Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability

Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability - [2023] FCA 629 - FCA 2023 case summary — Zoe

[8]

The Respondent (Afford) contravened s 73V of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) by failing to provide supports to Ms Merna Aprem in a safe and competent manner as required by s 6(c) of the NDIS Code of Conduct in s 6 of the National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth) (Code of Conduct Rules), by reason of its failure to: (a) develop and implement adequate measures in Ms Aprem's Epilepsy Management Plan (EMP) for the management of Ms Aprem's epilepsy, including as regards bathing or showering; (b) ensure that review of Ms Aprem's seizure control had taken place for the purpose of Ms Aprem's Comprehensive Health Assessment Program (CHAP); (c) ensure that an action plan was developed and implemented to address the risks posed by Ms Aprem's epilepsy for the purpose of Ms Aprem's CHAP or at all; (d) identify and implement measures to protect Ms Aprem against the risks associated with her having a seizure whilst bathing; (e) ensure that Ms Aprem was adequately supervised, or adequate alternative risk management procedures were in place, whilst bathing on 23 May 2019; (f) ensure that Ms Aprem's diagnoses and support needs were adequately documented in client records, including the "CIMS" system; and/or (g) take adequate steps to ensure that the support workers responsible for providing supports and services to Ms Aprem on 23 May 2019 were made aware of any or all of the following: (i) Ms Aprem was diagnosed with epilepsy; (ii) Ms Aprem could experience seizures; (iii) the terms of Ms Aprem's EMP and/or CHAP; and/or (iv) measures required to address the risks posed by Ms Aprem's epilepsy whilst bathing.
Afford contravened s 73J of the NDIS Act by failing to provide supports to Ms Aprem in a safe and competent manner as required by s 6(c) of the NDIS Code of Conduct in s 6 of the Code of Conduct Rules, by reason of its failure to: (a) develop and implement adequate measures in Ms Aprem's EMP for the management of Ms Aprem's epilepsy, including as regards bathing or showering; (b) ensure that review of Ms Aprem's seizure control had taken place for the purpose of Ms Aprem's CHAP; (c) ensure that an action plan was developed and implemented to address the risks posed by Ms Aprem's epilepsy for the purpose of Ms Aprem's CHAP or at all; (d) identify and implement measures to protect Ms Aprem against the risks associated with her having a seizure whilst bathing; (e) ensure that Ms Aprem was adequately supervised, or adequate alternative risk management procedures were in place, whilst bathing on 23 May 2019; (f) ensure that Ms Aprem's diagnoses and support needs were adequately documented in client records, including the "CIMS" system; and/or (g) take adequate steps to ensure that the support workers responsible for providing supports and services to Ms Aprem on 23 May 2019 were made aware of any or all of the following: (i) Ms Aprem was diagnosed with epilepsy; (ii) Ms Aprem could experience seizures; (iii) the terms of Ms Aprem's EMP and/or CHAP; and/or (iv) measures required to address the risks posed by Ms Aprem's epilepsy whilst bathing.
Afford contravened s 73J of the NDIS Act by failing to comply with the standard which specified that Ms Aprem could access supports in a safe environment which was appropriate to her needs as imposed by cl 24 of the NDIS Practice Standards at Schedule 1, Part 5 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth), by reason of its failure to: (a) identify the risk to Ms Aprem's safety when bathing posed by the door to the bathroom adjacent to her bedroom at the Woodbine property being fitted with an internally lockable doorknob which could not be unlocked from the outside; (b) take any or any adequate steps to mitigate that risk; (c) ensure that staff could readily access all areas of the Woodbine property which were occupied by Ms Aprem, including the bathroom; and/or (d) adequately supervise Ms Aprem whilst bathing on 23 May 2019.

[10]

