National Disability Insurance Scheme (NSW Enabling) Act 2013
In ForceNSW
Jurisdiction
New South Wales
Act Number
104 of 2013
Collection
act
Plain English Summary
6/10 complexity
Authorises the NSW Minister to transfer disability‑services assets and staff from State agencies to other public agencies or non‑government providers to implement Commonwealth NDIS arrangements. It permits creation of implementation companies, compulsory staff transfers without consent, financial assistance to transferees and broad powers to vest assets, vary contracts and displace some State laws. The measure affects public sector disability agencies, their employees, transferees and the State’s finances because it changes ownership, employment arrangements and the regulatory and tax treatment of those transfers.
Mechanically, the National Disability Insurance Scheme (NSW Enabling) Act 2013 authorises and structures the transfer of disability services assets, functions and employees from New South Wales public sector agencies to other public sector agencies or to non‑government entities in order to implement the Commonwealth National Disability Insurance Scheme (NDIS). The Act: empowers the Minister to direct and effect transfers (authorised implementation) of disability services assets (s 5); permits the establishment and use of “implementation companies” to facilitate those transfers (ss 8-11); allows the Minister to transfer employees’ employment by order, including to non‑government employers without the employee’s consent (ss 13-14); provides for the vesting of assets, rights and liabilities by vesting order without conveyance (Sch 2 cl 2-3); and gives the Minister wide powers to grant or direct the grant of regulatory authorisations to new operators (s 20). The Act also contains administrative and evidentiary mechanisms (orders, certificates and conclusive determinations) to make transfers effective in law (ss 31; Sch 2 cl 8-10; Sch 2 cl 9).
The Act explicitly preserves particular outcomes and streamlines legal consequences of transfers. Proceeds from transfers to the non‑government sector belong to the State (s 12). Transfers are insulated from State taxes in most cases and may be exempted from tax liability at the Treasurer’s direction (s 21). The Act overrides or disapplies, for the purpose of implementation, certain State statutory provisions and permits regulations to identify other State laws that will be displaced (s 22). It also prevents the operation of some facilitative statutory requirements (for example, s 52A of the Conveyancing Act 1919) where a transfer contract is entered into for authorised implementation (s 25). The Act declares that matters done under it are not to be treated as breaches of contract, confidentiality, or events of default (s 26). It also removes a class of State compensation exposure arising from enactment or operation of the Act (s 27).
Current sections
Direct links to the current provisions in National Disability Insurance Scheme (NSW Enabling) Act 2013.
This Act commences on the date of assent to this Act.
3
Objects
3 Objects
3 Objects
The objects of this Act are as follows—
(a) to ensure that implementation of the National Disability Insurance Scheme of the Commonwealth is managed in a way that promotes service continuity for people receiving disability services and community care supports,
(b) to provide arrangements for the transfer of staff to promote retention of a skilled disability services workforce and continuity of services,
(c) to provide for the transfer of disability services assets to maximise the capacity of the disability services sector and ensure continuity of service while achieving value for the State.
4
Interpretation—key definitions
4 Interpretation—key definitions
4 Interpretation—key definitions
Note—
Schedule 1 contains other interpretative provisions.
In this Act—
authorised implementation means a transfer of disability services assets authorised by section 5.
disability services agency means a public sector agency of the State in which disability services assets are vested.
disability services assets means assets, rights and liabilities of a public sector agency of the State that are assets, rights and liabilities of the public sector agency in connection with the exercise of disability services functions by the public sector agency or another public sector agency of the State.
disability services employee means a person employed in a public sector agency of the State who is engaged in the exercise of disability services functions.
disability services functions means functions under disability services legislation and functions exercised in the course of or in connection with the administration or execution of disability services legislation.
disability services legislation means the following Acts and the regulations or other instruments under those Acts—
(d) any other Act prescribed by the regulations for the purposes of this definition.
NDIS arrangements means any agreement, understanding or other arrangement entered into by the State with the Commonwealth in connection with the operation of the National Disability Insurance Scheme of the Commonwealth.
s 4: Am 2014 No 41, Sch 5.7 [1].
5
Authorised implementation
5 Authorised implementation
5 Authorised implementation
(1) For the purposes of the implementation of the NDIS arrangements, disability services assets are authorised to be transferred from a public sector agency of the State to the non-government sector or from a public sector agency of the State to any other public sector agency (whether or not a public sector agency of the State).
(2) A transfer of disability services assets is for the purposes of the implementation of the NDIS arrangements if the transfer is for the purposes of facilitating or assisting in the implementation of the NDIS arrangements or for any purpose that is ancillary or incidental to or consequential on the implementation of the NDIS arrangements.
6
Provision of financial assistance
6 Provision of financial assistance
6 Provision of financial assistance
The Minister may provide financial assistance to a person in the non-government sector to whom disability services assets are transferred for the purposes of the authorised implementation.
Part 2
Facilitating the authorised implementation
Part 2 Facilitating the authorised implementation
Part 2 Facilitating the authorised implementation
7
Minister’s functions
7 Minister’s functions
7 Minister’s functions
(1) The Minister has and may exercise all such functions as are necessary or convenient for the purposes of the authorised implementation. The functions conferred on the Minister by any other provision of this Act do not limit the Minister’s functions under this section.
(2) The Minister requires the approval of the Treasurer before exercising a function under section 8 (1), 9, 10 (3), 11 (2), 13, 14 or 18 or Schedule 2. The Treasurer’s approval can be given for the exercise of such a function in a specific case or in a class of cases.
8
Manner of effecting authorised implementation
8 Manner of effecting authorised implementation
8 Manner of effecting authorised implementation
(1) The authorised implementation is to be effected as directed by the Minister and can be effected in any manner considered appropriate by the Minister.
(2) There are no limitations as to the nature of the transactions or arrangements that can be entered into or used for the purposes of the authorised implementation.
(3) The provisions of this Act for the establishment of implementation companies do not limit the nature of the legal entities or arrangements that can be used for the purposes of the authorised implementation.
9
Implementation companies
9 Implementation companies
9 Implementation companies
(1) The Minister may for the purposes of the authorised implementation establish, or direct the establishment of, companies as implementation companies in any of the following ways—
(a) the formation or acquisition by or on behalf of the State of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State,
(b) the formation or acquisition of a company as a wholly owned subsidiary company of an implementation company.
(2) An implementation company that is a public sector agency of the State may be converted from one kind of company to any other kind of company.
(3) Except by express agreement with the Minister—
(a) an implementation company is not and does not represent the State, and
(b) the debts, liabilities and obligations of an implementation company are not guaranteed by the State.
(4) The Minister may act for or on behalf of the State or an implementation company that is a public sector agency of the State in connection with the rights, privileges and benefits, and the duties, liabilities and obligations, of the State or an implementation company as the holder of shares or other securities in or issued by an implementation company.
(5) Shares and other securities in or issued by an implementation company that is a public sector agency of the State may be issued, sold or transferred in accordance with the directions of the Minister. The Minister may on behalf of the State or an implementation company that is a public sector agency of the State enter into and carry out implementation arrangements for the issue, sale or transfer of shares and other securities in or issued by an implementation company.
10
Additional functions of disability services agencies and implementation companies
10 Additional functions of disability services agencies and implementation companies
10 Additional functions of disability services agencies and implementation companies
(1) Each disability services agency and implementation company has and may exercise all such functions as are necessary or convenient for the purposes of the authorised implementation.
(2) The functions conferred by this section are in addition to any other functions that a disability services agency or an implementation company has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.
