Attorney General for NSW v MM (a pseudonym) by his tutor Barbara Ramjan

Date of orders: 19 September 2025

Decision date: 19 September 2025

Jurisdiction: Common Law

Before: Weinstein J

Decision: (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.
(2) A declaration that s 138 of the MHCIFP Act is invalid to the extent identified in Order 1.
(3) A declaration that the written orders served on Little Blue Wren Services Pty Ltd (Little Blue Wren) by a delegate of the relevant Minister on 18 October 2024, 28 January 2025, 17 April 2025 and 3 June 2025 (Section 138 Orders) are invalid.
(4) The hearing and determination of prayers 4 and 5 of the notice of motion dated 13 August 2025 is adjourned pending further order of the Court.
(5) The parties are to provide consent orders for the determination of prayers 4 and 5 of the notice of motion to my Associate within 7 days of the date of this judgment or, if consent orders cannot be provided, are to approach my Associate to seek a date, convenient to the Court, for further hearing of those prayers.
(6) If, within the 7-day period referred to in order 5, any party seeks leave to appeal from the determination of prayers 1 to 3, the period in which order 5 is to be complied with is extended until 7 days after any application for leave to appeal and any appeal is determined.
(7) The plaintiff is to pay the defendant’s costs of and incidental to the hearing on 1 and 4 September 2025.

Catchwords: CONSTITUTIONAL LAW – Commonwealth and State relations – Inconsistency of laws – Whether s 138 of Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) is operationally inconsistent with s 67G of the National Disability Insurance Scheme Act (2013) (Cth) – Where inconsistency found – Where State law invalid to extent of inconsistency

Legislation Cited: Acts Interpretation Act 1901 (Cth) ss 2C(1), 15AA
Administrative Arrangements (Minns Ministry – Administration of Acts) Order 2023
Australian Constitution ss 5, 109
Crimes Act 1900 (NSW) s 61J
Interpretation Act 1987 (NSW) s 33
Judiciary Act 1903 (Cth) s 78B
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ss 121, 130, 131, 138
National Disability Insurance Scheme Act (2013) (Cth) ss 3, 4, 9, 37, 55A, 67E, 67G, 73F, 73J, 73ZM, 73ZL
National Disability Insurance Scheme (Code of Conduct) Rules 2018 r 6
Uniform Civil Procedure Rules 2005 (NSW) r 1.22

Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41
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 Ramjan) (Preliminary) [2025] NSWSC 941
Attorney General for New South Wales v MM (Preliminary) [2024] NSWSC 599.
Jemena Asset Management (3) Pty Ltd v Coinvest Ltd (2011) CLR 508; [2011] HCA 33
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381; [1998] HCA 28
Smith v Victorian Police (2012) 36 VR 97; [2012] VSC 374
Sydney Seaplanes Pty Ltd v Page (2021) 106 NSWLR 1; [2021] NSWCA 204
Tasmania v TJG [2021] TASSC 47
Victoria v The Commonwealth (1937) 58 CLR 618; [1937] HCA 82

Texts Cited: Explanatory Memorandum to the NDIS Amendment (Quality and Safeguards Commission and Oher Measures) Bill 2017

Category: Procedural rulings

Parties: Attorney General for NSW (Plaintiff)
MM (Defendant)

Representation: Counsel:
J Emmett SC (Plaintiff)
C Winnett / F Leitch (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2025/00188399

JUDGMENT

1. On 16 May 2025, the plaintiff filed a Summons seeking, inter alia, an interim order that the defendant’s status as a forensic patient be extended for three months under s 130 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”), and a final order that the defendant’s status as a forensic patient be extended under s 121 of the MHCIFP Act. A preliminary hearing took place before Ierace J on 31 July 2025, where his Honour granted the interim relief sought. Reasons for his Honour’s decision were published on 18 August 2025: Attorney General for New South Wales v MM (a pseudonym) (bht Ramjan) (Preliminary) [2025] NSWSC 941.

2. In written submissions dated 14 July 2025, the defendant raised an objection to evidence that the plaintiff proposed to tender in the preliminary hearing. This objection raised a constitutional issue pursuant to s 109 of the Constitution.

3. The evidence objected to by the defendant comprises documents provided by the defendant’s National Disability Insurance Scheme (“NDIS”) registered provider. These documents were produced by the NDIS provider to the plaintiff pursuant to four orders issued under s 138(1) of the MHCIFP Act. The defendant contends that an order made under s 138(1) of the MHCIFP Act to a registered NDIS provider is invalid to the extent that s 138 of the MHCIFP Act is inconsistent with s 67G of the National Disability Insurance Scheme Act (2013) (Cth) (“the NDIS Act”) and therefore engages s 109 of the Constitution.

4. Pursuant to rule 1.22 of the Uniform Civil Procedure Rules 2005 (NSW), on 22 July 2025 the defendant issued a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) to the Commonwealth, State and Territory Attorneys-General. Between 24 and 30 July 2025, the Attorneys-General of the Commonwealth, Australian Capital Territory, Western Australia, Tasmania, Victoria and South Australia each confirmed that they did not wish to intervene in these proceedings. No confirmation was received from the Attorneys-General of the Northern Territory or Queensland. However, I am satisfied that notice was given in accordance with s 78B of the Judiciary Act and a reasonable time has elapsed since the service of that notice so that I assume that the Attorneys-General of the Northern Territory and Queensland do not wish to intervene.

