private sector to achieve the statutory objects of the NDIS Act. The applicant also, though in the context of different submissions, points to the legislative expectation that supports and services will be provided both pursuant to and outside the NDIS.
Section 3(3) provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the matters set out in sub-ss (b)-(d), including the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.
Section 4 (headed “General principles guiding actions under this Act”) sets out various principles in relation to people with disability and their families (see, for example sub-ss (6) and (7)) and includes:
(14) People with disability should be supported to receive supports outside the National Disability Insurance Scheme, and be assisted to coordinate these supports with the supports provided under the National Disability Insurance Scheme.
(15) In exercising their right to choice and control, people with disability require access to a diverse and sustainable market for disability supports in which innovation, quality, continuous improvement, contemporary best practice and effectiveness in the provision of those supports is promoted.
…
(17) It is the intention of the Parliament that the Ministerial Council, the Minister, the Board, the CEO, the Commissioner and any other person or body is to perform functions and exercise powers under this Act in accordance with these principles, having regard to the need to ensure the financial sustainability of the National Disability Insurance Scheme.
The respondent here emphasises the recognition of the right to choice and control of participants to go into the marketplace to obtain supports and services; and submits that this is indicative of an intention by the legislature to create the market for, and the supply of, services by statutory intervention. The applicant, on the other hand, points to the reference in sub-s (14) to co-ordination of supports both provided under the NDIS and provided outside the NDIS as going to the regulation of those supports.
While sub-s (17) refers only to functions and powers (not duties), the respondent emphasises that there is recognition in the statute that other persons and bodies will perform functions and exercise powers under the NDIS Act (i.e., not simply service providers). Insofar as the heading refers to “actions” under the NDIS Act, the respondent submits that nothing turns on this for the construction of s 67G.
Section 8, as adverted to above, sets out a simplified outline of the NDIS Act, including an articulation of: what the NDIS comprises; the administrative provisions supporting the operation of the NDIS; and provision for the regulation of persons and entities who provide supports and services to people with disability “under” the NDIS. (Pausing here, this is in terms a reference to “under” the scheme as opposed to under the NDIS Act. We see this as a significant textual indicator that the “duties, functions or powers” referred to in s 67G are those directly imposed or conferred by the NDIS Act, particularly where the scheme is defined by reference to the “arrangements” set out in identified chapters of the NDIS Act (see below).) Section 8 recognises that a person with a disability may receive supports or services from registered NDIS providers but also may receive supports and services from provider who are not registered.
Section 9 (Definitions) contains definitions of terms used in the NDIS Act, including definitions of “Agency officer”, “Commission officer” and “participant”. The term “National Disability Insurance Scheme”, as noted above, is defined as meaning “the arrangements set out in Chapters 2 and 3”. Chapter 2 of the NDIS Act deals with assistance (including provision of general supports and funding) to people with disability who are not participants; chapter 3 deals with the provision of general supports, including funding, to or in relation to participants.
“NDIS amount” is defined as meaning an amount paid “under” the NDIS in respect of supports (other than general supports) funded under a participant’s plan.
The term NDIS provider is defined as meaning:
(a) a person (other than the Agency) who receives:
(i) funding under the arrangements set out in Chapter 2; or
(ii) NDIS amounts (other than as a participant); or
(b) a person or entity:
(i) who provides supports or services to people with disability other than under the National Disability Insurance Scheme; and
(ii) who is prescribed by the National Disability Insurance Scheme rules for the purposes of this subparagraph.
The applicant notes that this defines an NDIS provider by reference (in (a)) to the receipt of funding, not to the duties, powers or functions performed or exercised by that person. We note here that the definition of NDIS provider again is tied to the scheme, i.e., the “arrangements” set out in chapters 2 and 3 of the NDIS Act.
Section 9 also includes definitions of “protected Agency information” and “protected Commission information”.
A “registered NDIS provider” is defined as a person or entity who is registered under s 73E; and, correspondingly, “registered” means registered under s 73E. One significance of registration is that certain supports (namely, those for which funding is managed by the Agency) can only be provided by registered NDIS providers. There is no prohibition on supports or services being provided by unregistered NDIS providers (other than the supports for which funding is managed by the Agency). This is relevant to note because, although the present application involves a registered provider (and the declaration made by the primary judge was in terms confined to the position of registered providers), as emphasised by Senior Counsel for the respondent at AT 31.15, when construing s 67G one must do so in the context of its potential operation to NDIS providers other than registered NDIS providers as well as to registered NDIS providers (as Senior Counsel for the respondent accepts).
Chapter 3 of the NDIS Act headed “participants and their plans” sets out in Part 1 the steps to be taken to become a participant (s 18ff). Part 2 deals with participants’ plans (s 31 setting out the principles relating to plans, s 32 providing that the CEO must facilitate the preparation of the participant’s plan; ss 32D and 33 setting out the matters that must be included in a participant’s plan (the difference being between old framework plans and new framework plans – the respondent stating that the latter is the relevant provision for the purpose of the respondent’s plan; see AT 34.43; cf AT 35.10)). Subsection 33(6) provides that, to the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only be a registered NDIS provider.
Division 3 of Part 2 of Chapter 3 deals with managing the funding for supports “under” the participant’s plans (reference here being made by the respondent to s 42 which sets out the meaning of “managing the funding for supports”). Section 45 deals with payment of amounts payable under the NDIS in general and s 45A with payment of amounts where there is “need for a claim”. Section 45A provides that an amount is not payable under the NDIS in respect of the acquisition or provision of a support service unless the CEO is satisfied that a claim for payment has been made in accordance with sub-ss (2), (3) and (5).
Those subsections specify, relevantly, that: a claim may be made only by the persons there specified; a claim must be in the approved form (if any) and include any information and be accompanied by documents required by the CEO; and the period within which a claim must be made. (Section 45A is relied upon by the respondent in the present case as a specific duty imposed on the registered NDIS provider under the NDIA Act because of which the respondent says LBW held each of the documents produced under compulsion – see below.)
67G Protection of certain documents etc. from production to court etc.
A person must not, except for the purposes of this Act or the Royal Commissions Act 1902, be required:
(a) to produce any document in his or her possession because of the performance or exercise of his or her duties, functions or powers under this Act; or
(b) to disclose any matter or thing of which he or she had notice because of the performance or exercise of such duties, functions or powers;
to a court, tribunal, authority or person that has power to require the production of documents or the answering of questions.
The respondent describes this as a “gap-filling” provision. We refer in due course to the circumstances in which s 67G was inserted into the NDIS Act in 2017, which in our view tend against such a description.
Part 3A of Chapter 4 deals with NDIS providers. Division 2 applies only in relation to registered NDIS providers.
As to the requirements for and process of registration, s 73B provides:
73B Requirement to be a registered NDIS provider
(1) The National Disability Insurance Scheme rules may require that specified classes of supports provided under participants’ plans are to be provided only by persons who are registered under section 73E to provide those classes of supports.
Note: See also subsections 32D(7) and 33(6), which provide that, if the funding for supports under a plan is managed by the Agency, supports are to be provided only by a registered NDIS provider.
(2) A person must not provide a support under a participant’s plan if:
(a) the National Disability Insurance Scheme rules require the person to be registered to provide the support under the plan; and
(b) the person is not so registered.
Civil penalty: 250 penalty units.
and s 73C provides:
73C Application to be a registered NDIS provider
(1) A person may apply to the Commissioner to be a registered NDIS provider in relation to one or more of the following:
(a) the provision of supports or services under the arrangements set out in Chapter 2;
(b) managing the funding for supports under participants’ plans;
(c) the provision of supports under participants’ plans.
Note: An unincorporated association or a partnership may also apply for registration under this section (see section 203).
(2) A person may also apply to the Commissioner to be a registered NDIS provider in relation to the provision of services or supports to people with disability other than under the National Disability Insurance Scheme if the person is included in a class of persons prescribed for the purposes of subparagraph (b)(ii) of the definition of NDIS provider.
(3) The application must:
(a) be in writing; and
(b) be in a form (if any) approved in writing by the Commissioner; and
(c) include any information, and be accompanied by any documents, required by the Commissioner.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(4) The Commissioner may, by written notice, require an applicant for registration to give the Commissioner such further information or documents in relation to the application as the Commissioner reasonably requires.
Note: The Commissioner is not required to make a decision on the application if this subsection is not complied with (see section 197B).
(5) A notice under subsection (4) may specify a period, which must not be less than 14 days, within which the information or documents must be given.
Withdrawal of application
(6) An applicant for registration may at any time, by writing to the Commissioner, withdraw the application.
(7) A person’s application is taken to have been withdrawn if the person’s registration is revoked under section 73P while that application is pending.
(2) A person may be registered in respect of one or more of the following:
(a) managing the funding of supports under participants’ plans;
(b) providing specified classes of supports under participants’ plans;
(c) providing specified classes of supports or services under the arrangements set out in Chapter 2;
(d) providing specified classes of supports or services to people with disability other than under the National Disability Insurance Scheme.
73F Registration is subject to conditions
(1) The registration of a person as a registered NDIS provider is subject to the following conditions:
(a) the conditions set out in subsection (2);
(b) the conditions (if any) imposed by the Commissioner under section 73G;
(c) the conditions (if any) determined by the National Disability Insurance Scheme rules under section 73H.