ABRAHAM J: 1 On 23 May 2019, 20 year old Ms Merna Aprem drowned in a bathtub while in the care of the respondent, the Australian Foundation for Disability (Afford). Ms Aprem had been diagnosed with epilepsy, autism spectrum disorder and moderate to severe intellectual disability as a child. At the time of her death, she was residing at a single storey residential group home for persons with disabilities operated by Afford at Woodbine, New South Wales (Woodbine). 2 There were two other residents at the home, and two staff members on duty on the evening of her death. Neither of the staff members knew that Ms Aprem had epilepsy or suffered from seizures, neither had worked at Woodbine before and neither had completed a buddy shift at that home prior to the events in question. Ms Aprem was left in the bath in a bathroom of the Woodbine property unsupervised for approximately 25 minutes. Ms Aprem was able to lock herself in the bathroom. When the Afford staff returned to the bathroom and it became clear she was not responding, they were unable to unlock the bathroom door from the outside. They ultimately gained access to the bathroom by using a knife from the kitchen to dismantle the door handle. There were obvious inadequacies in Afford's care management planning for Ms Aprem and the implementation of its procedures and policies. 3 At that time, Afford was a registered National Disability Insurance Scheme (NDIS) provider under s 73E of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act). 4 Afford accepts that: (1) it failed to provide supports to Ms Aprem in a safe and competent manner with care and skill as required by s 6(c) of the NDIS Code of Conduct (see statement of agreed facts (SOAF) [73]-[74]); (2) it failed to ensure that Ms Aprem could access supports in a safe environment that was appropriate to her needs as set out in cl 24 of the NDIS Practice Standards (see SOAF [75]-[76]); and (3) these failures placed Ms Aprem's safety at a real and significant risk and may have caused or contributed to Ms Aprem's death (see SOAF [77]). 5 These breaches result in contraventions of ss 73J and 73V of the NDIS Act. The Commissioner of the NDIS Quality and Safeguards Commission (Commissioner) seeks declaratory relief and civil penalty orders: declaratory relief in respect of one contravention of s 73V of the NDIS Act and two contraventions of s 73J, and a civil penalty order in the amount of $400,000 in total in respect of the contraventions. 6 For the reasons below, I make the declaratory relief and civil penalty orders sought.

[11]

Statutory scheme 7 In National Disability Insurance Agency v WRMF [2020] FCAFC 79; (2020) 276 FCR 415, Flick, Mortimer and Banks-Smith JJ, before commencing on a description of the legislative scheme, observed at [138]: In dealing with legislation such as the Act, a number of particular considerations should be remembered. First, the subject matter of the NDIS legislation is unique, as is its structure: it embeds an approach to the support of persons with disability which was previously non-existent. In its structure, it does more than 'ordinary' legislation by incorporating objects and purposes. It incorporates a number of values, which are integral to the legislative scheme. …In the case of the Act, because of its particular features, the need to examine particular provisions in the wider context of the scheme as a whole is especially important. 8 I have taken the following description of the legislative scheme from the applicant's submissions, to which no issue was taken by the respondent. It accurately reflects the scheme. The summary below is obviously not exhaustive, but addresses some aspects of the scheme relevant to these proceedings. 9 The objects of the NDIS Act are identified in s 3. They relevantly include: (a) providing for the NDIS in Australia (s 3(1)(b)); (b) promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community (s 3(1)(g)); and (c) protecting and preventing people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS (s 3(1)(ga). 