(3) The Minister may act for or on behalf of a disability services agency or an implementation company in the exercise of any of its functions for the purposes of the authorised implementation while it is a public sector agency of the State.
11
Direction and control of disability services agencies and implementation companies
11 Direction and control of disability services agencies and implementation companies
11 Direction and control of disability services agencies and implementation companies
(1) Each disability services agency and implementation company is subject to the direction and control of the Minister in the exercise of any of its functions for the purposes of the authorised implementation while it is a public sector agency of the State.
(2) The Minister may give directions for the purposes of the authorised implementation to a disability services agency and implementation company, and to the directors and other officers of a disability services agency and implementation company. Any such directions must be complied with by the disability services agency, the implementation company or the directors or other officers concerned.
(3) Directions to an implementation company (or its directors and other officers) can only be given and are only required to be complied with while the implementation company is a public sector agency of the State.
(4) The power to give directions under this section extends to directions with respect to the way in which a disability services agency or implementation company is to conduct its business and other affairs.
(5) Anything done or omitted to be done by a director or other officer of an implementation company in complying with a direction given by the Minister under this Act does not subject the director or officer personally to any action, liability, claim or demand.
(6) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.
12
Proceeds of authorised implementation
12 Proceeds of authorised implementation
12 Proceeds of authorised implementation
All proceeds of the transfer of disability services assets to the non-government sector pursuant to the authorised implementation belong to and are payable to the State.
Part 3
Arrangements for transfer of staff
Part 3 Arrangements for transfer of staff
Part 3 Arrangements for transfer of staff
13
Transfers within public sector
13 Transfers within public sector
13 Transfers within public sector
(1) The Minister may, for the purposes of the authorised implementation, by order in writing transfer the employment of a disability services employee to the employment of another public sector agency.
(2) A transfer of employment under this section does not require the consent of the person transferred.
(3) An employee whose employment is transferred under this section is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the employee had the employee remained a disability services employee.
(4) The Minister may negotiate and enter into agreements or industrial instruments concerning workplace relations for or on behalf of a public sector agency of the State in connection with the operation of this section.
14
Transfers to non-government sector employment
14 Transfers to non-government sector employment
14 Transfers to non-government sector employment
(1) The Minister may, for the purposes of the authorised implementation, enter into an agreement (a transfer agreement) with an employer in the non-government sector for the transfer of the employment of a disability services employee to the employment of that employer as the new employer of the employee.
(2) The Minister may by order in writing transfer the employment of a disability services employee to the employment of the new employer to give effect to a transfer agreement.
(3) A transfer of employment under this section does not require the consent of the person transferred.
(4) A transfer agreement must contain provision to give effect to the following requirements—
(a) the employment of a transferred employee with the new employer is to be on the same terms and conditions as applied under an industrial instrument to the employee as a disability services employee immediately before the transfer of employment,
(b) in the case of a transferred employee who is an apprentice or trainee under the Apprenticeship and Traineeship Act 2001, the new employer must apply under section 20 of that Act for approval to the transfer of the apprenticeship or traineeship to the new employer,
(c) the provisions of section 15 apply in respect of the transferred employee.
(5) A transfer agreement may specify an employment guarantee period for the transferred employee and if it does so must contain provision to give effect to the following requirements—
(a) the terms and conditions of employment of the transferred employee with the new employer under an industrial instrument cannot be varied during the employment guarantee period for the transferred employee except by agreement entered into by or on behalf of the transferred employee in accordance with any applicable industrial law,
(b) the employment of a transferred employee with the new employer cannot be terminated by the new employer during the employment guarantee period for the transferred employee, except—
(i) for serious misconduct, or
(ii) pursuant to the proper application of reasonable disciplinary procedures, or
(iii) by agreement with the employee.
(6) A transfer agreement may include provision with respect to any other matters concerning the terms and conditions of employment of the transferred employee.
15
Continuity of entitlements of transferred employees
15 Continuity of entitlements of transferred employees
15 Continuity of entitlements of transferred employees
(1) On the transfer by order under this Part of an employee’s employment from one employer (the current employer) to another employer (the new employer) the following provisions have effect—
(a) the employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which he or she was a contributor, member or employee (as an employee of the current employer) immediately before the transfer of employment and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law,
(b) the new employer is taken to be an employer for the purposes of any superannuation scheme in respect of which the employee continues as a contributor, member or employee pursuant to an entitlement under this section,
(c) the continuity of the employee’s contract of employment is taken not to have been broken by the transfer of employment, and service of the employee with the current employer (including service deemed to be service with the current employer) that is continuous service up to the time of transfer is taken for all purposes to be service with the new employer,
(d) the employee retains any rights to annual leave, sick leave, extended or long service leave accrued or accruing immediately before the transfer (except accrued leave for which the employee has, on ceasing to be an employee of the current employer, been paid the monetary value in pursuance of any other entitlement of the employee).
(2) An employee is not entitled in respect of the same period of service to claim a benefit under this section and another law or instrument.
(3) The Minister may in connection with the transfer of an employee’s employment under this Part give a certificate in writing as to the extent of the accrued rights to annual leave, sick leave, extended or long service leave that are retained by the employee under this section, and such a certificate is evidence of the matters certified.
(4) Nothing in the Long Service Leave Act 1955 prevents payment in connection with the transfer under this Part of the employment of a disability services employee to the employment of an employer in the non-government sector of the monetary value of long service leave in lieu of an entitlement to that leave accrued as a disability services employee before the transfer of the employee’s employment.
16
Operation of other laws and entitlements
16 Operation of other laws and entitlements
16 Operation of other laws and entitlements
The following provisions apply in relation to the transfer of a person’s employment under this Part—
(a) the transfer has effect despite any other law, contract or instrument under a law,
(b) the transfer does not constitute a retrenchment, redundancy or termination of employment at the initiative of the Crown or any other public sector agency,
Note—
For example, the transfer is not a termination for the purposes of clause 4 (Payment of accrued leave on termination of employment) of Schedule 3 to the Public Sector Employment and Management Act 2002.
(c) the person transferred is not entitled to any payment or other benefit by reason only of having ceased to be an employee of a public sector agency as a result of the transfer,
(d) a public sector agency is not required to make any payment to the transferred person in relation to the transferred person’s accrued rights in respect of annual leave, sick leave or extended or long service leave.
17
Operation of Commonwealth law
17 Operation of Commonwealth law
17 Operation of Commonwealth law
A provision of this Part (including a provision to the extent that it imposes or continues a term or condition of employment) has no effect to the extent of any inconsistency with any provision of the Fair Work Act 2009 of the Commonwealth or of any instrument under that Act.
Part 4
Arrangements for transfer of assets and functions
Part 4 Arrangements for transfer of assets and functions
Part 4 Arrangements for transfer of assets and functions
18
Vesting orders
18 Vesting orders
18 Vesting orders
The Minister may make vesting orders under Schedule 2 for the purposes of the authorised implementation.
19
Severance of fixtures
19 Severance of fixtures
19 Severance of fixtures
(1) The Minister may by order in writing for the purposes of the authorised implementation direct that specified fixtures to which this section applies are severed from the land on which they are situated.
(2) The effect of such an order is that the fixtures concerned are deemed to be severed from the land on which they are situated and may be dealt with as personal property separate from the land for the purposes of the authorised implementation.
(3) This section applies to fixtures that are disability services assets situated on land owned by a public sector agency of the State and that are designated by the Minister by order in writing to be fixtures to which this section applies.