(2) The registration of a person as a registered NDIS provider is subject to the following conditions:
(a) a condition that the person comply with all applicable requirements imposed by a law of the Commonwealth or a law of the State or Territory in which the person or entity operates as a registered NDIS provider;
(b) a condition that the person comply with all applicable requirements of the NDIS Code of Conduct;
(c) a condition that the person comply with all applicable standards and other requirements of the NDIS Practice Standards;
(d) a condition that the person comply with all applicable requirements relating to record keeping prescribed by the National Disability Insurance Scheme rules for the purposes of section 73Q;
(e) a condition that the person implement and maintain the applicable complaints management and resolution system in accordance with section 73W;
(f) a condition that the person comply with all applicable requirements relating to complaints prescribed by the National Disability Insurance Scheme rules for the purposes of section 73X;
(g) a condition that the person implement and maintain the applicable incident management system in accordance with section 73Y;
(h) a condition that the person comply with all applicable requirements relating to reportable incidents prescribed by the National Disability Insurance Scheme rules for the purposes of section 73Z;
(i) a condition that the person give to the Commissioner, on request, information specified in the request within the period specified in the request (which must not be less than 14 days).
73G Conditions specified in certificate of registration
(1) The Commissioner may impose conditions to which the registration of a person as a registered NDIS provider is subject.
(2) A condition may be imposed at the time of registration, or at a later time.
Note: Conditions imposed under this section may also be varied or revoked (see section 73L).
(3) The conditions may include, but are not limited to, conditions relating to the following matters:
(a) the types of quality audits the provider must undergo;
(b) the timing of such quality audits;
(c) requirements relating to supports or services for which the provider is registered to provide, including circumstances in which supports or services for which the provider is registered can or cannot be provided.
Section 73H allows further conditions to be imposed through the NDIS Rules (of which a number are here relied upon by the respondent, as explained in due course).
Section 73J (the third of the statutory provisions specified in the respondent’s notice of contention) provides that it is an offence if a person is a registered NDIS provider and breaches a condition to which the registration is subject. Section 73J provides:
73J Registered NDIS providers must comply with conditions of registration
A person contravenes this section if the person:
(a) is a registered NDIS provider; and
(b) breaches a condition to which the registration of the person is subject.
Civil penalty: 250 penalty units.
Sections 73N and 73P provide for the suspension and revocation of the registration of a registered NDIS provider if, relevantly, the Commissioner of the NDIS Quality and Safeguards Commission (the Commissioner) reasonably believes that a person has contravened, is contravening, or is proposing to contravene, the NDIS Act.
Registered NDIS providers are subject to s 73Q, which provides:
73Q Record keeping by registered NDIS providers
A registered NDIS provider must keep records of the kind, for the period and in the form prescribed by the National Disability Insurance Scheme rules.
Note: Compliance with this section is a condition of registration (see paragraph 73F(2)(d)), breach of which is a civil penalty provision (see section 73J).
While the applicant accepts that this section imposes an obligation to keep certain records, the applicant argues that this is imposing an obligation that a provider of supports and services is able to do otherwise than “under” the NDIS Act (the applicant’s argument being that, for the purposes of s 67G, a duty, power or function must be something “enabled” by the NDIS Act not merely regulated, or dictated to, by the NDIS Act) (see AT 26.4). The applicant accepts that if “duty” means an obligation that arises from or is imposed by the NDIS Act then s 73Q would be engaged (see AT 25.30) but argues that while the source of the obligation to keep records is the NDIS Act, the lack of coherence and other indicators that Parliament did not expect registered providers or others to be covered by s 67G calls for an alternative construction (see AT 27.5). Pausing here, we note that the respondent in oral submissions accepted that he could not point to specific obligations in the NDIS Act requiring the particular records in question to be kept.
The applicant points out that non-registered NDIS providers may also be subject to record-keeping obligations, of different scope, under s 46(3), which provides:
The National Disability Insurance Scheme rules may make provision for and in relation to the retention of records by NDIS providers that receive NDIS amounts on behalf of participants, including requiring that prescribed records be retained for a prescribed period.
Division 3 of Part 3A of Chapter 4 then deals with “Quality assurance” and is not restricted to registered NDIS providers.
Section 73T provides:
73T NDIS Practice Standards
(1) The National Disability Insurance Scheme rules may make provision for or in relation to standards concerning the quality of supports or services to be provided by registered NDIS providers.
Note: Non‑compliance with the NDIS Practice Standards by registered NDIS providers constitutes a breach of condition of registration (see paragraph 73F(2)(c) and section 73J).
(2) Rules made for the purposes of subsection (1) are to be known as the NDIS Practice Standards.
(3) Without limiting subsection (1), the NDIS Practice Standards may deal with the following:
(a) standards to be complied with to become a registered NDIS provider;
(b) standards to be complied with to remain a registered NDIS provider;
(c) matters relating to assessing compliance with the standards;
(d) matters relating to the screening of workers employed or otherwise engaged by registered NDIS providers or of members of the key personnel of registered NDIS providers.
Section 73V then provides for approved quality auditors.
Division 4 of Part 3A, Chapter 4, is headed “NDIS Code of Conduct”. Section 73V provides that NDIS rules may make provision for a code of conduct that applies to either or both of NDIS providers (whether registered or not) and persons employed or otherwise engaged by NDIS providers or members of the key personnel of NDIS providers. It is an offence to contravene the NDIS Code of Conduct where applicable:
73V NDIS Code of Conduct
(1) The National Disability Insurance Scheme rules may make provision for or in relation to a code of conduct that applies to either or both of the following:
(a) NDIS providers;
(b) persons employed or otherwise engaged by NDIS providers or members of the key personnel of NDIS providers.
(2) Rules made for the purposes of subsection (1) are to be known as the NDIS Code of Conduct.
(3) A person contravenes this section if the person:
(a) is subject to a requirement under the NDIS Code of Conduct; and
(b) fails to comply with the requirement.
Civil penalty: 250 penalty units.
The applicant points to s 73V as highlighting the difficulty with s 67G in its application to corporate NDIS providers on the respondent’s interpretation. The applicant points out that s 67G does not operate where a person has in his or her possession a document only by exercise of a duty, power or function by someone other than that person; and submits that the respondent’s construction involves an incoherence between the position of corporate providers (or those who provide services through, say, a partnership structure) and others.
Division 5, headed “Complaints management and resolution” contains s 73W on which the respondent’s notice of contention next relies. Section 73W provides:
73W Complaints management and resolution system—registered NDIS providers
A registered NDIS provider must implement and maintain a complaints management and resolution system that:
(a) is appropriate for the size of the provider and for the classes of supports or services provided by the provider; and
(aa) acknowledges the role of advocates (including independent advocates) and other representatives of persons with disability; and
(ab) provides for cooperation with, and facilitates arrangements for, advocates (including independent advocates) and other representatives of persons with disability who are affected by the complaints process and who wish to be independently supported in that process by an advocate or other representative; and
(b) complies with the requirements (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note: Non‑compliance with this section constitutes a breach of condition of registration (see paragraph 73F(2)(e) and section 73J).
The applicant notes that this is not limited to complaints in relation to funded services or scheme participants.
Division 6, headed “Incident management – registered NDIS providers”, includes ss 73Y and 73Z:
73Y Incident management system
A registered NDIS provider must implement and maintain an incident management system that:
(a) is appropriate for the size of the provider and for the classes of supports or services provided by the provider; and
(b) complies with the requirements (if any) prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.
Note: Non‑compliance with this section constitutes a breach of condition of registration (see paragraph 73F(2)(g) and section 73J).
73Z Reportable incidents
(1) The National Disability Insurance Scheme rules must prescribe arrangements relating to registered NDIS providers notifying and managing reportable incidents that occur, or are alleged to have occurred, in connection with the provision of supports or services by registered NDIS providers or in other circumstances prescribed by the National Disability Insurance Scheme rules.
(2) Without limiting subsection (1), the National Disability Insurance Scheme rules may deal with the following matters:
(a) the manner and period within which reportable incidents must be reported to the Commission;
(b) action that must be taken in relation to reportable incidents;
(c) authorising the provision of information relating to reportable incidents to the Minister, the Agency or other specified bodies;
(d) the matters in which the Commissioner may authorise an inquiry in relation to a reportable incident, on his or her own initiative.
(3) Without limiting paragraph (2)(b), action may include:
(aa) requiring a registered NDIS provider to provide people with disability with information regarding the use of an advocate (including an independent advocate) in relation to an investigation into the reportable incident; and
(a) requiring a registered NDIS provider to arrange for, and cover the cost of, an independent investigation into the reportable incident within a specified period; and
(b) providing a copy of any report of the independent investigation to the Commissioner.
(4) Reportable incident means:
(a) the death of a person with disability; or
(b) serious injury to a person with disability; or
(c) abuse or neglect of a person with disability; or
(d) unlawful sexual or physical contact with, or assault of, a person with disability; or
(e) sexual misconduct committed against, or in the presence of, a person with disability, including grooming of the person for sexual activity; or
(f) the use of a restrictive practice in relation to a person with disability, other than where the use is in accordance with an authorisation (however described) of a State or Territory in relation to the person.
(5) Despite subsection (4), the National Disability Insurance Scheme rules may provide as follows:
(a) that a specified act, omission or event is a reportable incident;
(b) that a specified act, omission or event is not a reportable incident.