Background

5. A joint statement of facts was tendered by the parties in these proceedings. The following summary of facts has been made by reference to that statement, the previous judgments made by this and other courts, and other material tendered by the parties.

6. The defendant is a 57-year-old Aboriginal man. He resides in West Tamworth in a property leased from a community housing provider. He is a participant of the NDIS. His current plan expires on 22 May 2026.

7. The defendant has a lengthy criminal history. This history contains a number of offences involving violence. He also has a history of non-compliance with court orders and bail undertakings. On 28 May 2020, the defendant was arrested and charged with aggravated sexual assault of a person under his authority contrary to s 61J(1) of the Crimes Act 1900 (NSW) (“the index offence”). He was found unfit to be tried on 17 June 2021 by O’Brien AM DCJ. A special hearing was conducted pursuant to the MFCIFP Act by Traill DCJ commencing on 1 December 2021.

8. On 17 February 2022, Traill DCJ made a qualified finding of guilt and found that on the limited evidence available, the defendant had committed the index offence. On 1 September 2022, her Honour imposed a limiting term of 4 years commencing on 28 May 2020 and expiring on 27 March 2024, and the defendant became a “forensic patient” under s 72(1)(b) of the MHCIFP Act. An order correcting the expiry date of the limiting term to 27 May 2024 was made by the District Court on 9 February 2024.

9. The defendant remained in custody until the Mental Health Review Tribunal ordered his release on 3 November 2023. The defendant’s release was subject to residential and abstention conditions, as well as a requirement that he engage with a case manager from the Community Safety Program. As the defendant’s limiting term had not expired upon his release, he remained a “forensic patient” under the MHCIFP Act. His status as a forensic patient was set to expire on 27 May 2024.

10. On 23 February 2024, the plaintiff filed a Summons in this Court seeking an order that the defendant’s status as a forensic patient be extended for 18 months. A preliminary hearing was held before Sweeney J, in which the plaintiff sought an interim order pursuant to ss 130 and 131 of the MHCIFP Act that the defendant’s status be extended for a period of three months, commencing on 27 May 2024. That order was granted, and the defendant’s status as a forensic patient was extended until 27 August 2024: Attorney General for New South Wales v MM (Preliminary) [2024] NSWSC 599.

11. The final hearing took place before Dhanji J on 7 August 2024. His Honour made an order under s 121 of the MHCIFP Act that the defendant’s status as a forensic patient be extended for twelve months, expiring on 16 August 2025: Attorney General for New South Wales v MM (a pseudonym) (bht Johnson) (Final) [2024] NSWSC 1030.

12. On 16 May 2025, the plaintiff again filed a Summons in this Court seeking interim and final orders extending the defendant’s status as a forensic patient. It is out of this second application that the present question of constitutional inconsistency arises.

13. A preliminary hearing to determine the interim orders sought by the plaintiff was listed before Ierace J on 31 July 2025. On 23 June 2023, the plaintiff filed written submissions for the preliminary hearing. Those written submissions relied on material from the defendant’s NDIS registered provider, Little Blue Wren (“LBW”), obtained by the plaintiff under orders pursuant to s 138 of the MHCIFP Act.

14. On 14 July 2025, the defendant filed submissions objecting to the tender of the LBW material produced pursuant to the s 138 orders. This objection raised the constitutional issue with which the present proceedings are concerned. On 24 July 2025, Yehia J ordered that the constitutional issue be heard on 1 September 2025.

15. The preliminary hearing proceeded before Ierace J on 31 July 2025. His Honour was made aware of the upcoming hearing to determine the constitutional issue. However, the defendant accepted at that hearing that even without the Court having regard to the impugned material, the Court could be satisfied that an interim order was appropriate in the circumstances.

16. Ierace J made an interim order extending the defendant’s status as a forensic patient for three months pursuant to ss 130 and 131 of the Act. At present, the defendant’s status as a forensic patient will expire on 15 November 2025.

17. In the present proceedings concerning the constitutional issue, the plaintiff seeks the following relief:

18. 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.

2. A declaration that s 138 of the MHCIFP Act is invalid to the extent identified in Order 1.
3. A declaration that the written orders served on Little Blue Wren Services Pty Ltd (Little Blue Wren) by a delegate of the relevant Minister on 18 October 2024, 28 January 2025, 17 April 2025 and 3 June 2025 (Section 138 Orders) are invalid.
4. A mandatory injunction restraining the Plaintiff from using or adducing into evidence any of the documents, reports or other information provided by Little Blue Wren to the Plaintiff pursuant to the Section 138 Orders (NDIS Documents).
5. An order that:

(a) the Plaintiff deliver to the Court for destruction all copies of the NDIS Documents in his possession, power, custody or control; (b) to the extent that such material is stored by the Plaintiff in electronic form, such material be permanently deleted; and (c) the Plaintiff provide written confirmation of compliance with this order to the Defendant’s solicitors within 7 days.