10 Section 3(2) provides that the objects of the NDIS Act are to be achieved by, inter alia, 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 NDIS. 11 Section 4 of the NDIS Act contains a number of general principles to guide actions under the Act. For present purposes, it is sufficient to note the following general principles: (a) people with disability and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime (s 4(3)); (b) people with disability should be supported to receive reasonable and necessary supports, including early intervention supports (s 4(5)); (c) people with disability have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation (s 4(6)); (d) reasonable and necessary supports for people with disability should: (i) support people with disability to pursue their goals and maximise their independence; (ii) support people with disability to live independently and to be included in the community as fully participating citizens; and (iii) develop and support the capacity of people with disability to undertake activities that enable them to participate in the community and in employment (s 4(11)); and (e) 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 supports to people with disability are to be promoted (s 4(15)). 12 The NDIS Quality and Safeguards Commission (the Commission) is established under s 181A of the NDIS Act. The Commissioner's functions and powers are identified in s 181D and include certain core functions in s 181E of the Act. The first of the Commissioner's core functions in s 181E(a) is to uphold the rights of, and promote the health, safety and wellbeing of, people with disability receiving supports or services, including those received under the NDIS. The Commissioner's core functions also include securing compliance with the NDIS Act through effective compliance and enforcement arrangements, including through monitoring and investigation functions conferred by Div 8 of Part 3A of Chapter 4 (s 181E(d)). Under s 181D(2), the Commissioner may, by notifiable instrument, make guidelines relating to the performance of any of their functions mentioned in s 181D(1). 13 Section 209 of the NDIS Act supplies the Minister with the power, by legislative instrument, to make rules called the "National Disability Insurance Scheme rules" (NDIS Rules) prescribing certain matters in order to carry out or give effect to the Act. 14 Section 73F(1) of the NDIS Act provides that the registration of a person as a registered NDIS provider is subject to certain conditions specified in s 73F(2), together with any conditions imposed by the Commissioner under s 73G or determined by the NDIS Rules under s 73H. Relevantly, s 73F(2) provides that the registration of a person as a registered NDIS provider is subject to: (a) a condition that the person comply with all applicable requirements of the NDIS Code of Conduct (see s 73F(2)(b)); and (b) a condition that the person comply with all applicable standards and other requirements of the NDIS Practice Standards (see s 73F(2)(c)). 15 Section 73J of the NDIS Act provides that a person contravenes that section if they are a registered NDIS provider and breach a condition to which the registration of the person is subject. 16 Section 73V(1) of the NDIS Act provides that the NDIS Rules may make provision for or in relation to a Code of Conduct that applies to either or both NDIS providers and persons employed or otherwise engaged by NDIS providers. Rules made for the purposes of s 73V(1) are known as the "NDIS Code of Conduct": s 73V(2). 17 Section 73V(3) provides that a person contravenes the section if the person is subject to a requirement under the NDIS Code of Conduct and fails to comply with the requirement. 18 Section 73T(1) provides that the NDIS Rules may make provision for or in relation to standards concerning the quality of supports or services to be provided by registered NDIS providers. Rules made for the purposes of s 73T(1) are known as the "NDIS Practice Standards": s 73T(2). 19 As noted above, under ss 73F(1) and 73F(2)(c)) it is a condition of registration that a person comply with the NDIS Practice Standards. Accordingly, a failure by a registered provider to comply with the NDIS Practice Standards will constitute a contravention of s 73J.