(4) The severance of a fixture from land under this section does not affect the right of the fixture to be situated on that land and does not affect any right to drain water or sewage from the fixture across and through the land or to use any means of drainage of water or sewage from the fixture across and through the land.
20
Grant of relevant authorisations
20 Grant of relevant authorisations
20 Grant of relevant authorisations
(1) The Minister may give directions to a public sector agency for or with respect to the grant of any relevant authorisation to a person who becomes or who it is proposed will become the new operator of any disability services assets pursuant to the authorised implementation, including directions for or with respect to any of the following—
(a) requiring the grant of any such relevant authorisation without the necessity for the making or determination of any application,
(b) the displacement or modification of any provision of a relevant law in its application to the grant of any such relevant authorisation,
(c) the conditions or endorsements subject to which any such relevant authorisation is to be granted or that are to be attached to any such relevant authorisation.
(2) A direction may only be given under this section for the grant of a relevant authorisation that—
(a) operates to transfer or replace an existing relevant authorisation that is currently in force, and
(b) is subject to terms, conditions or endorsements that are the same (or to substantially the same effect) as those to which that existing relevant authorisation is subject.
(3) The Minister must consult with a public sector agency before giving a direction to the public sector agency under this section.
(4) A public sector agency exercising functions under a relevant law must comply with a direction of the Minister under this section.
(5) Anything done by a disability services agency in compliance with a condition or endorsement of a relevant authorisation in relation to disability services assets of which a person is the new operator is taken to have been done by the new operator for the purposes of any corresponding condition or endorsement of a relevant authorisation granted to the new operator pursuant to a direction under this section.
(6) A relevant authorisation granted to a disability services agency or to the new operator of disability services assets may not be suspended or cancelled on the ground of the conversion of the new operator to a company or on the ground of any change that has occurred in the officers or shareholders of the company as a result of that conversion or pursuant to an implementation arrangement.
(7) In this section—
grant includes issue and transfer.
new operator of disability services assets means—
(a) a public sector agency to which any disability services assets are transferred for the purposes of the authorised implementation, or
(b) a person (or the nominee of a person) in whom disability services assets are vested, or to whom disability services assets are transferred, pursuant to the authorised implementation.
(b) a vesting of assets, rights or liabilities by operation of Schedule 2 (Vesting of assets, rights and liabilities) and anything certified by the Treasurer as having been done in consequence of such a vesting (for example, the transfer or registration of an interest in land),
(c) the issue, disposal or purchase of shares or other securities in or issued by a company for the purposes of the authorised implementation,
(d) such other matters for the purposes of the authorised implementation as may be prescribed by the regulations,
(e) any transaction occurring within 6 months after completion of the authorised implementation and certified by the Treasurer to be a transaction entered into in connection with the transfer of disability services assets to the non-government sector pursuant to the authorised implementation.
State tax means application or registration fees, duty under the Duties Act 1997 or any other tax, duty, fee or charge imposed by any Act or law of the State.
(2) State tax is not payable by a public sector agency in relation to a relevant matter.
(3) State tax is not payable by a person or body (other than a public sector agency) in relation to a relevant matter to such extent (if any) as the Treasurer may direct by order in writing, either generally or in a particular case.
(4) An order may be made by the Treasurer under this section before or after the liability to pay the State tax concerned accrues.
(5) The Treasurer must give a copy of an order under this section to the Chief Commissioner of State Revenue.
22
General relationship of Act with other State legislation
22 General relationship of Act with other State legislation
22 General relationship of Act with other State legislation
(1) None of the following provisions operate to prevent, restrict or otherwise limit the carrying out of an implementation arrangement or the exercise of a function for the purposes of the authorised implementation—
(2) In the event of any inconsistency between the provisions of this Act or the regulations and a provision of any other State legislation that is prescribed by the regulations as an inconsistent provision for the purposes of this section, the provisions of this Act or the regulations (as the case may be) prevail to the extent of the inconsistency.
(3) The requirements of any other Act (whether enacted before or after this Act) for the approval by resolution of either or both Houses of Parliament (or by Act) of any act that constitutes the transfer of disability services assets for the purposes of the authorised implementation is satisfied by the enactment of this Act.
(2) An implementation arrangement requires the approval of the Treasurer before it is entered into if the implementation arrangement involves a public sector agency of the State—
(a) receiving borrowings, or
(b) entering into a joint financing arrangement, or
(c) carrying on a joint venture.
(3) The expressions borrowings, joint financing arrangement and joint venture have the same meanings as in the Government Sector Finance Act 2018.
s 23: Subst 2018 No 70, Sch 3.45.
24
Release of information by Auditor-General
24 Release of information by Auditor-General
24 Release of information by Auditor-General
Section 38 (Secrecy) of the Government Sector Audit Act 1983 does not apply to or in respect of a report or communication that the Minister authorises the Auditor-General to make to a person for the purposes of the authorised implementation or for the purposes of the audit (before or after the completion of the authorised implementation) of records relating to disability services assets transferred pursuant to the authorised implementation.
s 24: Am 2018 No 70, Sch 4.70.
25
Contracts for sale of land
25 Contracts for sale of land
25 Contracts for sale of land
Section 52A (Contracts for sale of land) of the Conveyancing Act 1919 does not apply to a contract for the sale of land that is entered into for the purposes of the authorised implementation.
26
Protection of contractual and other obligations
26 Protection of contractual and other obligations
26 Protection of contractual and other obligations
(1) This section applies to the following—
(a) the operation of this Act (including any order under this Act and anything done or omitted to be done under or for the purposes of this Act),
(b) the transfer of disability services assets for the purposes of the authorised implementation,
(c) the entering into or performance of obligations under an implementation arrangement by a public sector agency,
(d) a disclosure of information by, on behalf of or with the consent of a public sector agency for the purposes of the authorised implementation.
(2) None of the matters or things to which this section applies are to be regarded as—
(a) a breach of contract or confidence or otherwise as a civil wrong, or
(b) a breach of any instrument (including, without limitation, any provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities) or as requiring any act to be done under an instrument, or
(c) giving rise to any right or remedy by a party to a contract or other instrument, or as causing or permitting the termination of, or exercise of rights under, any contract or other instrument, or
(d) an event of default under any contract or other instrument, or
(e) giving rise to a breach of, a complaint under or an offence against a provision of an Act that prohibits or restricts the disclosure of information, or
(f) releasing a surety or other obligee wholly or in part from an obligation.
(3) This section does not affect the rights and obligations of the parties to an implementation arrangement in respect of the performance of obligations under the implementation arrangement.
(4) In this section—
instrument means an instrument (other than an instrument made under this Act) or any other document that creates, modifies or extinguishes rights or liabilities (or would do so if lodged, filed or registered in accordance with any law), and includes any judgment, order, process or other instrument issued by a court or tribunal.
27
Compensation not payable
27 Compensation not payable
27 Compensation not payable
(1) Compensation is not payable by or on behalf of the State—
(a) because of the enactment or operation of this Act, or for any consequence of that enactment or operation, or
(b) because of any statement or conduct relating to the enactment of this Act.
(2) This section does not extend to compensation payable under an implementation arrangement to a party to the implementation arrangement in connection with the performance of obligations under the implementation arrangement.
(3) In this section—
compensation includes damages or any other form of monetary compensation.
conduct includes any act or omission, whether unconscionable, misleading, deceptive or otherwise.
operation of this Act includes the operation of any notice or order under this Act and any agreement entered into under or for the purposes of this Act.
statement includes a representation of any kind—
(a) whether made verbally or in writing, and
(b) whether negligent, false, misleading or otherwise.
the State means the Crown within the meaning of the Crown Proceedings Act 1988, and includes a public sector agency of the State and an officer, employee or agent of the Crown or a public sector agency of the State.