6. In the alternative to Orders 4 and 5, an order pursuant to s 138 of the Evidence Act 1995 (NSW) that the NDIS Documents not be admitted into evidence in the proceedings.

7. The Plaintiff pay the Defendant’s costs of and incidental to the hearing on 1 September 2025.

8. I heard the matter on 1 and 4 September 2025. Ms Winnett appeared for the defendant with Ms Leitch. Mr Emmett SC appeared for the plaintiff. I am grateful to them for the collaborative manner in which the proceedings were conducted. These reasons have been prepared in some haste because of the need to progress the matter before the final hearing of the Summons. I address only the most pertinent of their comprehensive and erudite written and oral submissions.

Legislation and Principles

19. The material objected to by the defendant was obtained by the plaintiff pursuant to s 138 of the MHCIFP Act. Section 138 provides:

138 Minister may require provision of certain information

(1) A Minister administering this Act may, by order in writing served on any person, require the person to provide to the Minister any document, report or other information in that person’s possession, or under that person’s control, relating to the behaviour, or physical or mental condition, of any forensic patient who is subject to a limiting term, extension order or interim extension order.

(2) A person who fails to comply with the requirements of an order under this section is guilty of an offence.

Maximum penalty—100 penalty units or imprisonment for 2 years, or both.

(3) A Minister administering this Act may request a court or the Tribunal to provide to the Minister any document, report or other information held by the court or Tribunal relating to the behaviour, or physical or mental condition, of any forensic patient who is subject to a limiting term, extension order or interim extension order.

(4) Despite any Act or law to the contrary, a document or report of a kind referred to in subsection (1) or (3), or a copy of a document or report of that kind, is admissible in proceedings under this Act (whether admission is sought by the Minister to whom the document or report was provided or by another Minister administering this Act).

20. Pursuant to the Administrative Arrangements (Minns Ministry – Administration of Acts) Order 2023, the Attorney General is the Minister administering s 138 of the MHCIFP Act.

21. Section 138 of the MHCIFP Act is said to be inconsistent with s 67G of the NDIS Act. Section 67G provides:

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.

22. The principles with respect to inconsistency are not in dispute. What is in dispute is whether or not, in the present case, there is in fact an inconsistency between s138 of the MHCIFP Act and s 67G of the NDIS Act. When a law of a State is inconsistent with a law of the Commonwealth, the Commonwealth law will prevail, and the State law will be invalid to the extent that it is inconsistent with the Commonwealth law: Constitution s 109. Covering clause 5 and s 109 of the Constitution provide:-

5. Operation of the Constitution and laws

This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State; and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

…

109. Inconsistency of laws

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

23. A direct inconsistency will arise where a State law would alter, impair or detract from the operation of a Commonwealth law to a significant extent: *Jemena Asset Management (*3) Pty Ltd v Coinvest Ltd (2011) CLR 508; [2011] HCA 33 at [41].

24. A direct inconsistency may arise in the operation or execution of powers given under laws. That is the case where a Commonwealth law is not directly impaired by the State law until the State authority decides that it should exercise its powers: Victoria v The Commonwealth (1937) 58 CLR 618; [1937] HCA 82 at 631; Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [248] (“Mom**cilovic”). In Momcilovic at [249], Gummow J said that “operational inconsistency” reflects:

“[t]he important temporal distinction, for the operation of s 109, between a law which is self-executing and operates immediately upon a subject matter, and one which does so only at the point of exercise of a power conferred by that law…”

[emphasis added]

25. Facultative laws dealing with the same subject matter may come into conflict if and when each authority decides that it should exercise its powers, but before then, the federal law is not directly impaired by the State law: Momcilovic at [248].

26. To assess whether a State law is inconsistent with a Commonwealth law, it is necessary to construe both laws by applying the orthodox principles of statutory construction. The exercise of statutory construction requires the Court to construe each law’s terms in the context of the statute as a whole, by reference to its evident purposes: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381; [1998] HCA 28 at [69].

27. In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41 Hayne, Heydon, Crennan and Kiefel JJ said at [47]:-

“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”

[citations omitted]

28. The principles of statutory construction were considered in Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 (“Sydney Seaplanes”) at [27]. Bell P, as his Honour then was (Leeming JA agreeing at [147]; Emmett AJA agreeing at [169]) said:-

“The modern approach to statutory interpretation, as Sir Anthony Mason observed more than 35 years ago in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315; [1985] HCA 48, “insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise” (emphasis added). The importance of context has routinely been emphasised by the High Court in cases concerned with statutory interpretation: see, for example, Project Blue Sky at [69]; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (CIC*); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd* (2004) 218 CLR 273; [2004] HCA 14 at [11]; Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14 at [57]; and SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at [14] (SZTAL).”