The respondent’s notice of contention also specifies s 73Y of the NDIS Act as a duty which engages s 67G in this case.
Division 8, headed “Compliance and enforcement” deals with monitoring powers, providing that this Part (Part 3A) is subject to monitoring under Part 2 of the Regulatory Powers Act. Section 73ZE provides:
73ZE Monitoring powers
Provisions subject to monitoring
(1) This Part is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the provisions of this Part have been complied with. It includes powers of entry and inspection.
Information subject to monitoring
(2) Information given in compliance or purported compliance with a provision of this Part is subject to monitoring under Part 2 of the Regulatory Powers Act.
Note: Part 2 of the Regulatory Powers Act creates a framework for monitoring whether the information is correct. It includes powers of entry and inspection.
Authorised applicant, authorised person, issuing officer, relevant chief executive and relevant court
(3) For the purposes of Part 2 of the Regulatory Powers Act as it applies in relation to this Part:
(a) an inspector is an authorised applicant; and
(b) an inspector is an authorised person; and
(c) a magistrate is an issuing officer; and
(d) the Commissioner is the relevant chief executive; and
(e) each of the following is a relevant court:
(i) the Federal Court;
(ii) the Federal Circuit and Family Court of Australia (Division 2);
(iii) a court of a State or Territory that has jurisdiction in relation to matters arising under this Act.
Person assisting
(4) An authorised person may be assisted by other persons in exercising powers or performing functions or duties under Part 2 of the Regulatory Powers Act in relation to this Part.
73ZR Appointment of inspectors and investigators
(1) The Commissioner may, in writing, appoint a person who is one of the following as an inspector, an investigator, or both, for the purposes of this Part:
(a) a member of the staff of the Commission under section 181U;
(b) a person assisting the Commissioner under section 181W;
(c) a person performing services for the Commonwealth under a contract with the Commonwealth.
(2) The Commissioner must not appoint a person mentioned in subsection (1) unless the Commissioner is satisfied that:
(a) the person has suitable training or experience to properly exercise the powers for which the person will be authorised to use; and
(b) the person is otherwise an appropriate person to be appointed as an inspector, investigator or both (as the case requires).
(3) A person appointed under this section must, in exercising powers as such, comply with any directions of the Commissioner.
(4) If a direction is given under subsection (3) in writing, the direction is not a legislative instrument.
As noted earlier, s 67G of the NDIS Act was not inserted into the NDIS Act until 2017. The predecessor section to s 67G was s 65, which was contained in Part 2 of Ch 4 of the NDIS Act as initially enacted. Section 65 was in almost identical terms but did not include a carve-out referring to the Royal Commissions Act.
The Explanatory Memorandum concerning the NDIS Act as initially enacted, stated that s 60 (“Protection of information held by the Agency etc.”) was being enacted because “[a] large amount of personal information will likely be acquired by the Agency through the operation of the scheme, and the protection of that information and a person’s right to privacy is considered paramount” (Explanatory Memorandum, National Disability Insurance Scheme Bill 2013, p 26). Further, it was noted that s 65:
...provides that an officer [though as enacted s 65 used the word “person”] must not, except for the purposes of this Act, be required to produce any document in their possession or disclose any matter or thing they had or knew because of their performance, exercise of their duties, functions or powers under the Act to a court, tribunal, authority or person who has the power to require the production of documents or the answering of questions.
Disability services delivered through other systems, such as health, education and justice, will continue to be covered by the quality and safeguarding arrangements for those systems. Universal complaints and redress mechanisms, including police, fair trading bodies, professional and industry bodies, consumer protection laws and other regulatory and complaints systems will continue to be available to both NDIS participants and people with disability outside the NDIS.
Reliance is placed by the applicant on the statement in the above passage as to the continued availability of universal complaints and redress mechanisms.
The Amending Act established the Commission and the Commissioner. The Amending Act also effected a restructure of Part 2 of Chapter 4. The provisions contained in Part 2 of the NDIS Act as initially enacted (ss 60-67) were put into Division 1, headed “Information held by the Agency”, and were the subject of amendments to clarify that they applied only to the Agency. A new Division 2 was introduced, headed “Information held by the Commission”, and contained provisions for the protection of information provided to the newly-established Commission. Section 65 was repealed and re-enacted as s 67G as part of the newly-established Division 3, headed “Information generally”.
At page 13, the Amending Act Explanatory Memorandum said of the then proposed (now) s 67G:
This is an important protection and discretion which enables people to provide information to the Commission without fear of it being used against them in proceedings which do not relate to the purposes of the Act. The new section does not prevent a subpoena being issued to any person who provided the information to the Commission.
The applicant places emphasis on the reference here to “protection and discretion”. The applicant submits that, unlike ss 66 and 67E, s 67G does not in terms confer a discretion. The applicant says that this is because s 67G is not framed as a secrecy provision that prevents disclosure (cf the offence provisions in ss 62 and 67B); rather, it preserves a discretion in the sense that s 67G provides an immunity from being “required” to produce or disclose. The applicant submits that such an immunity (untethered to a secrecy provision and therefore preserving a “discretion” to disclose) is readily understandable in relation to Commonwealth officers and other persons performing public functions under the NDIS Act (such as those referred to at [75] above) but argues that it is difficult to understand in relation to private service providers who are regulated under the NDIS Act. (The respondent cavils with this.)
The Amending Act also substantially amended the system of registration for providers. Prior to 2017, the registration of providers was dealt with in Part 3 of Ch 4 (ss 69-73). At that time, the only section concerning the obligations of registered providers was s 73, which allowed the NDIS Scheme rules to make provision in relation to a range of matters, including compliance with prescribed safeguards, and the consequences of a failure to comply with the NDIS Act. Part 3A moved the registration function from the Agency to the newly-established Commission, and introduced new processes for registration and quality assurance.
As already noted above, the applicant’s contention is that, on its proper construction, s 67G of the NDIS Act captures only documents which are held because of the exercise or performance of a power, function or duty the carrying out of which is enabled (or enabled and mandated) by the NDIS Act.
In this regard, the applicant contends that the obligations imposed on NDIS providers (whether registered or unregistered) are in the nature of the regulation of private entities; regulating or placing conditions on the provision of particular services but not conferring statutory powers on registered providers. The applicant argues that the expectation is that NDIS providers will be private entities (referring by way of example to the object in s 4(15) of the NDIS Act – see above); and that there is a qualitative difference between the regulation under the NDIS Act of the activities of NDIS providers and the imposition or conferral of public duties, functions or powers conferred on officers and other persons performing a public function under the NDIS Act (such as the persons referred to at [75] above).
The applicant’s contention is that the qualitative difference between the exercise of public or administrative functions on the one hand and the public funding of persons engaged in private activities on the other is best recognised by holding that the former category involves duties, powers or functions which are enabled, or enabled and mandated, under the NDIS Act. The applicant submits that, where that is the case, possession of the documents may be seen to “derive from the enactment” (referring by way of analogy to the approach taken in Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 (Tang) at [89]; Fuller v Lawrence (2024) 99 ALJR 103; [2024] HCA 45 (Fuller) at [13], [16], to which we refer in due course).
The applicant thus contends that s 67G is engaged by a duty, power or function which enables a person to do something which the person could not otherwise do and which causes the person to possess the protected document or acquire the protected information.
By way of consideration of the text of s 67G, the applicant points to the potentially broad import of the words “power”, “function” and “duty”, noting that those are words capable of different interpretations in different statutory contexts (referring to Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1 at 6; [1952] HCA 32 (per Dixon CJ); Jordan v Second Commissioner of Taxation [2019] FCA 1602 at [56]ff per White J).
The applicant submits that the language of “power” and “function” under the NDIS Act is not apt to refer to an activity that a person can do independently of the NDIS Act. In this sense, the applicant says that it reflects the distinction that an entity created by statute, or the functions of an office created by statute, can only be exercised in the manner contemplated by that statute or by some other statute; whereas private individuals do not derive their powers to act from the NDIS Act and nor do corporations.
In oral submissions, the respondent put his case in two ways: first, as reflected in the draft notice of contention, the more narrow contention that each of the confidential documents produced by LBW in answer to the s 138 order was created by LBW and therefore in its possession because of the performance by LBW of record-keeping duties under the NDIS Act; and, second, the broader alternative contention that, if any of the LBW documents is found not to have been created in the performance of a statutory duty, they were created in the performance of LBW’s ordinary functions and those functions were functions “under” the NDIS Act.
On the principal way in which the argument is put (the issue raised by the notice of contention), the respondent says it is not necessary to enter into debate as to the meaning of “under”. On the alternative way in which the argument is put, the respondent accepts that, in a sense LBW, was not exercising powers conferred directly or immediately on it by the NDIS Act but submits that the purpose and intent of s 67G requires a broader construction of the word “under”, extending beyond functions that are conferred directly or immediately by the statute.
The respondent places much emphasis on the legislative policy of the NDIS scheme being to “harness” or “enlist” the private sector to provide supports and services (an insurance-based approach) and the confidential nature of the relationship between providers and participants. As to the latter, the respondent argues that the content of s 67G includes a concern with privacy, pointing to the structure of the NDIS Act, in which s 67G (dealing with information generally) appears after divisions dealing specifically with information held by the Agency and formation held by the Commission. (The applicant cautions against the making of a priori assumptions about the scheme setting up particularly “close” or “extraordinary” relationships, and then interpreting the legislation by reference to those assumptions.)