Part 6
Miscellaneous
Part 6 Miscellaneous
Part 6 Miscellaneous
28
Delegation
28 Delegation
28 Delegation
(1) The Minister may delegate any function of the Minister under this Act except this power of delegation to any of the following—
(a) any other Minister,
(b) the Secretary or any officer of the Department of Family and Community Services,
(c) any person employed in the Public Service prescribed by the regulations.
(2) The Treasurer may delegate to the Secretary of the Treasury, or to any other person employed in the Public Service prescribed by the regulations, any function of the Treasurer under this Act except this power of delegation.
s 28: Am 2018 No 68, Sch 2.26.
29
Act to bind State and other jurisdictions
29 Act to bind State and other jurisdictions
29 Act to bind State and other jurisdictions
(1) This Act binds the State and, in so far as the legislative power of the Parliament of New South Wales permits, the other States, the Territories and the Commonwealth.
(2) Without limiting subsection (1), this Act has effect despite any privilege or immunity of the Crown in any of its capacities.
(3) This Act does not make any State or Territory, the Commonwealth, or the Crown in any of its capacities, liable to be prosecuted for an offence.
(4) A reference in this section to a State, Territory or the Commonwealth includes a reference to the Government of the State, Territory or Commonwealth.
30
Extraterritorial operation of Act
30 Extraterritorial operation of Act
30 Extraterritorial operation of Act
(1) It is the intention of the Parliament of New South Wales that the operation of this Act should, as far as possible, include operation in relation to the following—
(a) things situated in or outside the territorial limits of the State,
(b) acts, transactions and matters done, entered into or occurring in or outside the territorial limits of the State,
(c) things, acts, transactions and matters (wherever situated, done, entered into or occurring) that would, apart from this Act, be governed or otherwise affected by the law of another State, a Territory, the Commonwealth or a foreign country.
(2) Without limiting subsection (1), it is the intention of the Parliament of New South Wales that the provisions of this Act have an operation in relation to the things, acts, transactions and matters referred to in that subsection even if the rules of private international law (whether at general law or as provided by legislation) would require the application of a law other than this Act instead of the provisions of this Act.
31
Orders
31 Orders
31 Orders
(1) An order made under a provision of this Act takes effect at the beginning of the day on which it is made, unless the order otherwise provides.
(2) An order cannot provide for the order to take effect earlier than the beginning of the day on which it is made (but can provide for the order to take effect at a time on the day on which it is made that is earlier than the time at which it is made).
(3) A document purporting to be an order made under a provision of this Act is, unless the contrary is established, taken to be such an order and to have been properly made.
(4) A certificate purporting to be signed by the Minister or an officer prescribed by the regulations certifying that an order specified or referred to in the certificate is an order made under a specified provision of this Act is admissible in evidence in any legal proceedings and is evidence of the matters certified.
(5) A provision of another Act that results from an amendment made by this Act and that provides for the making of an order is deemed for the purposes of this section to be a provision of this Act (and the order is deemed to be an order made under a provision of this Act).
32
Service or giving of documents
32 Service or giving of documents
32 Service or giving of documents
(1) A document that is authorised or required by this Act or the regulations to be served on or given to any person may be served or given—
(a) in the case of a natural person—
(i) by delivering it to the person personally, or
(ii) by sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or
(iii) by sending it by facsimile transmission to the facsimile number of the person, or
(b) in the case of a body corporate—
(i) by leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or
(ii) by sending it by facsimile transmission to the facsimile number of the body corporate.
(2) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on or given to a person in any other manner.
33
Regulations
33 Regulations
33 Regulations
The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
Schedule 1
Interpretative provisions
Schedule 1 Interpretative provisions
Schedule 1 Interpretative provisions
Schedule 2
Vesting of assets, rights and liabilities
Schedule 2 Vesting of assets, rights and liabilities
Schedule 2 Vesting of assets, rights and liabilities
(Section 18)
sch 2: Am 2017 No 22, Sch 2.30.
Schedule 3
Savings, transitional and other provisions
Schedule 3 Savings, transitional and other provisions
Schedule 3 Savings, transitional and other provisions
sch 3: Am 2016 No 27, Sch 1.20.
Schedule 4
Schedule 4
Schedule 4 (Repealed)
sch 4: Rep 1987 No 15, sec 30C.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the National Disability Insurance Scheme (NSW Enabling) Act 2013.
2 Commencement
2 Commencement
2 Commencement
This Act commences on the date of assent to this Act.
3 Objects
3 Objects
3 Objects
The objects of this Act are as follows—
(a) to ensure that implementation of the National Disability Insurance Scheme of the Commonwealth is managed in a way that promotes service continuity for people receiving disability services and community care supports,
(b) to provide arrangements for the transfer of staff to promote retention of a skilled disability services workforce and continuity of services,
(c) to provide for the transfer of disability services assets to maximise the capacity of the disability services sector and ensure continuity of service while achieving value for the State.
4 Interpretation—key definitions
4 Interpretation—key definitions
4 Interpretation—key definitions
Note—
Schedule 1 contains other interpretative provisions.
In this Act—
authorised implementation means a transfer of disability services assets authorised by section 5.
disability services agency means a public sector agency of the State in which disability services assets are vested.
disability services assets means assets, rights and liabilities of a public sector agency of the State that are assets, rights and liabilities of the public sector agency in connection with the exercise of disability services functions by the public sector agency or another public sector agency of the State.
disability services employee means a person employed in a public sector agency of the State who is engaged in the exercise of disability services functions.
disability services functions means functions under disability services legislation and functions exercised in the course of or in connection with the administration or execution of disability services legislation.
The Act sets a specific internal control architecture: the Minister has broad function and direction powers (s 7(1); s 11), but certain functions require the Treasurer’s prior approval (s 7(2)). The Treasurer may issue orders on State tax treatment, and may direct public sector accounting policies for transfers (Sch 2 cl 11; s 21). The Act displaces aspects of Corporations legislation in relation to ministerial directions to implementation companies while they are public sector agencies (s 11(6)) and exempts implementation arrangements from Part 6 of the Government Sector Finance Act 2018 (s 23(1)), subject to Treasurer approval rules for arrangements involving borrowings, joint financing or joint ventures (s 23(2)).
The Act purports to operate extraterritorially to the extent permitted (s 30), binds the State and other jurisdictions to the extent permitted (s 29), and contains transitional and savings provisions dealing with the repeal of the Home Care Service Act 1988 (Sch 3 Part 2). It also records a set of specified amendments and consequential provisions in the schedules (Schs 1-3).
The official purpose is expressed in the objects: to ensure continuity of disability services during NDIS implementation, to transfer staff so as to retain a skilled workforce, and to transfer assets in a manner to maximise sector capacity and secure value for the State (s 3). Those policy aims are expressed as the rationale for the Act, but the Act implements them through the specific transfer, vesting, employment and authorisation mechanisms summarised above.
Main concepts
The Act operates on a small set of defined legal primitives that structure how transfers and implementation happen. The main statutory concepts are:
Authorised implementation: transfers authorised under s 5, defined by reference to facilitating or assisting in the NDIS arrangements or matters ancillary, incidental or consequential to that implementation (s 5(2); Sch 1 cl 3). This is the Act’s legal hook that activates the special transfer regime.