29. At [30] his Honour said:-

“…“context” is to be understood in a broad sense and not confined to the immediate context supplied by other provisions in a statute of which one or more provisions are the subject of the immediate inquiry by the Court. Context extends to include the existing state of the law, legislative purpose and any mischief which the statute was intended to remedy: see, for example, CIC at 408; Maloney at [324]; SZTAL at [14].”

30. Context may reveal the purpose underpinning the enactment: Sydney Seaplanes at [31]. Indeed, with respect to State legislation, the importance of context in statutory interpretation is not so much a matter of choice as “legislative fiat” because of s 33 of the Interpretation Act 1987 (NSW) (“the Interpretation Act”): Sydney Seaplanes at [33]. The same can be said about construing Commonwealth legislation because of s 15AA of the Acts Interpretation Act 1901 (Cth) (“the AI Act”), which provides:

15AA Interpretation best achieving Act’s purpose or object

In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.

The dispute between the parties

31. It is not in dispute that the defendant is a participant under the NDIS Act, and that a registered provider provided supports and services to him pursuant to a plan (defined in s 9 of the NDIS Act) in effect under s 37 of the NDIS Act.

32. The plaintiff conceded in both written and oral submissions that there was a “potential” inconsistency between s 138 of the MHCIFP Act and s 67G of the NDIS Act. There was also no dispute between the parties that the character of the inconsistency, should it arise, is “operational inconsistency” such that it arises only on the exercise, or purported exercise, of the Minister’s powers under s 138 of the MHCIFP Act. The “potential” inconsistency is operational because s 67G of the NDIS contains a prohibition which is self-executing, while s 138 of the MHCIFP Act is a facultative law, which can be exercised in different ways by the State. The inconsistency arises where the exercise of the State law (in this case, the issuing of the orders under s 138) purports to require something that s 67G forbids.

33. The issue in the present case is the scope of any operational inconsistency between s 138 of the MHCIFP Act and s 67G of the NDIS Act, and whether an inconsistency has been triggered in the present case such that the defendant is entitled to the orders sought.

34. This question largely turns on the proper construction of s 67G of the NDIS Act and the determination of the circumstances in which NDIS registered providers are performing or exercising “duties, functions or powers” under the NDIS Act.

The defendant’s submissions on the interpretation of s 67G of the NDIS Act

35. The defendant submitted that when registered NDIS providers provide the services and supports for which they are registered to a participant under an NDIS plan, those providers are performing duties and functions under the NDIS Act. Accordingly, documents in a registered provider’s possession “because of” the provision of those services will be protected under s 67G of the NDIS Act.

36. The defendant contended that because NDIS plans are the creation of the NDIS Act, services and supports provided under those plans are necessarily occurring “under” the Act. Rather than merely creating a regulatory framework over an existing field of enterprise, the NDIS Act creates a new statutory species of those professional services.

37. That registered NDIS providers perform “duties” and “functions” under the NDIS Act is said to be demonstrated by the system of registration and regulation provided for by the NDIS Act. The NDIS Act sets out a system in which providers must become registered before they can provide certain classes of support. Once registered, the NDIS Act imposes various obligations on those providers as conditions of registration. These conditions include that the registered provider comply with the NDIS Code of Conduct: s 73F(2)(b) of the NDIS Act. Notably, a failure to comply with a condition of registration gives rise to a civil penalty: s 73J of the NDIS Act.

38. The defendant submitted that the result of this regulatory regime is that the “function” of a registered NDIS provider is to provide the services and supports for which they are registered. In providing those services and supports in accordance with their obligations, registered providers are performing “duties” under the NDIS Act. The necessary corollary of that submission is that when a registered NDIS provider produces documents in the course of providing services and supports to a participant, those documents will be in the possession of the NDIS provider “because of” the performance of their functions and duties under the Act.

39. The defendant’s submission that documents produced by registered NDIS providers in the course of providing services and supports to NDIS participants should be captured by s 67G was said to be consistent with the NDIS Act’s emphasis on privacy and protection of participants’ information. The defendant observed that it is a general principle guiding actions under the NDIS Act that “people with a disability should have their privacy and dignity protected”: s 4(10) of the NDIS Act. Further, registered NDIS providers are required to “respect the privacy of people with a disability” as a condition of registration: see s 6 of the National Disability Insurance Scheme (Code of Conduct) Rules 2018.

40. The defendant points out that the NDIS Act specifically provides for a mechanism by which sensitive information about participants may be lawfully transmitted to State law enforcement bodies. The defendant observes that s 73F(2)(i) makes it a condition of registration that registered providers must provide to the Commissioner of the NDIS Quality and Safeguards Commission (“the Commissioner”) any information requested by the Commissioner within 14 days, following which the Commissioner, pursuant to s 67E(1)(b)(iii), may disclose information to (relevantly) a State Authority “if it is in the public interest to do so”: s 67E(1)(a) of the NDIS Act.

41. The NDIS Quality and Safeguards Commission and the Commissioner are established by Chapter 6A of the NDIS Act. The Commissioner’s functions are set out in s 181D of the NDIS Act and her core functions in s 181E of the NDIS Act. Amongst the Commissioner’s functions are to uphold the rights of, and promote the health, safety and wellbeing of, people with a disability receiving supports or services, including those received under the NDIS: s 181E(a) of the NDIS Act.