The respondent submits that s 67G is intended to extend beyond the Agency and the Commission and that this is reinforced by the broad language of s 67G which applies to “a person”. The respondent submits that, in a scheme where providers will hold information about participants of a kind that the Agency or Commission might hold, the privacy provisions are being dealt with by s 67G in relation to those providers; and argues that duties “under” the NDIS Act must encompass duties imposed not just on officials but others who are subject to the NDIS Act.
The respondent cavils with the proposition that the NDIS Act simply regulates private sector entities exercising general law liberties; rather, the respondent contends that the scheme is substantially to create that private sector and that any general law capacity to provide disability services is, in substantial respects, extinguished by the NDIS Act and replaced with a conditional permission to do so subject to the scheme for registration. (The applicant rejects the suggestion that the general law capacity to provide disability services has been extinguished by the NDIS Act and replaced with a conditional permission to do so.)
As noted above, in oral submissions, Senior Counsel for the respondent made clear that the primary way in which he puts the respondent’s case on the construction argument is that contended for in the draft notice of contention, namely that the documents held and produced by LBW in compliance with the s 138 orders are documents held or in the possession of the registered service provider (LBW) in the performance or exercise of its duties under the NDIS Act. Those statutory duties, as identified in the notice of contention, are (as indicated earlier) those said to be imposed by: s 45A (as to the making of payment claims); s 73F (which provides that registration is subject to conditions); s 73W (which requires registered NDIS providers to implement and maintain a complaints management and resolution system); s 73Y (which requires registered NDIS providers to implement and maintain an incident management system); and s 73Z (which provides for NDIS rules to prescribe arrangements relating to registered NDIS providers in relation to reportable incidents).
It is convenient therefore to deal first with that, more narrow contention, and to do so by reference to the documents contained in the confidential exhibit. For obvious reasons, they will be referred to without revealing the contents thereof. Having reviewed those documents, we do not accept that those documents can be said to be held or in the possession of LBW in the performance or exercise of “duties” under the NDIS Act.
Document 1 appears to be a completed Agency template form headed “Support coordination – implementation report” in relation to the respondent. It is dated 13 June 2024. The respondent says that LBW would not have completed the form if it were not a registered provider. That much may readily be accepted but it says nothing as to whether the document is held or in LBW’s possession because of the performance or exercise by it of a duty under the NDIS Act.
The respondent, in its Aide-Memoire on the Notice of Contention, identifies the following statutory “duties” as those relied upon by him to engage s 67G of the NDIS Act in respect of this document: first, s 45A of the NDIS Act (payment claims) and, second, s 73T of the NDIS Act (by reference to Schedule 1, cl 19(2) of the Registration/Practice Standards Rules).
Document 2 is a Support Plan dated 29 July 2024 on LBW letterhead.
The respondent again identifies s 45A of the NDIS Act (payment claims) and s 73T of the NDIS Act (by reference to the NDIS Provider Registration and Practice Standards Rules, Sch 1, cl 19(2)) as the statutory duties that engage s 67G of the NDIS Act in respect of this document.
The applicant says that the preparation of a support plan is not referable to any power, function or duty under the NDIS Act, the NDIS Rules, or LBW’s conditions of registration. Further, the applicant says that the existence of this type of document (which he says may well be prepared irrespective of whether a person is a NDIS participant whose funding is managed through the NDIA) illustrates the difficulty with the respondent’s focus on the question of factual causation.
Document 3 is a document on LBW letterhead with the heading “ABC Data Sheet” and dated 17 October 2024. Document 4 is a similar document but dated 21 October 2024. The documents appear to be based on a template which contains headings including “Behaviours Concern” (under which there are a succession of boxes to be selected by the person completing the form), Reasons and Report.
In relation to both of those forms, the respondent identifies s 45A of the NDIS Act (payment claims) and s 73Y of the NDIS Act (by reference to the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) (NDIS Incident Management Rules)), s 12(2), (4) as the statutory “duties engaging s 67G of the NDIS Act.
The applicant says that these two reports are not records required to be kept by operation of the conditions of LBW’s registration (s 73F(2)(g)), the incident management system set up under s 73Y, or the NDIS Incident Management Rules, noting (correctly, having regard to our review of the content of these reports) that these reports do not describe a reportable incident within the meaning of s 73Z(4) or the NDIS Rules. The applicant also says that a prudent service provider could be expected to prepare and maintain documents of this kind regardless of the obligations under the NDIS Act.
These documents contain a variety of case and progress notes.
Document 5 comprises Support Worker Progress Notes dated 25 September and 17 October 2024.
The respondent identifies s 45A of the NDIS Act (payment claims) (noting that these include time records) and s 73Y of the NDIS Act (by reference to the NDIS Incident Management Rules), s 12(2), (4) as engaging s 67G of the NDIS Act in respect of this document.
Document 6 is a case note dated 29 October 2024.
The respondent identifies s 45A of the NDIS Act (payment claims), again noting the inclusion of time records, s 73T of the NDIS Act (by reference to the NDIS Provider Registration and Practice Standards Rules, Sched 1, cl 10) and s 73W of the NDIS Act (by reference to the National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 (Cth) (NDIS Complaints Management and Resolution Rules) s 10(2)-(3)) as here engaging s 67G of the NDIS Act.
Document 7 comprises case notes from dates ranging from 30 April 2025 to 22 May 2025.
The respondent again identifies s 45A of the NDIS Act (payment claims), again noting the inclusion of time records, s 73T of the NDIS Act (by reference to the NDIS Provider Registration and Practice Standards Rules, Sched 1, cl 10) and s 73W of the NDIS Act (by reference to the NDIS Complaints Management and Resolution Rules s 10(2)-(3)) as engaging s 67G of the NDIS Act.
Document 8 contains notes headed “Incident notes” with dates ranging from 24 January 2025 to 19 February 2025.
The respondent identifies s 45A of the NDIS Act (payment claims), again noting the inclusion of time records, s 73Y of the NDIS Act (by reference to the NDIS Incident Management Rules), s 12(2) and (4) as engaging s 67G of the NDIS Act.
The applicant says that each of the above documents comprises case or progress notes completed by employees of LBW. The applicant says that these are not records required to be kept by operation of the conditions of LBW’s registration (s 73F(2)(g)), the incident management system set up under s 73Y, or the Incident Management Rules, noting correctly that the notes do not describe a reportable incident within the meaning of s 73Z(4) or the Rules.
In particular, the applicant says that the use of the word “incident” does not necessarily indicate that a note or record refers to a reportable incident, nor can it be inferred that the note or record was created or retained due to the requirements of s 73Y; and the applicant says that a prudent service provider could be expected to prepare and maintain documents of this kind regardless of the obligations under the NDIS Act.
Addressing these documents as a whole, insofar as the respondent relies upon s 45A as imposing a duty because of which the above documents were in the possession of LBW, we consider that the suggestion that there is a “duty” under the NDIS Act to make a claim for payment is artificial. There is no “duty” to make a claim for payment. Service providers might well choose to provide support services to persons with disabilities on a voluntary basis (and one would expect many charities to do so, for example). Section 45A simply means that if a “payment claim” is to be made it must be accompanied by certain documents.
77 The crux of the issue in each case is whether the enactment has played a relevant part in affecting or effecting rights or obligations. A grant of authority to do that which under the general law a person has authority to do is not regarded as sufficient.
11 The joint reasons of Gummow, Callinan and Heydon JJ reviewed the existing case law on the meaning of the expression “a decision of an administrative character made … under an enactment” in the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the AD(JR) Act”), upon which the Review Act is substantially based. The plurality described the expression “made … under an enactment” as involving a question of “characterisation of the particular outcome” which founds an application for review under the statute (in the context of the Review Act, an application for a statutory order of review).
12 The plurality rejected a construction of s 4(a) turning upon the identification of the “immediate” or “proximate” source of power to make the relevant decision as deflecting attention from the interpretation of the Review Act (and the AD(JR) Act) in the light of legislative subject, scope and purpose. They also rejected a construction turning upon the “true lawful source” of the power to make the decision. Their Honours identified cases in which a decision, required or authorised by an enactment, is nevertheless not “made under” that enactment. These included where the decision derived its capacity to bind from contract or some other private law source; where a decision to vote at a creditors meeting was not given statutory effect by the sections relied upon and only affected legal rights because of the cumulative effect of votes later cast; and where the power to make the decision was not sourced in a relevant statute, even though the decision, once made, had a critical effect for the operation of that statute.
13 The plurality concluded that the determination of whether a decision is “made … under an enactment” involves the following two criteria: first, the decision must be expressly or impliedly required or authorised by the enactment; and, secondly, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment.
14 As to the first criterion, the plurality found that the decisions were authorised by the University Act, as the decision-making committees depended for their existence and powers upon the delegation by the council of the university under provisions of the University Act. However, as to the second criterion: the decisions did not affect legal rights and obligations; the decisions had no impact upon matters to which the University Act gave legal force and effect; and Ms Tang enjoyed no relevant legal rights and the university had no obligations under the University Act with respect to the course of action the latter adopted towards the former. There were no legal rights and obligations under private law which were capable of being affected by the relevant decisions. A consensual relationship had been brought to an end, but no decision was made by the university “under” the University Act.