[14]

Factual overview 27 This matter proceeded by way of a statement of agreed facts, a copy of which is attached as annexure A. The following is only a brief overview of the relevant events. 28 The two support workers employed by Afford on the evening of Ms Aprem's death, 23 May 2019, had both commenced working for Afford in 2019. While they had worked at other Afford locations, neither had worked at Woodbine before and neither had completed a buddy shift there. Neither were aware that Ms Aprem suffered from epilepsy and nor had they seen her Epilepsy Management Plan (EMP) or Comprehensive Health Assessment Program (CHAP) prior to commencing their shifts. There were two other clients at Woodbine on the evening of 23 May 2019. 29 After Ms Aprem finished her dinner, one of the support workers assisted her to run a bath. After Ms Aprem was seated in the bath with water waist level, the support worker left the bathroom leaving her unsupervised with the door left ajar. That support worker attended to other tasks, including for other residents. When the support worker returned to the bathroom she found the bathroom door locked and Ms Aprem did not respond to knocking or calls. The door was able to be opened only by unscrewing the door handle with a knife from the kitchen. Ms Aprem was found in the bathtub unconscious with her nose and mouth submerged, and with vomit in the bathwater. The support worker called 000 after Ms Aprem was found unconscious. An ambulance arrived shortly thereafter, but Ms Aprem was unable to be revived. 30 Evidence from a series of text messages and telephone calls reflects that it was probable Ms Aprem was left unsupervised in the bath for around 25 minutes; and there was a delay of at least 22 minutes in calling 000 from the point at which the support worker identified that Ms Aprem had locked herself in the bathroom and was not responding. 31 Afford was aware of Ms Aprem's epilepsy and her need for supervision and assistance with daily tasks, including bathing. In that context, there were a number of inadequacies in its care management planning for Ms Aprem. At the time of Ms Aprem's death, Afford possessed: Ms Aprem's EMP, dated 27 December 2018; and CHAP, dated 15 March 2019, of which there were two versions - an undated version prepared by Afford staff, and the version dated 15 March 2019 prepared by Ms Aprem's General Practitioner. Each was incomplete in important respects. The computer system used by Afford to maintain records about its clients (CIMS), including with respect to their support needs, did not refer to Ms Aprem's epilepsy in either the "Disabilities" section of the "Client Dashboard", or the "Diagnosis" section of the "Participant Dashboard". The section of the "Participant Dashboard" which referred to an "Epilepsy/Seizure Plan" was also blank. 32 Afford's policy and procedure framework applicable at the time of Ms Aprem's death is relevant context to Afford's admissions in respect of Ms Aprem's care management and supervision. The relevant procedures include "Procedure - Epilepsy and Seizure Management" and "Procedure - Health Management". There was also a buddy shift checklist. That document contained an item dealing with clients with epilepsy. Afford's admissions reflect a number of aspects of the policy and procedure framework were not followed, or complied with. 33 Afford admits that it failed to: (a) develop and implement adequate measures in Ms Aprem's EMP for the management of Ms Aprem's epilepsy, including as regards bathing or showering; (b) ensure that review of Ms Aprem's seizure control had taken place for the purpose of Ms Aprem's CHAP; (c) ensure that an action plan was developed and implemented to address the risks posed by Ms Aprem's epilepsy for the purpose of Ms Aprem's CHAP or at all; (d) identify and implement measures to protect Ms Aprem against the risks associated with her having a seizure whilst bathing; (e) ensure that Ms Aprem was adequately supervised, or adequate alternative risk management procedures were in place, whilst bathing on 23 May 2019; (f) ensure that Ms Aprem's diagnoses and support needs were adequately documented in client records, including the "CIMS" system; and/or (g) take adequate steps to ensure that the support workers responsible for providing supports and services to Ms Aprem on 23 May 2019 were made aware of any or all of the following: (i) Ms Aprem was diagnosed with epilepsy; (ii) Ms Aprem could experience seizures; (iii) the terms of Ms Aprem's EMP and/or CHAP; and/or (iv) measures required to address the risks posed by Ms Aprem's epilepsy whilst bathing. 