42. Accordingly, the defendant submitted that, in the event that a State law enforcement or investigative body should need to obtain documents or information from an NDIS provider with respect to a participant, the correct pathway for obtaining that material is for the State body to contact the Commissioner and request that she exercise her powers and entitlements pursuant to ss 73F(2)(i) and 67E(1)(b)(iii), first to obtain the relevant documents and material from the relevant registered NDIS provider and, second, to disclose it to the State body “if it is in the public interest to do so”.

43. The defendant emphasised the significance of this latter public interest criterion, as setting the boundaries of the circumstances where information about a person with a disability may be lawfully disseminated to State agencies, which the defendant says are carefully circumscribed.

44. I observe that documents provided by registered providers to others can be compulsorily obtained (as has otherwise occurred in this case). Furthermore, it appears not to be in dispute that a registered provider or a NDIS participant (so far as he or she is able) may voluntarily provide documents.

The plaintiff’s submissions on the interpretation of s 67G of the NDIS Act

45. The plaintiff submitted that s 67G of the NDIS Act captures only documents held because of the exercise of a duty, function or power the carrying out of which is enabled by the NDIS Act. It was submitted that the section does not apply to documents that a registered NDIS provider could create or possess in their capacity as a service provider independently of the NDIS Act.

46. The plaintiff’s contention is that “duties, functions and powers” in s 67G must be understood as “official” “duties, functions and powers”, i.e. duties, functions and powers created under the NDIS Act and which could not be engaged in independently of the NDIS Act.

47. Understood in this way, s 67G would not capture documents possessed by a registered NDIS provider in respect of supports and services provided to a participant. The plaintiff submitted that on his construction of the section: “most, potentially all, of the documents held by a registered NDIS provider as part of its business providing services to the participant will fall outside of the section”.

48. The plaintiff submitted that if s 67G were to be read broadly, it could capture not just registered providers but all NDIS providers, registered or not, as well as all employees and key personnel. The plaintiff says that on the defendant's analysis, arguably all such persons are carrying out duties or functions under the NDIS Act by virtue of being subject to obligations pursuant to the NDIS Code of Conduct.

49. The plaintiff submitted that the defendant’s argument that s 67G only applies to providers if they are registered and only in relation to the provision of supports and services under a plan, involves an implicit acceptance that the section must be read down to at least some extent. The plaintiff submitted that, once it is accepted that some reading down must occur, the narrower reading that he cavils for is the more coherent position.

50. The plaintiff bases his argument, in large part, on what he says to be the “remarkable” consequences that would follow if documents held by NDIS providers are protected from production under s 67G of the NDIS Act.

51. The most significant consequence is said to be that State regulators and law enforcement would be unable to access documents through ordinary mechanisms of compulsory production. For example, the police could not execute a warrant for those documents while investigating suspected criminal activity, and regulators such as SafeWork NSW would not be able to obtain documents through the exercise of their statutory investigative powers.

52. The plaintiff submitted that limiting State regulators and law enforcement in this way would be antithetical to the various objects and principles contained in ss 3 and 4 of the NDIS Act. The plaintiff drew particular attention to s 3(ga), which provides that an object of the NDIS Act is to “protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services…”.

53. The plaintiff submitted that the privacy of participants should not be treated as of paramount importance, but rather must be balanced against other guiding principles when interpreting the NDIS Act. He submitted that, while the interpretation cavilled for by the defendant would promote the privacy of people with disability to the greatest extent, the dignity of people with disability would be better served by making documents and information held by NDIS providers available to regulatory bodies and law enforcement. The plaintiff argued that if State regulators and law enforcement could not compulsorily and quickly acquire documents from registered NDIS providers, these bodies would be ‘hamstrung’ in their ability to protect NDIS participants (for example, in the event of abuse or neglect at the hands of an NDIS provider).

54. The plaintiff gave various other examples of State regulators and investigatory bodies for whom the availability of documents relating to registered NDIS providers or participants would be highly relevant, including the Health Care Complaints Commission (in relation to investigations with respect to service providers or health care professionals working for those providers), the New South Wales Civil and Administrative Tribunal (with respect to disciplinary proceedings), and the Department of Fair Trading. The plaintiff also referred to the impact the defendant’s interpretation would have on compulsory production processes available in private civil litigation, for example, in the context of a claim for negligence against a medical or allied health professional by a NDIS participant.

55. The plaintiff submitted that investigations of the kind conducted by the above-mentioned agencies are often highly time sensitive. He submitted that the pathway which the defendant proposes for obtaining relevant documents or information from NDIS providers via ss 73F(2)(i) and 67E(1)(b)(iii) (whereby an agency would be required to persuade the Commissioner of the public interest in disclosure and for the Commissioner to then compulsorily obtain the relevant material on 14 days notice to the registered NDIS provider) is too slow. The plaintiff hypothesised that, if the registered NDIS provider itself is the subject of the investigation in question, they may have an incentive to destroy documents or evidence. The plaintiff submitted that such an outcome would be antithetical to the protection of the person with a disability.