15 The criteria stated by the plurality in Tang for determining whether a decision of an administrative character is “made … under an enactment” have been applied by numerous Australian courts in construing statutory judicial review regimes. Neither party to this appeal sought to challenge the two “Tang criteria” as necessary for a finding that the Direction Decision was made under an enactment — namely, the DPSO Act — within the meaning of the Review Act.
16 The second Tang criterion, that the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense the decision must derive from the enactment, coheres with the observation of Mason CJ (with whom Brennan J agreed and Deane J agreed on this point) in Australian Broadcasting Tribunal v Bond (“Bond”) that a decision “on a matter of substance for which the statute provided as an essential preliminary to the making of the ultimate decision” was reviewable under the AD(JR) Act. It also coheres with the observation of Toohey and Gaudron JJ in Bond that, if an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power (in that case a decision to suspend or cancel a commercial broadcasting licence), a finding that satisfies the condition precedent is “readily characterized as a decision ‘under an enactment’”.
The issue in Fuller was whether a direction given by a corrective services officer to a prisoner under s 16(1)(db) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) was a decision “made … under an enactment” within the meaning of the Judicial Review Act 1991 (Qld), such that the recipient was entitled to a statement of reasons under s 33 of the latter Act. The parties accepted that s 16(1)(db) of the DPSO Act expressly or impliedly authorised the direction to be given. The question was whether the second Tang criterion was satisfied. The High Court held that it was, emphasising that the source of the obligation to comply with the direction was the DPSO Act. The fact the direction depended for its efficacy on the making of a supervision order by a court did not alter this conclusion (see at [20]-[24]).
This Court has recently emphasised the caution to be used in relying on the reasoning in Tang and other cases decided in different statutory contexts (see Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172 (Uber), which considered the use of “under” in s 32(1)(b) of the Payroll Tax Act 2007 (NSW), which refers to “a contract under which a person … has supplied to [the person] … services”, at [83]-[88]). To similar effect is the statement by the Queensland Court of Appeal in Stone v Guli [2020] QCA 288 at [62] per Davis J (McMurdo and Mullins JJA agreeing).
In King v Director of Housing (2013) 23 Tas R 353; [2013] TASFC 9 (which was cited with apparent approval by the High Court in Fuller at [15] fn 24), the question was whether decisions taken by the State Director of Housing, pursuant to the Homes Act 1935 (Tas) to give a tenant notice that her lease would not be extended or renewed and that she was required to vacate the rented premises were made under an enactment for the purposes of the Judicial Review Act 2000 (Tas). Porter J (Tennent and Wood JJ agreeing) held that they were not, reasoning as follows (emphasis as per original):
63 I have set all of this out to show that it is abundantly clear that for a decision to be one under an enactment, it must be more than the exercise of a public power which affects legal rights in some way. The decision must be more than one expressly or impliedly authorised by the statute. The meaning of the second criterion of the plurality in Tang is plain. To use the description given in Aronson and Groves, Judicial Review of Administrative Action (5th ed, 2013), at 93 [2.550], “ … the decision must make a present or contingent difference in the realm of legal rights or obligations, and it must do this because of the force it derives from the relevant enactment”.
64 In my view, that is where the appellant fails. Whilst the authority for the Director to act in the way he did comes from the [Homes Act 1935], the force or effect of the decisions does not. The decisions derived their force from the contractual relationship between the parties, as that relationship is governed by the [Residential Tenancy Act 1997]. The lease agreement provided for an expiry date. A decision not to extend or renew the lease beyond that expiry date has force because of the ordinary relationship between parties in that position. The service of the notice to vacate is to be treated in the same way. The decision derives its force from the relationship as governed by the [Residential Tenancy Act 1997]. As the primary judge said, the decision to serve the notice to vacate was a decision that any landlord could make, rather than a decision deriving from the [Homes Act 1935]. That the [Residential Tenancy Act 1997] governed the circumstances in which the Director had to deal with the expiry of the lease, and the issue of a notice to vacate, is irrelevant. The decisions operate because of the general law.
Wary of the need for caution when seeking to derive guidance from cases considering different legislative schemes, the consistent thread of these decisions is that the proper interpretation of the word “under” must give weight to legislative purpose and context, and that the question whether a power, duty or function is properly characterised as falling “under” the NDIS Act may require that attention is given to whether the relevant legislation itself provides the authority, force or justification for its exercise or occurrence. In this way, our construction of s 67G is consistent with the approach taken in the cases discussed above.
As to the purpose of the NDIS Act, and s 67G within that Act, the objects of the NDIS Act have been set out above. They can comfortably be achieved on the applicant’s construction of s 67G. We do not accept that the “relationship” created between the NDIS provider and participant is extraordinary; nor is it one that mandates the respondent’s construction of s 67G. Rather, some of the purposes of the NDIS Act may well be undermined if there is a blanket embargo on an NDIS provider being compulsorily required to produce documents to a court or authority, including under s 138 of the MCHIFP Act.
It would be a very surprising outcome, as the applicant submits, if law enforcement agencies or the like were unable to compel production of NDIS records (or could only obtain them through a cumbersome process of requesting them from the Commissioner – and hence be left to the Commissioner’s discretion in that regard); and would potentially operate to the contrary of the legislative objects of the NDIS Act. Nor does it make sense for there to be no restriction on the voluntary production by an NDIS provider of documents or information but a restriction on the NDIS provider being compelled to produce the relevant documents or information.
Insofar as the respondent places considerable weight on the “extraordinary” relationship of confidence between NDIS provider and participant (and the vulnerability of the participant), there is nothing extraordinary about relationships of confidence and trust in which intimate information may be expected to be disclosed (see the doctor/patient relationship for one) yet records of such communications (in this example, doctor/patient records) are regularly the subject of compulsory production. Nor is there textual support for treating the relationship between participant and service provider as rendering the latter immune to now compulsory production of the records in question here.
Finally, insofar as the decision in Tasmania v TJG reflects a broad construction of s 67G, we respectfully disagree for the reasons given above.
We therefore conclude that, on the proper construction of s 67G, there is no operational inconsistency with s 138 of the MCHIFP Act in its operation on the documents which were required to be produced in this case.
It was accepted by the applicant that if the appeal were successful no costs would be sought against the respondent. For the above reasons, we make the following orders:
Grant leave to appeal.
Direct that the draft notice of appeal be filed by 10am, 29 October 2025.
Direct that the draft notice of contention be filed by 10am, 29 October 2025.
Allow the appeal.
Set aside the declaration made by the primary judge on 19 September 2025.
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Attorney General for NSW
MM
(1952) 86 CLR 1
(1997) 187 CLR 384
(1996) 186 CLR 389
(2020) 103 NSWLR 160
(2016) 259 CLR 164
(2024) 99 ALJR 103
(2005) 221 CLR 99
Leave to appeal was granted; the appeal was allowed; and the declaration made by the primary judge on 19 September 2025 was set aside. The Court also directed that the draft notice of appeal and draft notice of contention be filed by 10am on 29 October 2025: [178].
The applicant, in his written submissions filed for the preliminary hearing, had relied on material obtained from LBW pursuant to orders pursuant to s 138 of the MHCIFP Act. The respondent, in his submissions, objected to the tender of the LBW material produced pursuant to the s 138 orders. Weinstein J (the primary judge) heard the constitutional issue raised by the respondent’s objection to the tender of that material on 1 and 4 September 2025.
The primary judge held that LBW could not be compelled to produce documents in its possession concerning the respondent’s behaviour and mental condition because s 138 of the MHCIFP Act was inconsistent with the operation of s 67G(a) of the NDIS Act ([62]-[63] of the primary judgment).
The final hearing of the application pursuant to s 123 of the MHCIFP Act to extend the respondent’s status as a forensic patient is listed before a judge in the Common Law Division for hearing on 7 November 2025. The applicant maintains that the LBW documents (the subject of the confidential exhibit before the primary judge) are relevant to the s 123 application in circumstances where there is disagreement between the court-appointed experts as to whether the respondent poses a risk of causing serious harm to others if he ceases to be a forensic patient (one of those experts, Dr Gordon Elliott, opining, without having reviewed the LBW records, that the respondent does pose a risk of causing serious harm to others if he ceases to be a forensic patient but not being convinced that it rises to the level of “unacceptable risk”; that the combination of forensic patient status and continued NDIS support is the most likely means of managing the respondent’s risk; and, while expressing the difficulty of offering a conclusive opinion that the least restrictive means of managing that risk is continued NDIS support alone). If the appeal is successful, the applicant wishes to make the LBW documents available to the expert(s) for review in that context.
Hence, the urgency that attends the determination of the present application.
Chapter 4, headed “Administration” includes provisions enabling information to be provided or documents to be produced at the request of the CEO or the Commissioner: s 53, a requirement by the CEO in the circumstances specified requiring information or documents from a participant or prospective participant to be provided to the Agency; s 55, a requirement by the CEO to obtain the provision to the Agency of information or documents from other persons; s 55A, a requirement by the Commissioner that a person other than a prospective participant or person receiving support or services from an NDIS provider for information or documents to be provided to the Commissioner. In each case, the heading to the section indicates that this is to ensure the integrity of the NDIS.