34 Afford admits that, by reason of those failures it failed to provide supports to Ms Aprem in a safe and competent manner with care and skill as required by s 6(c) of the NDIS Code of Conduct. The admitted breach of s 6(c) by Afford gives rise to a contravention of s 73V(3) and s 73J of the NDIS Act. 35 Afford also admits that it failed to: (a) identify the risk to Ms Aprem's safety when bathing posed by the door to the bathroom adjacent to her bedroom at Woodbine being fitted with an internally lockable doorknob which could not be unlocked from the outside; (b) take any or any adequate steps to mitigate that risk; (c) ensure that staff could readily access all areas of the Woodbine property which were occupied by Ms Aprem, including the bathroom; and/or (d) adequately supervise Ms Aprem whilst bathing on 23 May 2019. 36 Afford admits that by reason of the failures it failed to ensure that Ms Aprem could access supports in a safe environment that was appropriate to her needs, as set out in cl 24 of the NDIS Practice Standards. Where Afford was a registered NDIS provider (above at [3]), the admitted breach of cl 24 of the NDIS Practice Standards gives rise to a contravention of s 73J of the NDIS Act. 37 The McLeay Report and the correspondence between the Commission and Afford following Ms Aprem's death, indicate that the relevant failures were indicative of systemic failures within Afford. The McLeay Report identified that various underlying failures contributed to the incident, including: a disconnect between box ticking for compliance reporting versus processes that assist in patient care; staff did not have all of the relevant information about the clients in an accessible and secure way to meet their needs effectively; and ambiguity of responsibility for collecting and storing of information and confusion in responsibilities of staff on shift. An audit prompted by the Commission found that a number of clients had no EMP in place, noting that the audit results provided by Afford suggest that there was a significant failure within the organisation to ensure that EMPs were completed for clients with epilepsy.

[15]

Declaratory relief 38 The applicant seeks declaratory relief in terms that it identified. The respondent does not oppose declarations being made in those terms. 39 The power to grant declaratory relief pursuant to s 21 of Federal Court of Australia Act 1976 (Cth) "is a very wide one" and the court is "limited only by its discretion": Seven Network Ltd v News Ltd [2009] FCAFC 166; (2009) 182 FCR 160 at [1016], citing Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 (Forster) at 435. Three requirements need to be satisfied before making declarations: (1) the question must be a real and not a hypothetical or theoretical one; (2) the applicant must have a real interest in raising it; and (3) there must be a proper contradictor: Foster at 437-438. That a party has chosen not to oppose a grant of particular declaratory relief is not an impediment to such relief being granted by the Court: Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 at [14], [30]-[33]. Other factors relevant to the exercise of the discretion include: (a) whether the declaration will have any utility; (b) whether the proceeding involves a matter of public interest; and (c) whether the circumstances call for the marking of the Court's disapproval of the contravening conduct: ASIC v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310; (2002) 41 ACSR 561 at 571; Australian Securities and Investments Commission v Monarch FX Group Pty Ltd, in the matter of Monarch FX Group Pty Ltd [2014] FCA 1387; (2014) 103 ACSR 453 at [63]; Australian Securities and Investments Commission v Stone Assets Management Pty Ltd [2012] FCA 630; (2012) 205 FCR 120 at [42]. 40 Given the circumstances of this case, I am satisfied that the declaratory relief in the terms sought is appropriate. The matter is of public interest by reason of, inter alia, its subject matter, Afford's position, and the nature and consequences of Afford's failures. I accept the applicant's submission that the declaration is informative as to what has occurred and contains appropriate and adequate particulars of why the conduct is a contravention.