Disability services assets: broad definition in s 4 and Sch 1 cl 2, including “assets, rights and liabilities” vested in a public sector agency in connection with the exercise of disability services functions. The definition expressly captures property, choses in action, contracts and related liabilities and continues to include those assets when they are moved between public sector agencies for implementation (Sch 1 cl 2; Sch 1 cl 1 assets).
Disability services employee and disability services functions: employees and the functions they perform under specified disability services legislation (s 4). Disability services legislation is defined to include the Disability Inclusion Act 2014, Community Welfare Act 1987, Home Care Service Act 1988 and other Acts prescribed by regulation (s 4).
Implementation company: a company formed or acquired by or on behalf of the State to carry out authorised implementation functions (s 9; Sch 1 cl 1 definition). Implementation companies can be created as State‑owned companies limited by shares, and may be converted between company forms while an implementation company is a public sector agency (s 9(1)-(2)). The Minister may direct establishment, share issues, sales and transfers (s 9(5)).
Vesting orders and vesting schedule: Schedule 2 provides the statutory mechanism for vesting disability services assets in transferees by ministerial order, and lists the legal consequences of vesting (Sch 2 cl 2-3). Vesting can include interests, subject to existing trusts and encumbrances, and may specify terms, conditions and consideration (Sch 2 cl 3-5).
Transfer of employment by Ministerial order and transfer agreements: Part 3 allows transfer of employee employment either within the public sector (s 13) or to the non‑government sector via a transfer agreement and ministerial order (s 14). Transfer agreements must provide for continuity of terms and entitlements and may specify employment guarantee periods (s 14(4)-(5)); continuity of entitlements is governed by s 15.
Ministerial directions, conclusive determinations and evidentiary certificates: the Minister may give directions and such directions must be complied with (s 11(2)); determinations that particular assets are disability services assets are conclusive (Sch 2 cl 9); certificates of accrued rights and of vesting are admissible and operate evidentially (s 15(3); Sch 2 cl 8, cl 10).
Overrides and protections: the Act contains provisions that override or displace other laws for the purpose of authorised implementation. Examples include displacing certain Corporations legislation for ministerial directions to implementation companies (s 11(6)); operating despite other State Acts specified in s 22; immunity from State tax in respect of relevant matters (s 21); and protections treating acts under the Act as not giving rise to contract breaches, events of default or confidentiality breaches (s 26).
These concepts function together as a package: the Minister has broad delegated power to decide the means of implementation (s 8), to establish entities and direct agencies (ss 7, 9-11), and to implement asset and staff transfers through vesting orders and transfer orders (s 18; Sch 2; Part 3). The Act also supplies administrative supports: Treasurer approval requirements for certain specified functions (s 7(2); s 23(2)), tax and accounting directions (s 21; Sch 2 cl 11), and entries on land registers to constrain dealings (Sch 2 cl 7).
Mechanically, the Act converts what are often multi‑party commercial or employment transitions into administrative actions that are executory by ministerial order and certificate, and supplies legal consequences of those steps (for example, vesting without conveyance, preserved continuity of service under s 15, and deemed substitution of transferee in pending proceedings under Sch 2 cl 3(1)(c)). The Act therefore reframes transactions that normally require bilateral consent, registration, and negotiation into a statutory process backed by conclusive executive acts.
Who it affects
The Act identifies a concentrated set of actors who are directly empowered to act or who are directly affected by authorised implementation.
The Minister: central decision‑maker with power to direct implementation, establish companies, make transfer and vesting orders, give directions to agencies, and authorise Auditor‑General communications for implementation audits (ss 7, 8, 9, 11, 18, 24).
The Treasurer: gatekeeper for some Ministerial functions (s 7(2)), and the official who may direct State tax treatment of “relevant matters” (s 21), approve implementation arrangements involving borrowings/joint financing/joint ventures (s 23(2)), and give accounting policy directions in connection with transfers (Sch 2 cl 11). The Treasurer also receives copies of orders on State tax (s 21(5)).
Public sector agencies of the State holding disability services assets (disability services agencies): they are the sources of assets, rights and liabilities to be transferred, and are subject to Ministerial directions and to implementation arrangements (s 4 definition of disability services agency; ss 10-11; s 26). A public sector agency can also be a transferee.
Implementation companies: companies formed or acquired by the State to implement transfers. They may be public sector agencies while wholly State owned, and while so they are subject to ministerial directions and Corporations legislation displacement (s 9; s 11(6); Sch 1 cl 1 public sector agency definition).
Non‑government sector employers and operators: persons or bodies who may become “new operators” or transferees of disability services assets and employees under implementation (s 5; Sch 2 cl 1 definition of transferee; s 14). These entities may receive financial assistance from the Minister (s 6), may receive “relevant authorisations” by ministerial direction (s 20), and may become subject to vesting orders.
Disability services employees: persons employed by disability services agencies who may have their employment transferred to another public sector agency or to a non‑government employer by order, without their consent; their entitlements are treated in specific ways (ss 13-16).
Registration and regulatory authorities: bodies that keep registers or issue licences/permits and who are required by Sch 2 cl 10 and s 20 to accept certificates and comply with Ministerial directions for grants or transfers of authorisations. The Registrar‑General is specifically required to make recordings to prevent dealings in land when asked (Sch 2 cl 7).
Auditor‑General and Treasury officials: the Auditor‑General is authorised to release otherwise secret audit material for the purposes of authorised implementation (s 24); the Treasurer and specified Treasury officers are recipients of orders and may issue directions.
Indirectly affected parties include counterparties to contracts with transferor agencies (Sch 2 cl 6 permits variation of contracts by vesting order), landlords and tenants (Sch 2 cl 3 eliminates attornment requirements), and persons whose interests are recorded on land titles (Sch 2 cl 7 registration clause).
Who pays and who benefits: the State is a net actor,proceeds from transfers to the non‑government sector belong to the State (s 12). The Minister may provide financial assistance to non‑government transferees (s 6). Employees transferred to non‑government employers are protected as to continuity of entitlements (s 15), but the Act also states that transferred persons are not entitled to payments merely because of ceasing to be public sector employees (s 16(c)). The Act relieves the State of certain compensation liabilities arising from enactment and operation of the Act (s 27).
Who decides: the Minister, subject to particular requirements for Treasurer approval, decides the manner of implementation (ss 7-8). The Treasurer controls tax directives and certain approvals (s 21; s 23). Implementation arrangements may require Treasurer approval where borrowings, joint financing or joint ventures are involved (s 23(2)). Ministerial determinations about what assets comprise disability services assets are conclusive (Sch 2 cl 9).
Behavioural effects: public sector agencies are required to comply with Ministerial directions for implementation (s 11(2); s 20(4)). Implementation companies, while public sector agencies, are subject to Ministerial direction and their officers are protected from personal liability when acting under those directions (s 11(5)-(6)). Employees’ expectations about continuation of employment with equivalent terms are formally protected (s 14(4); s 15), but transfers can occur without consent (s 13(2); s 14(3)). Registration authorities must accept certification in relation to vested assets and may not charge fees in respect of registration functions performed under a vesting order (Sch 2 cl 10).
Key duties and rights
The Act imposes duties and creates rights that are largely administrative rather than criminal. The principal duties and rights are:
Ministerial duties and powers: the Minister must and may exercise functions necessary or convenient for authorised implementation (s 7(1)). The Minister may effect implementation in any manner considered appropriate and is not limited as to the nature of transactions to be used (s 8(1)-(2)). The Minister may establish implementation companies, issue and direct share dealings, and give directions to agencies, implementation companies, and their officers which must be complied with (ss 9-11).