Defendant’s submissions in reply

56. The defendant made the following submissions by way of reply.

57. In response to the plaintiff’s argument regarding the transmission of information about NDIS participants to State bodies, and the ss 73F(2)(i) and 67E(1)(b)(iii) disclosure pathway being too slow, the defendant submitted that given that this is the mechanism the Commonwealth Parliament has chosen for disclosure to occur, there is no good reason for reading down s 67G simply because State law enforcement might consider that the Commonwealth regime is not optimally designed for its needs.

58. The defendant also adopted my observation that there is no evidence in these proceedings that the production of information pursuant to s 138 of the MHCIFP Act would be (or, in this case, was in fact) any faster.

59. In response to concerns regarding the regulation of a registered NDIS providers, including State regulators’ inability to properly investigate registered NDIS provider, the defendant pointed out that the NDIS Act explicitly provides for a regime that regulates and monitors the conduct of registered NDIS providers. The defendant observed that under the NDIS Act, the Commissioner is empowered to, for example, investigate (using information-gathering powers under s 55A), issue compliance notices (pursuant to s 73ZM) and infringement notices (pursuant to s 73ZL), and then bring civil penalty proceedings for breaches of the NDIS Code of Conduct.

60. The defendant observed that the NDIS Code of Conduct regulates, inter alia, the safe provision of services to a person with a disability and unfair pricing: ss 6(1)(c) and 6(2)(a)-(b) of the NDIS Code of Conduct.

61. The defendant submitted that the NDIS Act framework is a careful regime enacted by the Commonwealth Parliament to ensure that registered providers are operating safely and transparently. The defendant submitted that this framework deals with the concerns raised by the plaintiff regarding regulation and law enforcement.

Interpretation of s 67G of the NDIS Act

62. In my opinion, on a plain reading of s 67G of the NDIS Act, the construction cavilled for the defendant is to be preferred. Section 67G prohibits the compulsion of documents from a person (individual or corporate: s 2C(1) of the AI Act) in possession of those documents because of the performance or exercise of that person’s duties, functions or powers under the NDIS Act. The better view is that registered NDIS providers are performing functions and duties under the NDIS Act in providing the services and supports for which they are registered. Accordingly, documents created or possessed by a person in the course of providing such services and supports are therefore protected from production under s 67G of the NDIS Act.

63. This conclusion coheres with the ordinary meaning conveyed by the text of the provision, and is supported by a number of factors in the statutory context of the NDIS Act:

64. Part 2 of Chapter 4 of the NDIS Act deals with matters relating to privacy. Divisions 1 and 2 of Part 2 of Chapter 4 deal with information held by the National Disability Agency and the National Disability Insurance Scheme Quality and Safeguards Commission respectively. Division 3, in which s 67G appears, deals with information generally.

65. NDIS plans (and NDIS registered providers) are created by the NDIS Act and therefore the provision of supports and services by registered providers pursuant to a plan are functions “under” the NDIS Act. In this context “under” is synonymous with “pursuant to”.

66. The NDIS Act imposes obligations on registered NDIS providers which are enforceable by way of a civil penalty. Therefore, in performing these obligations (such as complying with the NDIS Code of Conduct), registered providers are performing “duties” under the NDIS Act.

67. Put another way, the role of a NDIS registered provider under the NDIS Act is to provide the supports and services for which they are registered. The role of the NDIS provider is indicative of the function of the NDIS provider: see Smith v Victorian Police (2012) 36 VR 97; [2012] VSC 374 at [47]-[51] per Ferguson J as her Honour then was. Therefore, in my opinion, a registered NDIS provider is performing a function under the NDIS Act when providing those services and supports.

68. The structure of the NDIS Act, including the “Objects of Act” (at s 3), the “General principles guiding actions under this Act” (at s 4), and the “General principles guiding actions of people who may do acts or things on behalf of others of the Act” (at s 5) make clear that there is a discrete statutory architecture for the delivery of supports and services to persons with a disability, who are often vulnerable in the community, and whose privacy and dignity must be respected. Further, s 6(1)(b) of the NDIS Code of Conduct Rules, with which a registered NDIS provider must comply (s 73F(2)(b)), states that “[i]n providing supports or services to people with a disability, a Code-covered person must respect the privacy of people with disability”.

69. I observe also that when s 67G in its current form was proposed to be inserted into the NDIS Act, the Explanatory Memorandum to the NDIS Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (which I have regard to in accordance with s 15AB(1)(a) of the AI Act) stated at [42]:-

“A large amount of personal information will likely be acquired by the Commission through the performance of its functions, and the protection of that information and a person’s right to privacy is considered paramount.”

[emphasis added]

65. The Explanatory Memorandum said this about s 67G at [65]:-

“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.”

66. I glean from the Explanatory Memorandum that the Commonwealth Parliament went to great lengths to establish the statutory framework in which s 67G is situate. Parliament was aware that the provision of supports and services by registered providers would create an abundance of personal information about vulnerable participants and created a significant framework protecting a participant’s right to privacy.