[16]

Pecuniary penalty 41 This application is to be determined under the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (RPA). Relevantly, ss 82-85 of the RPA are as follows: 82 Civil penalty orders Application for order (1) An authorised applicant may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. (2) The authorised applicant must make the application within 6 years of the alleged contravention. Court may order person to pay pecuniary penalty (3) If the relevant court is satisfied that the person has contravened the civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate. Note: Subsection (5) sets out the maximum penalty that the court may order the person to pay. (4) An order under subsection (3) is a civil penalty order. Determining pecuniary penalty (5) The pecuniary penalty must not be more than: (a) if the person is a body corporate - 5 times the pecuniary penalty specified for the civil penalty provision; and (b) otherwise - the pecuniary penalty specified for the civil penalty provision. (6) In determining the pecuniary penalty, the court must take into account all relevant matters, including: (a) the nature and extent of the contravention; and (b) the nature and extent of any loss or damage suffered because of the contravention; and (c) the circumstances in which the contravention took place; and (d) whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct. 83 Civil enforcement of penalty (1) A pecuniary penalty is a debt payable to the Commonwealth. (2) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt. 84 Conduct contravening more than one civil penalty provision (1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions. (2) However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct. 85 Multiple contraventions (1) A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character. Note: For continuing contraventions of civil penalty provisions, see section 93. (2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. 42 Noting the application of s 82(5)(a) of the RPA, the maximum penalty for each contravention is 1250 penalty units, or $262, 500, noting also that an individual penalty unit at the time of the contraventions was $210: Crimes Act 1914 (Cth) s 4AA. 43 Acknowledging that the starting point in imposing the penalty is s 82 of the RPA, as the applicant submitted, courts have applied general principles concerning the imposition of civil penalties in other regulatory contexts: for example, Electoral Commissioner of the Australian Electoral Commission v Futter [2021] FCA 876 at [22]; Commissioner of Taxation v Balasubramaniyan [2022] FCA 374 (Balasubramaniyan) at [62]-[63], [65]-[77]. 44 The primary purpose of any civil penalty regime is to ensure compliance with the statutory regime by deterring future contraventions: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (Agreed Penalties Case) at [24] and [55]. Civil pecuniary penalties are "primarily if not wholly protective in promoting the public interest in compliance [with the statute]": Agreed Penalties Case at [55], [59], [68] and [110]; also see Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599 (Pattinson) at [15]-[16], [43] and [45]. The aforementioned authorities reveal the principle object of a pecuniary penalty is deterrence. That is, specific deterrence of the contravener and, by that example, general deterrence of other would-be contraveners: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at [116]. 45 The nature of the court's task in imposing a civil penalty under s 82 of the RPA, is to impose such pecuniary penalty as the court determines to be appropriate, having regard to all relevant matters, including those set out in s 82(6) of the RPA. That process involves an intuitive or instinctive synthesis of all of the relevant factors: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 at [6]; TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; (2012) 210 FCR 277 at [145]. Instinctive synthesis is the method by which the judge identifies all the factors that are relevant to the penalty and, after weighing all of those factors, reaches a conclusion that a particular penalty is the one that should be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [37]: and see viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87; at [129]-[133], [148]-[151]. Section 82(6) sets out the factors required to be taken into consideration. In Balasubramaniyan at [93], the Court recognised that those factors are not exhaustive of what may be relevant, and the factors identified in other civil penalty contexts may also be relevant (recognising presently that there is overlap with the s 82(6) factors). The factors identified additionally include matters such as: the seriousness of the conduct; the size of the contravening company; the deliberateness of the contravention and the period over which it extended; whether further contraventions are likely; whether the contravention arose out of conduct of senior management; whether the contravenor has a corporate culture conducive to compliance as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and whether there has been co-operation with the authorities, including in the context of the proceedings. 46 The applicant also submitted the factors that may be relevant are, to a significant extent, informed by the statutory scheme in which the contravention occurs, citing Comcare v Commonwealth of Australia [2007] FCA 662; (2007) 163 FCR 2017 at [120]-[123]. There, Madgwick J observed in the context of the Occupational Health and Safety (Commonwealth Employment) Act 1991 (Cth) that principles from New South Wales authorities provided "useful, analogical, general guidance as to the approach to be taken in consideration of penalties under the Commonwealth Act". His Honour then identified those factors which, to a large extent, overlap with those referred to above, although described in the context of occupational health and safety. This adds little, given the overlap, except to illustrate how the statutory context may be relevant. 47 In any event, any list of factors is not exhaustive, and ought not to be approached as a checklist. Rather, the Court is to weigh all the relevant circumstances. In this case, that must be applied in the context of the statutory scheme under which these contraventions occurred. 48 Regard is also had to the maximum penalty. In this respect, in Markarian, the majority observed at [31] that attention to maximum penalties will almost always be required because the legislature has legislated for them; they invite comparison between the worst possible case and the case before the court at the time; and because they do provide, taken and balanced with all of the other relevant factors, a yardstick: and see Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at [155]-[156], and Pattinson at [53]. 49 The principle of totality requires the Court to make a "final check" of the penalties to be imposed on a wrongdoer, considered as a whole, to ensure that the total penalty does not exceed what is proper for the entire contravening conduct: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 at 53, citing Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. 50 I note that these proceedings are the first civil penalty proceedings brought by the Commissioner under the NDIS Act to reach a final hearing on contraventions and penalty.