Treasurer’s approval requirement and directions: certain Ministerial actions require Treasurer approval (s 7(2)). The Treasurer may direct taxation treatment for relevant matters by order and must be given copies of such orders (s 21(3), (5)). The Treasurer also approves implementation arrangements involving borrowings, joint financing or joint ventures (s 23(2)) and may direct public sector accounting policies for inter‑agency transfers (Sch 2 cl 11).
Obligation on agencies to comply with directions and implement orders: disability services agencies and implementation companies, while public sector agencies, are subject to Ministerial direction and control in the exercise of functions for authorised implementation (s 11(1)-(4)). Directions must be complied with (s 11(2)). Public sector agencies exercising functions under relevant laws must comply with a Ministerial direction to grant relevant authorisations for new operators (s 20(4)).
Employee transfer and continuity rights: employees transferred within or out of the public sector have continuation rights to superannuation membership, continuity of service and accrued leave entitlements (s 15(1)(a)-(d)). Transfer orders do not require employee consent (s 13(2); s 14(3)). Transfer agreements to non‑government employers must ensure terms and conditions of employment continue under applicable industrial instruments and may include specified employment guarantee periods with constraints on variation and termination (s 14(4)-(5)). The Minister can issue certificates confirming accrued leave entitlements (s 15(3)).
Rights of transferees under vesting orders: assets, rights and liabilities vest in the transferee by operation of Sch 2 cl 3(1)(a)-(b) without need for conveyance, and pending proceedings are treated as proceedings by or against the transferee (Sch 2 cl 3(1)(c)). Vesting orders may vary contracts related to assets (Sch 2 cl 6), and may include terms and consideration (Sch 2 cl 4-5). The Minister’s determinations about what comprises disability services assets are conclusive (Sch 2 cl 9).
Protections against contractual claims and confidentiality breaches: the Act provides that actions done under it are not to be regarded as breaches of contract or confidence, events of default, or release of sureties without effect (s 26(1)-(2)). This limits contractual remedies against the State or parties performing transfers or disclosure for authorised implementation, while not affecting implementation arrangement rights (s 26(3)).
Tax and registration rights and duties: public sector agencies do not pay State tax in relation to relevant matters (s 21(2)); the Treasurer can direct exemptions for non‑public sector persons (s 21(3)). Registration authorities must accept certificates and cannot charge fees for registration functions arising from vesting orders (Sch 2 cl 10(2), (4)). The Registrar‑General must, on Minister application, record land subject to transfer restrictions and refrain from registering transfers unless Ministerial consent is endorsed (Sch 2 cl 7).
Evidentiary provisions: documents purporting to be orders or certificates are presumed valid unless shown otherwise and are admissible evidence (s 31(3)-(4); Sch 2 cl 10(5); s 15(3)). This lowers practical barriers to use of the ministerial machinery.
There are also negative rights and duties: transferred employees are not entitled solely by reason of transfer to a payment or other benefit just because they ceased to be public sector employees (s 16(c)), and a transfer has effect despite any other law or contract (s 16(a)). However, a provision in this Part is of no effect to the extent inconsistent with the Commonwealth Fair Work Act 2009 (s 17), so federal industrial law may override some state arrangements.
Overall, duties are focused on execution of transfer, compliance with ministerial directions, and maintaining specific employee entitlements; rights are largely those that arise as legal effects of vesting orders, certificates and continuity protections.
Penalties and enforcement
The Act does not create a detailed penal enforcement regime. It relies primarily on administrative compulsion, evidentiary presumptions and legal consequences rather than criminal sanctions.
Compliance by agencies with Ministerial directions: the Act requires compliance with Ministerial directions given for the purposes of authorised implementation (s 11(2); s 20(4)). The statutory mechanism is compulsory and couched as an administrative obligation. The Act does not specify criminal penalties, fines or administrative pecuniary penalties for non‑compliance with those directions within the text provided. Where non‑compliance occurs, the immediate legal remedies or sanctions are those provided by other applicable laws or administrative measures, not an express offence within this Act.
Protection from personal liability and displacement of corporate law remedies: officers and directors of implementation companies are not personally liable for actions or omissions taken in complying with Ministerial directions (s 11(5)). Furthermore, section 11(6) declares the provision to be a Corporations legislation displacement provision for the purposes of Corporations Act s 5G, which means ministerial directions prevail over conflicting Corporations legislation while the implementation company is a public sector agency; this changes how corporate governance disputes are enforced and limits recourse under corporate statutes.
Evidentiary and conclusive mechanisms: the Act provides that documents purporting to be orders are presumed valid (s 31(3)), and certificates of accrued rights and vesting are admissible and conclusive (s 15(3); Sch 2 cl 8-10). These provisions reduce litigation friction and make administrative acts immediately enforceable in commercial and registration contexts, effectively enabling immediate transfer without the usual court or registrar scrutiny.
Civil consequences limited or prevented: the Act expressly states that matters done under it are not to be regarded as breach of contract or confidence, events of default, or giving rise to contractual remedies, and prohibits these being used to terminate contracts or trigger liability (s 26(2)(a)-(d), (e)-(f)). That limits the capacity for counterparties to seek contractual relief or damages for acts done pursuant to authorised implementation, but the Act preserves the rights and obligations of parties under implementation arrangements themselves (s 26(3)).
Compensation restrictions: section 27 bars claims for compensation by or on behalf of the State because of enactment or operation of the Act or statements made in its enactment (s 27(1)), although it does not affect compensation payable under implementation arrangements (s 27(2)). Compensation is defined broadly to include damages and other monetary compensation (s 27(3)). This provision reduces the State’s exposure to statutory or common law damages claims arising from the Act’s operation and related conduct.
Criminal liability for the State: the Act clarifies that it does not make the State, another State or the Commonwealth or the Crown liable to be prosecuted for an offence (s 29(3)). That is a jurisdictional limitation on prosecuting governmental entities under criminal law where actions fall within the Act’s operation.
Registration and title effects treated administratively: the Registrar‑General is to record land subject to transfer restrictions under Sch 2 cl 7 and to block registration of transfers unless Ministerial consent is endorsed. Registration authorities must accept certificates and cannot demand information in a prescribed form (Sch 2 cl 10). Failure to comply by a registration authority would raise administrative law issues; the Act requires those authorities to act and limits their ability to refuse.
Because the Act lacks express criminal offences, enforcement is largely by administrative fiat, statutory presumptions, and limitation of civil remedies available to private parties. Parties seeking redress for harms caused by actions taken under the Act would need to rely on other laws, or on rights preserved under implementation arrangements, not on newly created penalties in this Act.
How it interacts with other laws
The Act establishes multiple, sometimes pre‑emptive, interactions with State and Commonwealth laws by way of displacement, limitation, or specific carve‑outs. The statutory text carefully identifies where it overrides or yields to other laws.
Commonwealth industrial law: section 17 expressly limits the operation of Part 3 (transfer of employment) so that provisions in that Part have no effect to the extent they are inconsistent with the Fair Work Act 2009 or instruments under it (s 17). Therefore federal industrial law can nullify inconsistent state transfer provisions.
Corporations law: section 11(6) declares that the provisions of s 11 are Corporations legislation displacement provisions for the purposes of Corporations Act s 5G in relation to Corporations legislation generally. Practically, while an implementation company is a public sector agency, ministerial directions in respect of its exercise of functions for authorised implementation prevail over conflicting Corporations legislation (s 11(6)).