67. The NDIS Act is structured so that the Commission is the gatekeeper of a participant’s information. This adds an important additional layer to the protection of a participant’s privacy. The strictness with which the Commission can share information about a participant pursuant to s 67E of the NDIS Act is consistent with the objects and principles of the NDIS Act, and the Explanatory Memorandum.

68. Taking all of these factors into account, I am of the view that the defendant’s argument with respect to the interpretation of s 67G is consistent with the text of the section, its statutory context and the broader purposes and structure of the NDIS Act.

69. I am fortified in my conclusion by the comments of Pearce J in Tasmania v TJG [2021] TASSC 47 where his Honour, at [12], declined to make an order requiring an NDIS provider to produce documents to the Court on the application of a criminal accused, as he was prohibited from ordering production by operation of the provisions of the NDIS Act. His Honour held that contextually, s 67G was not confined in its operation to persons within the Agency or the Commission and extended to all persons, relevantly in that case to a registered NDIS provider “Family Based Care”. His Honour held at [15]:-

“…Section 67G is drafted in very broad terms. The question I must ask is whether, if they exist, documents relating to the care planning and care delivery by Family Based Care to the complainant are in its possession because of the exercise of its functions as a registered provider of supports to the complainant in accordance with the plan in place for him as a participant in the NDIS. I have concluded that the question may only be answered in the affirmative. If there is a document relating to care plan or care delivery, it is in possession of Family Based Care because of the exercise of its duties, functions and powers under the Act. Section 67H preserves the entitlement to make such information the subject of an application under the Freedom of Information Act 1982 (Cth). However, otherwise I have concluded that s 67G prohibits an order requiring production of the documents requested.”

70. 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 the performance of those duties, functions and powers are captured by s 67G of the NDIS Act and are protected from compulsory production.

The consequences raised by the plaintiff

71. I intend to respond briefly to the “remarkable consequences” that the plaintiff contends would follow from the interpretation of s 67G that I intend to adopt. Those apparent consequences are set out in paragraphs [50]-[55] of this judgment, and largely concern the barriers that such an interpretation poses for State regulatory bodies and law enforcement. For the following reasons, I do not accept that the consequences raised by the plaintiff are so unlikely or extreme as to require an interpretation of s 67G other than that which I have found aligns with the text, context and purpose of that section and the NDIS Act.

72. First, if a State body requires documents from a registered NDIS provider, there is a mechanism in the NDIS Act which enables those documents to be provided to that State body by the Commission provided that a “public interest test” is met. This mechanism is found in ss 67E and 73F of the NDIS Act. I set both sections out in their entirety:-

67E Disclosure of information by Commissioner

(1) Despite sections 67B, 67D and 67G, the Commissioner may:

(a) if the Commissioner is satisfied on reasonable grounds that it is in the public interest to do so in a particular case or class of cases—disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her powers under this Act to such persons and for such purposes as the Commissioner determines; or

(b) disclose any such information:

(i) to the Secretary of a Department of State of the Commonwealth, or to the head of an authority of the Commonwealth, for the purposes of that Department or authority; or

(ii) to a person who has the express or implied consent of the person to whom the information relates to collect it; or

(iii) to a Department of State of a State or Territory, or to an authority of a State or Territory, that has responsibility for matters relating to people with disability, including the provision of supports or services to people with disability; or

(iv) to the chief executive (however described) of a Department of State of a State or Territory, or to the head of an authority of a State or Territory, for the purposes of that Department or authority.

(2) In disclosing information for the purposes of paragraph (1)(a) or subparagraph (1)(b)(i), (iii) or (iv), the Commissioner must act in accordance with the National Disability Insurance Scheme rules made for the purposes of section 67F.

(3) Despite any other provision of this Part, the Commissioner may disclose protected Commission information to a participant’s nominee if the protected Commission information:

(a) relates to the participant; and

(b) is or was held in the records of the Commission.

(4) If:

(a) the Commissioner or a Commission officer is served with a summons or notice, or is otherwise subject to a requirement, under the Royal Commissions Act 1902; and

(b) in order to comply with the summons, notice or requirement, the Commissioner or Commission officer would be required to disclose information that is protected Commission information;

then despite sections 67B and 67G of this Act, the Commissioner or Commission officer must, subject to the Royal Commissions Act 1902, disclose that information. The information is taken to have been disclosed for the purposes of the Royal Commissions Act 1902 and of the Royal Commission concerned.

…

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).

73. In my view, the effect of these sections is that if a State authority required documents from a registered NDIS provider, they could request those documents from the Commissioner. The Commissioner could then require the production of those documents under s 73F(2)(i), which makes it a condition of registration that providers give the Commissioner any information on request within 14 days. I observe that this condition is enforceable as a civil penalty by virtue of s 73J of the NDIS Act. Pursuant to s 67E, the Commissioner, having obtained the information from the registered NDIS provider, may disclose it to authorities if she is satisfied that it is in the public interest to do so.

74. I observe that it may be that the Commissioner can provide information to a State authority pursuant to s 67E without applying the “public interest test” in s 67E(1)(a). Much will depend on the construction of that section and the meaning of the word “or” at the end of that section. That was not argued before me, and I make no finding one way or the other.