In the case of a requirement under ss 55 or 55A, this must be by written notice and the notice must specify at least 14 days as the period within which the information or document is to be given or produced (s 56). It is an offence to refuse or fail to comply with a requirement under ss 55 or 55A, without reasonable excuse (s 57).
Part 2 of Chapter 4, headed “Privacy”, contains provisions dealing with the protection of information held by the Agency (Division 1, ss 60-67) and by the Commission (Division 2, ss 67A-67F). Relevantly, there is provision, despite s 67G, for the CEO and the Commissioner to disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her power under the NDIS Act in certain circumstances (see ss 66 and 67E). (Although in these sections “functions” and “duties” are coupled together separately from “power”, this is most likely due to the different nouns applicable to each (performance as opposed to exercise).)
Division 3, headed “Information generally” contains the critical provision for the purposes of the present application (s 67G).
Section 67G provides:
Further, the applicant submits that the terms “power”, “function” and “duty” should not be considered in isolation; rather, the applicant contends that the provision uses a composite expression and that “duty” should be understood in the same way as “power” and “function” (i.e., as referring to something that depends on the legislation to enable it to be done or to have effect); and hence the applicant argues that something would not be a “duty, power or function” under the NDIS Act if the NDIS Act merely regulates or imposes conditions on an activity in which a private person or entity could otherwise engage.
It is submitted that there are textual factors that support this interpretation, the applicant pointing to the language of “supports and services provided under the arrangements set out in Chapter 2” (including in the definition of “NDIS provider” in s 9), which the applicant argues is apt to capture the overlay of the obligations under the NDIS Act to the pre-existing sphere of activity of a registered provider (i.e., the provider’s business), in contrast to that provider exercising or performing powers, duties or functions under the NDIS Act. The applicant contrasts reference to the provision of supports and services “under the arrangements” set out in Chapters 2 and 3 of the NDIS Act with the reference to the performance or exercise of duties, powers or functions “under the NDIS Act”. The applicant also places weight on the distinction drawn in the statute between the NDIS (i.e., the Scheme), which is defined as the arrangements set out in Chapters 2 and 3, and the NDIS Act itself. The applicant notes that supports or services are provided, and amounts are paid, under the “Scheme” (the applicant referring by way of example to ss 3(1)(ga), 8, 24, 35, 45, 45A).
The applicant submits that the words “performance or exercise” in s 67G suggest that the “powers”, “functions” and “duties” in that section refer to positive actions enabled (or enabled and compelled) by the NDIS Act, rather than obligations that require compliance when exercising a power or capacity which is non-statutory or which is conferred otherwise than by the NDIS Act. The applicant contrasts this with s 203, which refers to an “obligation ... imposed” or “a thing the entity would be permitted to do”, and s 6, which refers to “meeting obligations under, or for the purposes of” the NDIS Act. The applicant argues that this difference in language supports a conclusion that the word “duties” (as part of the composite expression “duties, functions or powers”) in s 67G does not encompass obligations or activities that are merely regulated by the NDIS Act.
In that regard, the applicant submits that the obligations imposed on registered NDIS providers go well beyond the circumstances covered by sub-paragraph 1(c) of the declaration made by the primary judge (set out at [5] above); that they would extend to the obligations to implement complaints management/resolution systems (s 73W) and incident management and reporting systems (ss 73Y-73Z) and, if consideration is given to obligations that arise under the rules established for the purposes of the NDIS Act, they would include obligations under the National Disability Insurance Scheme (Practice Standards — Worker Screening) Rules 2018 (Cth). (As will be seen in due course, the respondent here invokes both ss 73W and 73Y, as well as s 73T and certain of the obligations under a number of the NDIS Rules in arguing that s 67G is engaged in relation to various of the documents here in dispute.)
The applicant argues that, if these obligations are covered by s 67G, then its scope is surprisingly broad (and materially impairs a great range of State regulatory and law enforcement activities); and, conversely, if these matters are not covered, then it follows that “duties” should not simply be equated with “obligations”, but should rather be read in a narrower sense to produce a more coherent result. The applicant argues that, once it is accepted that “duties” should be read in a narrower sense, there is every reason to prefer a narrower construction of s 67G of the kind he proposes.
As to contextual considerations and the purpose of s 67G, the applicant points to the objects of the NDIS Act (set out in s 3) and submits that the NDIS Act seeks to balance a number of different objectives, including that specified at s 3(1)(ga), with a range of different guiding principles. The applicant refers in particular to the guiding principles set out at s 4(6), s 4(7), s 4(10) and to the recognition that the NDIS Act does not exclusively cover any field of regulation but is intended to supplement existing legislative regimes and supports, and to operate concurrently with other Commonwealth and State regimes (referring by way of example to ss 3(3) (c)-(d), 4(14)-(15)). As adverted to above, the applicant emphasises that the Amending Act Explanatory Memorandum to the legislation states that “universal complaints and redress mechanisms” will continue to be available.
The applicant says that s 67G provides an immunity from requirements to produce (documents or information) but no obligation of secrecy, and has no explicit carve-out referable to the consent of the disabled person. It is submitted that, consistent with the stated purpose in the explanatory memorandum, s 67G is not primarily concerned with protecting individuals’ privacy (something which is preserved in other legislation and by Part 2 as a whole), but is rather concerned with ensuring that, if information or documents are provided to persons exercising public or administrative functions under the NDIS Act, then courts, tribunals or other authorities cannot force their disclosure for unrelated purposes.
As indicated above, the applicant argues that the consequence of the primary judge’s reasoning (that registered NDIS providers would be immune from many of the ordinary investigative processes of State-based litigation and law enforcement) would materially impair the protections offered by a range of State-based regulatory bodies, including in relation to criminal activity, occupational health and safety, professional regulation and fair trading. Insofar as the primary judge considered that this concern would be met through the mechanisms under the NDIS Act for a request to be made to the Commissioner who might then obtain documents from the provider (see at [73]-[74]), the applicant points out that there is no ability to compel production by the Commissioner, and that this process can be expected to take time (including that, pursuant to s 73J(2)(i), a request for information from the registered NDIS provider must specify a period for compliance of no less than 14 days). The applicant submits that this runs counter to the statement in the Amending Act Explanatory Memorandum that universal complaints and redress mechanisms would remain available. The applicant says that the scope of protective laws enacted by the States (enforceable through the police, professional regulators, SafeworkNSW and other equivalents), are thus materially impaired in respect of NDIS participants on the primary judge’s construction of the provision.
Further, it is submitted that the primary judge’s reasoning would have the surprising consequence that NDIS participants would themselves be precluded from requiring that they be given access to documents concerning them (for instance, under privacy law) unless they persuade the Commissioner to obtain the documents and disclose them under s 67E. The applicant submits that this would not advance the objects described above. Noting that, in argument before the primary judge, the respondent submitted that s 67G does not prevent consent by the participant or the participant’s guardian from consenting to disclosure of information about the provider or the participant itself disclosing the information (which the applicant suggests amounts to the proposition that s 67G should be read down so as not to apply to requirements imposed by the NDIS Act on participants) (see transcript 4/9/25; p 46.7), the applicant submits that the more coherent and textual pathway to that outcome is to construe the words “duties, functions or powers” so as not to encompass every activity carried out by a registered NDIS provider.
The applicant accepts that the interpretation adopted by the primary judge would protect the privacy of people with disability but says that the dignity of people with disability would be better served through State law enforcement bodies having the same access to documents and information held by a registered provider (by, for example, police, or other similar entities) as those bodies have in respect of any other provider of social or medical services. It is submitted that the dignity of people with disability would also be better served if they could, when otherwise empowered to do so, compel the production to them of their own documents. In oral submissions, the respondent said that a partial answer to the applicant’s submission that, on the respondent’s construction, participants could not compulsorily access their own information may be found in the NDIS Rules, the respondent referring by way of example to cl 12(2) of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) (NDIS Provider Registration and Practice Standards Rules), which requires registered providers to ensure that a participant’s information is easily accessible to the principal (see AT 41.45). Of course, that suffers from the difficulty (recognised by both parties) of approaching construction of the legislation by reference to the NDIS Rules put in place pursuant to the legislation.
The applicant argues that the legislature’s desire to balance the competing interests between participant privacy and other factors is recognised in ss 67E(1)(a), (1) (b) (i), (iii) and (iv) and in s 67F.
Further, the applicant points out that the breadth of the interpretation preferred by the primary judge has the effect that documents that do not contain any private information of participants will fall within s 67G. It is noted that s 67G is not confined to documents containing the private information of a participant; it is defined by reference to the performance of duties, functions or powers under the NDIS Act. So, for example, the applicant argues that an occupational health and safety investigation seeking documents concerning the processes and protocols utilised by a registered provider may be impaired on the basis that those documents were created because of the performance or exercise of duties, functions or powers under the NDIS Act.
While in Smith v Victoria Police (2012) 36 VR 97; [2012] VSC 374 (Smith v Victoria Police), a broader interpretation of the phrase “the exercise of functions under this Act” was preferred as better promoting the objects and purpose underlying the Whistleblowers Protection Act 2001 (Vic) (see Ferguson J, as her Honour then was, at [55]), the applicant emphasises that service providers may, but need not be, registered NDIS providers and the applicant contends that the narrower construction of s 67G is the more coherent construction.