[17]

Sections 84 and 85 51 There is an issue between the parties as to the application of s 84 and s 85 of the RPA. As explained above, the applicant seeks one penalty to be imposed for the contraventions of s 73J and s 73V which relate to s 6 (c) of the NDIS Code of Conduct, and another penalty for the contravention of s 73J which relates to cl 24 of the NDIS Practice Standards. The respondent submitted that there is significant overlap between the provisions and therefore only one penalty should be imposed, as otherwise what is sought involves double punishment. The respondents directed attention to s 84(2) of the RPA, recited above at [41]. It submitted that these contraventions relate to the same conduct, citing J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 365; (2000) 172 ALR 532 at [181]-[183]; Trade Practices Commission v Simpson Pope Ltd [1980] FCA 102; (1980) 30 ALR 544 at 554-555; Electoral Commissioner of Australian Electoral Commission v Wharton (No 3) [2021] FCA 742 (Wharton) at [36]. It submitted first, the respondent's conduct was the same in respect to each of the contraventions. Second, the conduct giving rise to the contraventions cannot be described as taking place at different times in relation to different people as was the case in Pope. Rather, Afford's conduct relates only to Ms Aprem's death on the night of 23 May 2019 and the sequence of events must be considered as a whole. Third, the circumstances relied upon in respect of the contraventions are not "substantially different". Applying the reasoning of Logan J in Wharton, it is not possible for the respondents conduct to contravene cl 24 of the NDIS Practice Standards without also contravening s 6(c) of the NDIS Code of Conduct. Fourth, there is an obvious overlap between declaration 3 and declarations 1 and 2, in that declarations 3(d), 1(e) and 2(e) all speak to the lack of supervision that Ms Aprem received whilst bathing on 23 May 2019. In oral submissions, the respondents also submitted, in substance, that failures to identify and mitigate environmental risks could be considered particulars of failures to identify and implement measures to protect Ms Aprem against the risks associated with her having a seizure whilst bathing. 52 The applicant accepted that the two contraventions in relation to s 6(c) of the NDIS Code of Conduct relate to the same conduct, which is the basis of it seeking only one penalty for those two contraventions: see s 84 of the RPA. However, the applicant submitted that the contravention of cl 24 of the NDIS Practice Standards is not consequent upon the "same conduct" as that term is properly understood, such that a separate penalty is appropriate and warranted. 53 The applicant submitted that when regard is had to the statutory scheme, the contraventions and the facts that give rise to them, it is apparent that the Commissioner is not seeking more than one pecuniary penalty in relation to the "same conduct" within the meaning of s 84(2) of the RPA. First, the elements of the contraventions are different, and contrary to the respondent's submission there is not "complete overlap" between ss 73J and 73V of the NDIS Act, or between s 6(c) of the NDIS Code of Conduct and cl 24 of the NDIS Practice Standards, rather, they have very different fields of operation. The matters which rendered the environment in which Ms Aprem died unsafe differed from those which gave rise to a failure to provide supports in a safe and competent manner, with care and skill. Second, the respondent has admitted contraventions of the "safe and competent" requirement in s 6(c) of the NDIS Code of Conduct, and the "safe environment" requirement in cl 24 of the NDIS Practice Standards, on grounds which are very much distinct. Third, contrary to the respondent's submission, the conduct at issue occurred at various different times. Although some aspects of the conduct relate to the night of Ms Aprem's death, other aspects involve acts and omissions that occurred at earlier times. Fourth, given the circumstances of this case, the authorities relied upon by the respondent are inapposite. It was submitted that the cases assist the applicant's case. 54 The Commissioner contends that the appropriate penalty in respect of Afford's contravention of ss 73J and 73V of the NDIS Act arising from its breach of s 6(c) of the NDIS Code of Conduct is $220,000 and the appropriate penalty in respect of the contravention of s 73J of the NDIS Act arising from breach of cl 24 of the NDIS Practice Standards is $180,000. 55 I do not accept Afford's submission that imposing separate penalties for the cl 24 contravention and s 6(c) contraventions involves double punishment. The particulars of the conduct in the cl 24 contravention, with one exception, are not covered by the s 6(c) contraventions. The provisions in the Code of Conduct, Practice Standards, and s 73V and s 74J of the NDIS Act are directed to different conduct. Section 6(c) of the NDIS Code of Conduct is concerned with the provision of supports by a provider in a safe and competent manner. The obligation applies to providers whether registered or not, and to all persons that are employed or engaged by a provider. That obligation is one that is firmly focused on the due care, safety and competence with which the provider and its staff, in fact, provide supports and services to NDIS participants. Clause 24 of the NDIS Practice Standards is concerned with ensuring that the participant can access supports in a safe environment that is appropriate to their needs. I accept the applicant's submission that although both provisions are concerned with safety, they approach it from different perspectives and for different purposes. The Code is focused on regulating the conduct of the provider or the person providing the support. The relevant provision in the Practice Standards is directed to ensuring the participant can access those supports in a safe environment. I note also that s 73J imposes obligations on registered NDIS providers through the conditions of registration to which they are subject, whereas s 73V is concerned with enforcing the Code of Conduct as such, whether or not the provider is registered. 56 The s 6 and cl 24 contraventions are not in relation to the same conduct, within the meaning of s 84(2) of the RPA. 57 I do not accept the respondent's characterisation of the conduct at [51] above. Moreover, the authorities relied on by Afford, on the facts of this case, do not support its conclusion. For example, the respondent relies on Logan J's statement in Wharton at [36] said in the context of his Honour's findings that the conduct involved discrete contraventions, that "[i]t is possible to comply with one but not the other and still yield a contravention of the other by non-compliance", as somehow creating a test that if conduct could breach both, then they are the same conduct. That statement in Wharton does not do so. The respondent's argument proceeds on an erroneous premise; that the conduct is the same conduct if the acts particularised in the cl 24 contravention, could come within the description of the particulars in the s 6(c) contravention. That is to ask the wrong question. Rather, the issue is whether the contraventions in fact, relate to the same conduct. In this case, the two contraventions are pleaded separately and relate to different conduct. With one limited exception, the particulars in the cl 24 contravention (and therefore the conduct underlying them) are not pleaded or relied upon in respect to the s 6(c) contravention. Those particulars are not taken into account in assessing the appropriate penalty in relation to the s 6(c) contravention. There is no double punishment. Afford is to have the penalty imposed in accordance with what has been pleaded and admitted to. It is therefore not liable to more than one pecuniary penalty in relation to the same conduct. 58 I accept the applicant's submission that these are separate contraventions. That said, in imposing the penalty on the cl 24 contravention, I do take into account that one of the particulars is also alleged in relation to the s 6(c) contravention, so as to ensure that there is no double punishment in respect to that aspect of the contravention.