Specific State legislation override or displacement: section 22(1) lists Acts,Charitable Trusts Act 1993, Community Welfare Act 1987, Disability Inclusion Act 2014, Home Care Service Act 1988,whose provisions do not prevent or otherwise limit carrying out implementation arrangements (s 22(1)(a)-(d)). Section 22(2) empowers the regulations to designate other State legislation as overridden by this Act, and provides that to the extent of inconsistency the provisions of this Act prevail (s 22(2)). Section 22(3) further states that the enactment of this Act satisfies requirements for parliamentary approval of acts constituting transfers, where other Acts require such approvals, i.e., it treats this Act as the necessary legislative authorisation (s 22(3)).
Government Sector Finance Act 2018: section 23(1) removes the application of Part 6 of the Government Sector Finance Act 2018 to implementation arrangements, but preserves Treasurer approval requirements for implementation arrangements involving borrowings, joint financing arrangements or joint ventures (s 23(2)). Expressions borrowings, joint financing arrangement and joint venture are given their meanings in that Act (s 23(3)).
Tax law and State taxes: the Act exempts public sector agencies from State taxes in relation to “relevant matters” (s 21(2)) and permits the Treasurer to direct tax exemption for persons or bodies other than public sector agencies in relation to relevant matters (s 21(3)); the Treasurer may make such an order before or after the liability to pay accrues (s 21(4)). “Relevant matters” are broadly defined and include implementation arrangements, vestings under Schedule 2, share transactions, and transactions occurring within six months after completion if certified by the Treasurer (s 21(1)).
Registration and property law: Schedule 2 establishes that assets vest by operation of the vesting order without the need for conveyance, transfer or registration (Sch 2 cl 3(1)(a)). The Registrar‑General must make recordings to prevent dealings in transferred land when requested by the Minister and must not register a transfer unless the Minister’s consent is endorsed (Sch 2 cl 7). The Act also disapplies s 52A of the Conveyancing Act 1919 for contracts entered into for authorised implementation (s 25).
Confidentiality and contractual remedies: s 26 provides that matters done under the Act are not to be regarded as a breach of contract or confidence or as giving rise to remedies, defaults or termination rights. That creates a statutory limitation on civil claims arising from actions done under this Act, but s 26(3) preserves rights and obligations under implementation arrangements.
Auditor‑General secrecy: section 24 excludes section 38 (Secrecy) of the Government Sector Audit Act 1983 from applying to reports or communications the Minister authorises the Auditor‑General to make for the purposes of authorised implementation or audit of transferred records (s 24). This enables more open audit communication in the implementation context.
Interaction with Commonwealth, other States and extraterritorial application: the Act states it binds the State and, as far as legislative power permits, other States, Territories and the Commonwealth (s 29(1)). It expresses the Parliament’s intention that the Act operate extraterritorially in relation to acts and matters situated inside or outside NSW as far as possible (s 30). However, where Commonwealth law precludes certain operations (for example, the Fair Work Act), those Commonwealth provisions prevail to the extent of inconsistency (s 17).
Overall, the Act creates an administrative overlay that in many respects supersedes State statutory constraints and private contractual mechanisms, subject to specified Commonwealth law exceptions (especially industrial law) and Treasurer approval requirements for certain financial arrangements. The Act also imposes duties on registration and regulatory authorities to accept certificates and comply with Ministerial directions in relation to authorisations and vestings (s 20; Sch 2 cl 10). Practitioners must therefore assess interactions across corporate law, registration practice, tax, industrial relations and property law when advising on implementation arrangements.
Amendment history
The version of the Act supplied contains internal amendment annotations. The Act has been amended at various points; the following annotations appear in the source text and indicate later changes or insertions:
Section 4: annotated “Am 2014 No 41, Sch 5.7 [1]” indicating amendments to the interpretation provisions occurred in 2014 by Schedule 5.7 of Act No 41 of 2014 (s 4).
Section 22: annotated “Am 2014 No 41, Sch 5.7 [2]”, indicating that s 22 was amended by the same 2014 instrument (s 22).
Section 23: annotated “Subst 2018 No 70, Sch 3.45”, which shows that s 23 was substituted by Schedule 3.45 of Act No 70 of 2018 (Government Sector Finance Act 2018 amendments).
Section 24: annotated “Am 2018 No 70, Sch 4.70”, showing an amendment to s 24 effected in 2018.
Section 28: annotated “Am 2018 No 68, Sch 2.26”, indicating the delegation provisions were amended by Act No 68 of 2018.
Schedule 2 header: annotated “sch 2: Am 2017 No 22, Sch 2.30”, indicating amendments to Schedule 2 in 2017 by Act No 22.
Schedule 3 header: annotated “sch 3: Am 2016 No 27, Sch 1.20”, indicating amendments to Schedule 3 arising from the Statute Law (Miscellaneous Provisions) Act 2016 (Act No 27).
Schedule 4 header notes that Schedule 4 was repealed (Rep 1987 No 15, sec 30C).
These annotations demonstrate the Act has been subject to post‑enactment modification, notably in 2014, 2016, 2017 and 2018, affecting interpretative definitions, administrative delegations, vesting provisions, and interactions with Government Sector Finance arrangements. The Act’s schedules incorporate changes consequential on repeal of earlier Acts (for example Schedule 3 Part 2 addresses repeal of the Home Care Service Act 1988).
The source text does not provide a consolidated history beyond these annotations, and it does not supply the full instruments of amendment or the exact textual changes effected by each amending instrument. Practitioners should consult the consolidated Act and the amending instruments cited (for example, Act numbers and schedules referenced) for precise amendment texts and the dates those changes took effect, as the annotations indicate the existence but not the substance of amendments.
Litigation history
The provided legislative text contains no judicial decisions, references to litigation, or reported cases interpreting its provisions. The Act’s text contains evidentiary presumptions and conclusive determinations (for example, Sch 2 cl 9 and s 31(3)-(4)) that are designed to reduce immediate challenges to administrative acts, but the source material does not record any litigation arising from those provisions, nor does it list cases construing the Act.
Accordingly, there is no litigation history included in the material supplied. Any matters taken to court or tribunal after the enactment and amendment of this Act are not present in the text. Practitioners looking for case law should search legal databases, court reports and the consolidated Act with annotations that may list cases or judicial treatment subsequent to the dates of the amendments annotated in the source (for example, post‑2014, 2016, 2017 and 2018).
Absent case law in the source, the statutory presumptions and displacement mechanics (for example, vesting without conveyance, conclusive determinations as to what are disability services assets, and Corporations legislation displacement) are likely to be focal points for disputes if litigation occurs. The Act’s provisions limiting access to contractual remedies (s 26) and compensation claims (s 27) may also be contested in future proceedings, but the source does not report any such contests.
Gotchas
The Act contains several provisions that create significant legal and operational effects which may be surprising if read casually. Key “gotchas” drawn from the statutory text are:
Transfers of employees without their consent: both intra‑public sector transfers (s 13) and transfers to non‑government employers (s 14) may occur by Ministerial order “without the consent of the person transferred” (s 13(2); s 14(3)). Although continuity of entitlements is provided for (s 15), employees do not have a statutory right to refuse a transfer under this Act.
Limited recourse for counterparties and sureties: s 26(2) states that matters done under the Act are not to be regarded as a breach of contract or confidence, an event of default, or as giving rise to rights or remedies or causing termination of contracts. That means counterparties cannot automatically rely on typical contractual events of default or termination in response to transfers authorised by the Act. Section 26(3) preserves rights under implementation arrangements, so bespoke contractual protections must be negotiated into those arrangements.