As to the respondent’s draft notice of contention, the applicant accepts that there is an available argument that the breadth of s 67G could be curtailed by the operation of the words “because of”. However, the applicant submits that it is not clear that all, or even the majority, of documents held by a registered provider would be held because of a duty, power or function under the NDIS Act. In those circumstances, the applicant says that much would turn on the particular facts and the circumstances in which the document was created and that this makes the respondent’s interpretation unattractive as it would leave registered providers or State-based regulators to make a difficult judgment about precisely which documents would fall within the prohibition on compulsory production. (Indeed, the exercise carried out on a review of the confidential documents the subject of the present proceedings would illustrate this.)
Moreover, the applicant argues that if primacy is given to the factual question of causation, then whether something fell within s 67G might turn on the evidence as to why the record was made or kept by the particular provider, which might lead to inconsistent outcomes (such as if one provider might be protected by s 67G because s 73Q is the only reason the records are retained, whereas another naturally prudent provider who might keep records regardless of what s 73Q required might be outside the protection of s 67G). The applicant argues that the difficulties with this outcome give some weight to the suggestion that s 67G was not intended to capture provisions such as s 73Q, and supports the narrower interpretation of s 67G.
The respondent argues that the applicant’s construction would undermine a designedly broad provision intended to protect not simply private information but an important confidential relationship between registered providers and NDIS participants. It is submitted that this fundamentally differs from “mere regulation” of exogenous or private commercial activity. In this context, the respondent refers to various of the provisions relating to registration and funding of registered providers, as well as the statutory objects of the NDIS Act (which have been set out earlier in these reasons).
As to the construction of s 67G, the respondent argues that the references to “duties”, “functions” and “powers” are distinct and that the natural reading of the phrase is a disjunctive one intended to capture the variety of activities under the NDIS Act. The respondent submits that the words should not be read together as a composite expression because “duty” and “power” point to distinct concepts. The respondent argues that the components of the expression “duties, powers or functions” cannot be read ejusdem generis if they do not express a common genus.
The respondent says that “duties”, especially when read with the reference to “any person” in s 67G, is broad enough to encompass obligations owed by any person by reason of the NDIS Act; and that it extends, in its ordinary and natural meaning, to the many obligations to which registered providers are subject including record-keeping and incident reporting obligations.
As to the concept of “functions”, the respondent submits that this is a broad concept and that, in characterising a provider’s “functions” under the NDIS Act, one may look to the ordinary conceptions of the “role” that a provider performs (referring by way of example to the approach adopted in Smith v Victoria Police as to the “functions” of the Commissioner in that case – see at [47]; [50]). In that regard, the respondent says that the role of a registered provider under the NDIS Act is to deliver supports in a manner governed by the NDIS scheme. The respondent argues that, when a private provider is providing the supports for which it has been registered in a manner governed by the NDIS scheme, that provider is performing functions within the meaning of s 67G.
As to the meaning of “under” in the phrase “under the NDIS Act”, the respondent says that this is both protean and largely functional. The respondent argues that the effect of the applicant’s construction is to read the word “under” as “conferred or imposed by” in a narrow sense and says that there is nothing in the text, policy or function of s 67G to warrant such a narrow construction (cf, Ex parte Zietsch*; Re Craig* (1944) 44 SR (NSW) 360). The respondent submits that, given the remedial policy of protecting the privacy of participants (which underpins Pt 2, Ch 4 of the NDIS Act), the word “under” should be given the breadth it naturally admits.
The respondent submits that private registered providers are not performing functions outside the NDIS Act; rather, that the NDIS Act has created a new statutory species of professional activity. The respondent argues that providers who are registered under an Act and who, by rendering scheme services are exercising a permission given to them by the NDIS Act, are readily seen to be performing functions “under” that Act.
The respondent says that the NDIS Act itself describes the functions of registered providers as functions “under” the NDIS Act, referring to s 4, which refers to general principles guiding “actions under this Act”; and to references in the NDIS Act to supports provided “under” the NDIS (s 4(14)) and to services “provided under” the scheme (ss 3(1)(ga) and 181E(a)). The respondent also refers to s 4(17), which he says makes clear that the principles are to be observed not only by identified public institutions, but also by “any other person or body” performing functions under the NDIS Act.
The respondent argues that, to exclude registered providers from the scope of s 67G and to limit the provision to public bodies on whom the NDIS Act directly confers public power, would be inconsistent with Parliament’s choice to extend s 67G to “any person” (and submits in effect that had Parliament chosen to restrict immunity in that way it could have done so expressly, referring to the Student Assistance Act 1973 (Cth), s 354 and Child Care Act 1972 (Cth), s 12M). (In reply submissions, the applicant contends that the exclusion of registered providers from the operation of s 67G is not inconsistent with the language of “any person” in s 67G having regard to the context of s 67G and its legislative history. The applicant points out that the protections in Divisions 1 and 2 of Part 2 concern disclosure; and that they are silent concerning compulsory processes; in contrast to which s 67G limits the circumstances in which compulsory production of information may be required. The applicant maintains that s 67G applies to Agency and Commission officers, as defined under the NDIS Act, and also, for example, to consultants (ss 171, 181V) and inspectors or investigators appointed under the NDIS Act (who may include third party contractors – see s 73ZR).)
The respondent also submits that the applicant’s construction does not cohere with the structure of Pt 2 of Ch 4 of the NDIS Act, of which the respondent says s 67G forms an important “gap-filling” part. The respondent says that, on the applicant’s view, only the Agency, the Commission and its staff would be made non-compellable because only they would be exercising powers directly “under” the NDIS Act. The respondent argues that s 67G must be given some other work to do.
The respondent submits that the broader construction for which he contends is supported by the conclusion reached by Pearce J in Tasmania v TJG [2021] TASSC 47 (Tasmania v TJG), in an ex tempore judgment, that a registered NDIS provider was performing its functions “under” the NDIS Act when it had in its possession documents relating to the services it was giving participants as a registered provider. The applicant notes that his Honour’s reasons included that s 67G must be referring to persons other than the Agency and Commission and its ancillary offices, and that a registered provider’s function of providing supports is a function under the NDIS Act (see at [15]).
As to the purpose of s 67G, the respondent argues that this favours his construction. Insofar as the applicant suggests that s 67G protects only documents in the custody of government agents empowered directly by the statute, such as the Commission, the Agency and its officers, the respondent argues that the kind of enquiry made in the judicial review context (see Tang) as to whether an administrative action is undertaken pursuant to a direct source of statutory power is not a relevant enquiry in the context of a scheme, such as Part 2 of Chapter 4 of the NDIS Act, designed to protect the “privacy” of scheme participants (that being one of the purposes of the NDIS Act outlined in s 4). In this context, the respondent refers to the requirement as a condition of registration that “respect the privacy of people with a disability” (referring to r 6 of the National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth) (Code of Conduct Rules)). (In reply submissions, the applicant says that even if it were permissible here to use the rules to construe the NDIS Act, r 6 of the Code of Conduct Rules does not address the concerns raised by the applicant. The applicant notes that r 6 also requires that a person to whom the Code of Conduct Rules applies “promptly take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability” and says that there may be circumstances in which these obligations come into conflict (for example, where disclosure of private information may be required to raise a concern about a service provided to a person with disability). The applicant submits that facilitating law enforcement and professional regulation is entirely consistent with respecting an individual’s privacy.)
The respondent accepts that providers would not be prohibited by s 67G from making a voluntary disclosure of participants’ information but says that any voluntary disclosure would be constrained significantly by the obligation to “respect the privacy of people with a disability” as a condition of registration; and that this does not point against a characterisation of s 67G’s purpose as the protection of participants’ privacy. Nor, the respondent argues, is this characterisation of purpose undermined by the effect of the primary judge’s construction being to preclude participants from compelling the production of their own information. (The applicant, to the contrary, argues that the fact that a participant cannot compel production of records concerning services provided to them is an indicator of the incoherence created by the broad interpretation, the applicant noting that the secrecy protections in Div 1 and Div 2 of Part 2 expressly contain exceptions referable to the consent of the participant.)
The respondent accepts that s 67G does not fix upon information having any necessary quality of confidentiality but the respondent argues that the point of s 67G’s protection of privacy is to ensure the privacy of the relationship set up by the NDIS Act between providers and participants (by preventing any coercive interference with that relationship irrespective of the contents of any document in question). The respondent says that anything less would “predictably diminish public confidence” in the sanctity of that relationship (referring to Piras v Thaisawat (1993) 115 FLR 79 at 86). The respondent says that it is that confidence or expectation that underpins disabled persons’ choice to participate in the scheme and entrust information to providers. (In reply submissions, the applicant notes that the respondent has not pointed to any part of the NDIS Act or extrinsic materials to support the proposition that s 67G is intended to ensure the privacy or secrecy of the relationship between registered providers and participants. The applicant also notes that there are many relationships recognised in general and statute law as requiring significant protection: for example, the relationship between medical practitioners or lawyers and their clients; and says that it would be startling if the legislature had intended that that the logistical step of having funds managed through the Agency should have as its consequence that certain documents would be immune from law enforcement and professional regulators. The applicant also says that that would create a discrepancy between people with disability whose funds are managed in this way, and those whose funds are not.)