75. I note that s 67E(1)(b)(ii) and (3) in conjunction with s 73F(2)(i) appears to satisfy the plaintiff’s concern that a participant would not be able to access documents for the purposes of private litigation. In my opinion, the additional layers required to access documents is generally consistent with the statutory regime which protects the privacy of vulnerable individuals.

76. I observe also that whilst s 67G of the NDIS Act forbids the relevant documents from being compulsorily produced, it does not forbid the provision of documents voluntarily by the registered provider or by the participant (or that person's guardian). Further, a third party not captured under s 67G who has been provided documents by registered NDIS providers may still be compelled to produce those documents through the ordinary mechanisms (as has happened in this case).

77. Third, I note that it is not only State bodies that are empowered to regulate NDIS providers and protect NDIS participants. The NDIS Act provides for a separate regulatory and protective regime within the Act itself. For example, s 55A of the NDIS Act provides:-

Section 55A: Power of Commissioner to obtain information from other persons to ensure the integrity of the National Disability Insurance Scheme etc.

(1) If the Commissioner reasonably believes that a person, other than a prospective participant or a person receiving supports or services from an NDIS provider, has information, or has custody or control of a document, that may be relevant to one or more of the matters mentioned in subsection (2), the Commissioner may require the person to give the information, or produce the document, to the Commissioner.

(2) The matters are as follows:

(a) whether an NDIS provider is contravening or has contravened subsection 73B(2) (requirement to be a registered NDIS provider);

(b) whether a person applying for registration under subsection 73E(1) satisfies the requirements mentioned in that subsection;

(c) whether a registered NDIS provider is meeting or has met the conditions of registration mentioned in subsection 73F(1);

(d) whether an NDIS provider, a person who is or was employed or otherwise engaged by an NDIS provider or a person who is or was a member of the key personnel of an NDIS provider is complying or has complied with the requirements of the NDIS Code of Conduct;

(e) if an NDIS provider, or other person, is or was subject to a banning order—whether the provider or person is providing or has provided supports or services in contravention of the order;

(f) the functions of the Commissioner.

78. In my view, s 55A(2)(c) is of some importance in the context of this argument, as a condition of a provider’s registration is their compliance with the NDIS Code of Conduct. That Code provides for, inter alia, the provision of supports and services in a safe and competent manner. The Commissioner can investigate any breaches of the NDIS Code of Conduct by registered providers, and disclose any documents gathered as a result of that investigation through the mechanism of s 67E. Further, within the NDIS Act, ss 73ZL and 73ZM permit the Commissioner to issue infringement and compliance notices to a registered provider and bring civil penalty proceedings for failures to comply with the NDIS Act.

79. The NDIS Act thus empowers the Commissioner both to provide information to State authorities and to regulate and enforce the provision of safe services by NDIS registered providers. This contextual factor reinforces my conclusion that s 67G should be interpreted in the way that I have found.

80. In my view, the plaintiff's argument that the interpretation of s 67G which I adopt could not have been intended by the Commonwealth Parliament cannot be sustained. In my opinion, that s 67G of the NDIS Act captures documents produced by registered NDIS providers in the course of providing supports and services to NDIS participants fits entirely with the statutory scheme set out in the NDIS Act. This interpretation arises from the text of s 67G itself and is supported by its context and legislative purpose of the NDIS Act.

Determination

81. In my opinion, there is an operational inconsistency between s 138 of the MHCIFP Act and s 67G of the NDIS Act. To the extent of that inconsistency, the Commonwealth Act must prevail.

82. It is agreed that in the event of my finding the inconsistency, declaratory relief is appropriate. I am therefore prepared to grant the declaratory relief claimed by the defendant in the Summons.

83. I observe that order 6 is not pressed, and that there is an interim agreement between the parties with respect to orders 4 and 5. I will make orders to give effect to that interim agreement.

Orders

84. I make the following orders:

85. 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.

2. A declaration that s 138 of the MHCIFP Act is invalid to the extent identified in Order 1.
3. A declaration that the written orders served on Little Blue Wren Services Pty Ltd (Little Blue Wren) by a delegate of the relevant Minister on 18 October 2024, 28 January 2025, 17 April 2025 and 3 June 2025 (Section 138 Orders) are invalid.
4. The hearing and determination of prayers 4 and 5 of the notice of motion dated 13 August 2025 is adjourned pending further order of the Court.
5. The parties are to provide consent orders for the determination of prayers 4 and 5 of the notice of motion to my Associate within 7 days of the date of this judgment or, if consent orders cannot be provided, are to approach my Associate to seek a date, convenient to the Court, for further hearing of those prayers.
6. If, within the 7-day period referred to in order 5, any party seeks leave to appeal from the determination of prayers 1 to 3, the period in which order 5 is to be complied with is extended until 7 days after any application for leave to appeal and any appeal is determined.
7. The plaintiff is to pay the defendant’s costs of and incidental to the hearing on 1 and 4 September 2025.