[31]

Further consideration 77 As stated above, and as correctly acknowledged by Afford, these are plainly very serious contraventions of the NIDS Act. 78 Afford was on notice of Ms Aprem's epilepsy, that she was prone to seizures and she required supervision when bathing or showering. In respect to s 6(c) of the Code of Conduct, despite Afford plainly being on notice of Ms Aprem's condition and the risks that inevitably flowed from it, there were multiple clear and obvious failures of its management and supervision of those risks. In summary, the CHAP and the dedicated EMP, which are critical care documents, omitted basic details necessary for the proper planning and management of Ms Aprem's epilepsy; prompts in the CHAP and EMP designed to ensure Ms Aprem's epilepsy was reviewed and adequate plans were put in place went ignored; Afford's policy documents clearly identified steps that ought to have been taken when a client with epilepsy was bathing (which include supervision or other arrangements to mitigate the risks), which were not taken; that policy was actively contravened when one support worker informed another during handover on the night in question that Ms Aprem should be encouraged to take a bath; Ms Aprem's client records in the CIMS system did not disclose her condition; and the two support workers who were responsible for Ms Aprem's care on the evening of her death did not know that she had been diagnosed with epilepsy or could experience seizures, had not seen her EMP or CHAP, had not completed a buddy shift at Woodbine and were not made aware of measures to address the risks of her epilepsy while bathing. 79 Ms Aprem was left unsupervised for around 25 minutes while support workers attended to other tasks. This contravened Afford's own policy. There was only an internally lockable door on the bathroom. This is the basis of the cl 24 contravention. 80 Ms Aprem was vulnerable, as are all persons who rely on the supports in the NDIS Act. She had epilepsy, an intellectual disability and a history of behaviours that were unsafe for her and others. She needed a safe living environment. 81 Ms Aprem's mother placed her daughter in Afford's care. They are a large, well established organisation. She placed her trust in them, as she was entitled to do. She trusted that they would provide the supervision, support and safe environment her daughter needed. Afford did not provide those things. As can be seen from the factual bases of the contraventions, the multiple breaches all relate to matters that are self-evidently necessary and fundamental to ensuring Ms Aprem was supported with necessary supervision and was provided with a safe environment. 82 Affords failures placed Ms Aprem's safety at a real and significant risk and may have caused or contributed to her death. 83 As explained above, that Afford had in place policies and procedures in respect of epilepsy and seizure management does not mitigate the conduct, as these matters did not prevent the patent failures occurring in this case. There is no point having such procedures and policies if they are not complied with, as they were not in this instance. There is evidence that reflects these failures were not isolated, but indicative of systemic failures (as evident in the McLeay Report and in correspondence with the Commission during the audit prompted by it). Indeed, as the audit prompted by the Commission revealed, inter alia, there was a significant failure to ensure that EMPs were completed for clients with epilepsy. Afford completing that information and keeping it up to date is critical to the provision of care for those with the condition. This only serves to highlight the importance of deterrence in the imposition of the penalty involved. 84 The consequences that may ensue from breaches of the NDIS Code of Conduct and NDIS Practice Standards are potentially grave given the vulnerability of NDIS participants. The present case is a stark example of this. The objects of the NDIS scheme include "protecting and preventing people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS", and "promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community". The importance of NDIS providers (and persons employed or engaged by them) complying with the obligations imposed by the NDIS Act, cannot be overstated. The protective nature of ss 73V and 73J, their role in promoting high quality supports for people with disability, and the vulnerability of people with disability to harm when that support is not provided, emphasise the seriousness of breaching each of those provisions. 85 The penalties sought by the Commissioner are $220,000 for the contravention of s 73V in relation to s 6(c) of the Code of Conduct (acknowledging that a separate penalty is not sought for the s 73J contravention in relation to s 6(c) as it relates to the same conduct: s 84(2) of the RPA), and $180,000 for the contravention of s 73J in relation to cl 24 of the Practice Standards. That is sought bearing in mind the maximum penalty for each contravention, being $262, 500. 86 I have taken into account the matters advanced in mitigation as referred to above, but given the factual bases of the contravention, considered in the context of this statutory scheme, deterrence must be the dominant consideration. 87 In the context of that maximum penalty, and taking into account the relevant factors as explained above, I am satisfied that the penalties sought ought to be imposed. 88 As explained above, the contraventions in respect to s 6(c) of the NDIS Code of Conduct and cl 24 of the NDIS Practice Guidelines are separate. I am conscious in imposing the penalty, that in respect to the cl 24 contravention, there is one particular of overlap, and I have taken that into account in considering the appropriate penalty. The consideration of totality does not reduce the penalty I propose to impose.

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