The respondent dismisses the concerns raised by the applicant as to the consequences of the primary judge’s construction (such as the ability of State regulatory bodies being impaired in the exercise of their statutory investigative powers) as being exaggerated. The respondent says that the NDIS Act already prescribes a mechanism for State regulatory authorities to receive information about NDIS participants (referring, among other things, to the requirement for notification to the Agency of “reportable incidents” – see s 73Z; and to the provisions under which the Commission may require the provision of documents – see ss 55A, 73F(2)(b), 181F(c) of the NDIS Act; NDIS Code of Conduct, r 3). The respondent also refers to the receipt by the Commission of participant information by the regular audits that must be conducted under r 13B(6) of the NDIS Provider Registration and Practice Standards Rules; and to the provisions which empower the CEO of the Agency and the Commission, respectively to disclose requested documents to any person if “satisfied on reasonable grounds that it is in the public interest to do so” and to heads of a State or Territory department (ss 66(1)(a), 66(1)(b)(v) and 67E).
The respondent argues that the Parliament has decided that the best way of balancing participants’ rights to privacy with competing regulatory goals is for the Agency and the Commission, rather than NDIS providers, to act as the “gatekeepers” to NDIS information; and says that, even if the proper construction of s 67G has the consequence the applicant foreshadows, this is simply a consequence of Commonwealth provisions giving immunities to persons entrusted with the execution of important public functions.
As to the applicant’s reference to the statement in the Amending Act Explanatory Memorandum as to the continued availability of universal complaints and redress mechanisms, the respondent says that those will continue to be available; and that, to the extent the respondent’s construction impinges on the unfettered conduct of those complaints systems, that is consistent with what the NDIS Act already achieves elsewhere (referring to s 58 and Pt 2 generally). (In reply submissions, the applicant accepts that the interpretation favoured by the respondent does not render unavailable the universal complaint and redress mechanisms referred to in the extrinsic materials, but he contends that this interpretation materially impairs the effectiveness of those mechanisms as regards a particular class of scheme participants (who, since their funding is managed by the Agency, might be expected to be among the more vulnerable participants).)
To the extent that s 67G may “materially impair” regulatory aims under State provisions, the respondent argues that this is simply the consequence of a Parliament according more weight to privacy in certain sensitive relationships than some forensic benefits that might have been expedient in litigation; and that, if this be “extraordinary”, it is because the NDIS Act creates and organises an “extraordinary” relationship between registered providers and participants in the scheme.
As to the reliance by the respondent on s 73T of the NDIS Act (for Documents 1 and 2), we do not consider that those documents were prepared or kept under a statutory duty to do so. Indeed, we note that the respondent accepts that he does not rely in his aide-memoire addressing the eight confidential documents or groups of documents on s 73Q (the record-keeping provision) for the reason that he has not found a rule specifically referring to s 73Q as being record-keeping rules (in other words, as we understand it, no specific rule relating to the record-keeping obligation in s 73Q of the NDIS Act) (see AT 45.48). The only rules apparently made under s 73Q relate to worker selection, and those are not relevant to this appeal.
As to the reliance by the respondent, in relation to the various case and progress notes, on provisions of the NDIS Act requiring registered providers to implement and maintain various systems in relation to complaints and incident management, none of Documents 5-8 record a reportable incident (within the meaning of s 73Z(4)) and some (the documents in Document 5, 7 and 8 for example) expressly record that there are no behaviours of concern or that this item is not applicable. The NDIS Act provides that NDIS rules may make provision for standards (s 73T, under Division 3 Quality assurance) and a Code of Conduct (s 73V, Division 4) and that failure to comply with a requirement under an applicable Code of Conduct is an offence. The NDIS Act does not directly impose an obligation (or duty) to comply with those rules.
As to s 73W and s 73Y, it is certainly the case that registered providers are obliged to implement and maintain a complaints management and resolution system and an incidental management system, respectively. However, the source of any duty on the part of a registered provider to keep records as part of the maintenance of such systems derived from the NDIS Rules, not from the NDIS Act itself.
We do not accept that any of the documents in question are precluded from compulsory production pursuant to s 67G of the NDIS Act on the proper construction of that section (on the assumption that one is focusing simply on the “duties” aspect of that provision).
Turning to the alternative (broader) way in which the respondent’s argument is put, namely the argument that s 67G covers all documents prepared or held by registered service providers (whether or not they contain personal information relating to the participant) in the performance or exercise of their duties, powers or functions (each considered separately) under the NDIS Act; and that there is no distinction between what might be described as “public” duties, powers or functions and those that might be performed or exercised by a private service provider (registered or otherwise), we make the following observations.
The principles applicable when construing statutory provision were not in dispute and are well known (see, for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [14]).
One begins with a consideration of the text but the statutory text must be considered in its context, that context including legislative history and extrinsic materials (see, for example, the approach adopted in Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15), and having regard to the purpose of the legislation or the mischief it was intended to address (see, for example, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, per Brennan CJ, Dawson, Toohey and Gummow JJ at 408).
Here, consideration of the text requires attention not only to the phrase “duties, powers and functions” but also to the concept of “under” the NDIS Act. There is no dispute that “because of” introduces a causal connection between the holding of the documents of information and the performance or exercise of duties, powers and functions under the NDIS Act (although the applicant has pointed to the difficulties of factual causation that are occasioned by a broad construction of s 67G).
We have concluded that, as the applicant submits, the phrase “duties, powers and functions” is used in s 67G of the NDIS Act in a composite sense rather than as referring to three distinct subject matters.
In Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; [2003] HCA 54, the meaning of “composite expression” was explained by the High Court at [34] as being “one which is a compound created out of at least two elements or integers which is different from each of them”. In XYZ v Commonwealth (2006) 227 CLR 532; [2006] HCA 25 at [19], Gleeson CJ cautioned that there “are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts” and, similarly, in Sea Shepherd Australia Ltd v Commissioner of Taxation (2013) 212 FCR 252; [2013] FCAFC 68 at [34], Gordon J said that “[t]he task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision”.
In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36, the High Court accepted that, in determining the meaning of a composite phrase, one may have regard to both the ordinary and technical meanings of the individual words comprising a compound phrase for the purpose of determining the phrase’s unique meaning.
In National Disability Insurance Agency v WRMF (2020) 276 FCR 415; [2020] FCAFC 79, the Full Court of the Federal Court (Flick, Mortimer and Banks-Smith JJ), when construing the meaning of “reasonable and necessary supports” in the NDIS Act, said that “each limb of the phrase should be given work to do” (at [149]) but went on to observe (at [150]) that “[b]oth adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them”.
The fact that the word “or” as opposed to “and” appears in the expression “duties, powers or functions” does not preclude this being construed as a composite phrase. In Cooper v Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250 at [26], Basten JA described a strata by-law prohibiting “harsh, unconscionable or oppressive” by-laws as “a ‘triune’, three words conveying a single criterion”.
In the NDIS Act, various provisions refer specifically to “duties” of particular persons (see, for example, ss 80, 180B and 180E) and others to “functions” of particular persons (see ss 118, 123, 159 and 181B). Further, in other sections of the NDIS Act, “functions or duties” are referred to separately to “exercise of powers” (see ss 66(1)(a), 67E(1)(a), 73ZE and 73ZF). This suggests that, when adopting the expression “duties, powers and functions”, the legislature was indeed adopting a composite expression in s 67G.
That said, the applicant submits that his argument as to the construction of s 67G does not depend on the phrase “duties, powers or functions” being read as a composite phrase. Rather, the applicant emphasises the incoherence of a construction which encompasses activities of private NDIS providers not exercising or performing public duties, powers or functions.
As to the meaning of “under”, we consider that this is informed in the NDIS Act by the fact that it is used in different expressions: “under” participant’s plans; under the Scheme (which itself is defined as the “arrangements” in Chapters 2 and 3); and under the NDIS Act. That textual indication suggests that focus here should be on whether the duty, power or function (whether considered in a composite or individual sense) is being performed or exercised pursuant to some statutory obligation or requirement or enabling provision derived from the NDIS Act itself, as opposed, say, to fulfilling a condition of registration or requirement contained in a participant’s plan or simply performing functions as a registered provider. Certainly, it is a requirement that access providers be registered in order to supply certain support servers (i.e., those for which funding managed by the Agency is received). But that does not make the process of registration, or the forms required to be prepared in an applying for registration, or the provision of supports by registered providers, the performance and exercise of a duty, power or function under the NDIS Act.
As noted earlier, the applicant refers in this context to the decision of the High Court in Tang (and see also NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 (NEAT)).
In Tang, Gummow, Callinan and Heydon JJ held at [89] that two criteria must be satisfied for a decision to be made “under” an enactment within the meaning of the ADJR Act: first, the decision must be expressly or impliedly required or authorised by the enactment; second, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense derive from the enactment. A similar approach was taken by Gleeson CJ, who identified the question as whether the decision “took its legal force or effect from statute”. At [18], the Chief Justice approved the following quote from Davies AJA in Scharrer v New South Wales (2001) 53 NSWLR 299; [2001] NSWCA 360:
(2013) 23 Tas R 353
(2020) 276 FCR 415
(2003) 216 CLR 277
(1993) 115 FLR 79
(1998) 194 CLR 355
(2001) 53 NSWLR 299
(2013) 212 FCR 252
(2012) 36 VR 97
(2017) 262 CLR 362
(2003) 77 ALJR 1797
(2006) 227 CLR 532
(1998) 194 CLR 335
(2017) 91 ALJR 936