Vesting without conveyance and presumption of validity: Schedule 2 cl 3 provides that assets vest in a transferee by virtue of the clause “without the need for any conveyance, transfer, assignment or assurance” (Sch 2 cl 3(1)(a)). Section 31(3) states a document purporting to be an order is, unless the contrary is established, taken to be such an order. These provisions facilitate rapid transfers but can create evidentiary complexities for third parties who may rely on title registers and typical conveyancing processes.
Ministerial determinations are conclusive: Sch 2 cl 9 allows the Minister to determine whether particular assets, rights or liabilities comprise disability services assets, and declares such determinations to be conclusive as to the matters determined. That reduces opportunities to challenge the scope of assets subject to vesting orders via ordinary administrative appeals.
Restrictions on dealing with vested land: Sch 2 cl 7 permits the Minister to require that vested land is subject to a restriction on dealings, and the Registrar‑General must make an entry to that effect; transfers are blocked unless the Minister’s consent is endorsed (Sch 2 cl 7(2)-(4)). This can immobilise title dealings unless the Minister consents.
Displacement of Corporations law and protection of officers: s 11(6) displaces Corporations legislation in relation to the Minister’s power to give directions to implementation companies that are public sector agencies, and s 11(5) shields directors and officers from personal action, liability, claim or demand for complying with Ministerial directions. This reduces directors’ conventional duties exposure but also limits arguments based on corporate governance norms where implementation companies are State‑owned.
Tax and registration anomalies: public sector agencies are exempt from State taxes for relevant matters (s 21(2)), and the Treasurer can extend exemptions to non‑public sector bodies (s 21(3)). Registration authorities must accept Ministerial certificates and cannot require particular forms (Sch 2 cl 10(2)-(3)), and cannot charge fees for functions in connection with vesting (Sch 2 cl 10(4)). Third parties should not assume standard stamp duty, registration fees or processes will apply.
Limited compensation and barred claims: s 27(1) states compensation is not payable by or on behalf of the State because of enactment or operation of this Act, nor because of statements or conduct relating to enactment. Compensation under implementation arrangements is saved (s 27(2)), but general claims against the State for loss caused by the operation of the Act are statutorily barred.
Inconsistency with Commonwealth law: Part 3 transfer provisions have no effect to the extent inconsistent with the Fair Work Act 2009 (s 17). Practitioners must therefore test any transfer arrangements for Commonwealth inconsistency risk.
Wide discretion and limited statutory constraints: s 8 gives the Minister freedom to effect implementation “in any manner considered appropriate” and explicitly states there are no limitations as to the nature of transactions or arrangements that can be used (s 8(2)). While Treasurer approvals are required for some functions (s 7(2)), the Minister’s discretion is wide and administrative in nature.
Evidence and registration practicalities: documents purporting to be orders and certificates are judicially admissible and prima facie valid unless disproved (s 31(3)-(4); Sch 2 cl 10(5)). Registration authorities are required to accept certificates and not charge fees (Sch 2 cl 10). That can speed processes but also makes reversing or challenging transfers procedurally difficult.
These features collectively mean that transfers effected under the Act proceed under a statutory engine designed for speed, conclusivity and administrative efficiency, but which narrows some traditional legal avenues for third parties, employees and creditors. Practitioners must be alert to the interplay with Commonwealth law, the limited compensation exposure, evidentiary presumptions, and the need to place key protections into implementation arrangements where the Act preserves such contractual rights (s 26(3); s 27(2)).
How to comply
To operationalise compliance with the Act’s framework, public sector agencies, implementation companies, transferees and advisers should adopt a structured checklist aligned to the Act’s statutory steps and evidential requirements. Key compliance actions and checks include:
Identify disability services assets and functions
Map assets, rights and liabilities that may constitute “disability services assets” as defined (s 4; Sch 1 cl 2). Remember that the Minister’s determination that an asset is a disability services asset is conclusive for vesting purposes (Sch 2 cl 9). Document the rationale and supporting records so determinations and certificates align with ministerial actions.
Ministerial and Treasurer approvals
Determine which actions require Treasurer approval under s 7(2) (functions under specified sections and Schedule 2), and where implementation arrangements involve borrowings, joint financing or joint ventures trigger Treasurer approval under s 23(2). Obtain written Treasurer approvals where mandated, and maintain records of such approvals.
Design implementation arrangements and transfer agreements
For transfers to non‑government employers, draft transfer agreements to comply with statutory minimums: ensure employment terms remain those applying immediately prior to transfer (s 14(4)(a)), manage apprentices/trainees under the Apprenticeship and Traineeship Act 2001 where applicable (s 14(4)(b)), and ensure section 15 continuity protections apply (s 14(4)(c)). If an employment guarantee period is included, ensure the agreement contains the restrictions on variation and termination in s 14(5).
Employee entitlements and certificates
Preserve continuity of superannuation, continuous service, and accrued leave per s 15(1)(a)-(d). Arrange for the Minister to issue certificates where appropriate to evidence accrued leave and related rights (s 15(3)). Record and communicate the impact of s 16(c) which disclaims entitlement to payments solely because of ceasing public employment.
Use of vesting orders and Schedule 2 procedures
Prepare vesting orders consistent with Sch 2 cl 2-5: specify the transferee(s), any conditions, interests being created, variation of contracts (Sch 2 cl 6), and consideration or valuation if required (Sch 2 cl 5). If land is vested and the Minister intends to constrain dealings, apply to the Registrar‑General for a recording under Sch 2 cl 7; ensure forms for endorsement of Minister’s consent are prepared.
Registration authorities and certificates
Where registration is required, use the certificate mechanism in Sch 2 cl 10 to lodge with registration authorities. Ensure certificates contain the information the registration authority reasonably requires; registration authorities are required to accept and act on such certificates and cannot demand particular forms (Sch 2 cl 10(2)-(3)). Take advantage of the fee waiver in Sch 2 cl 10(4).
Tax and accounting
Consult Treasury early about State tax treatment and obtain a Treasurer order under s 21(3) where necessary for non‑public sector transferees. If transfers are inter‑agency, seek Treasurer directions on accounting policy under Sch 2 cl 11 to ensure compliance with public sector accounting requirements.
Regulatory authorisations and licensing
Where a new operator requires authorisations under other State laws, obtain and document Ministerial directions under s 20 to require grant of authorisations, possibly without application. Ensure any displaced or modified application of relevant law meets the constraints in s 20(2) that require the new authorisation to transfer or replace an existing authorisation and to be subject to substantially the same terms.
Corporate governance and implementation companies
If forming implementation companies, document the company form, share holdings, and any Ministerial directions. Note that while implementation companies are public sector agencies, ministerial directions prevail over Corporations legislation for those activities (s 11(6)), and officers are protected from personal liability for acts in compliance with directions (s 11(5)). Ensure internal legal advice addresses the governance implications of those provisions.
Contracts and counterparties
Where contracts will be varied by vesting orders (Sch 2 cl 6), ensure contract variations are recorded in vesting orders and that affected suppliers, contractors and counterparties are informed. Include appropriate provisions in implementation arrangements to preserve necessary rights and to provide for compensation under the implementation arrangement if applicable (s 26(3); s 27(2)).
Communication, records and audit
The Minister may authorise the Auditor‑General to release information otherwise caught by secrecy provisions for implementation and audit (s 24). Prepare records and information flows to support such authorised audits, and retain evidence supporting ministerial decisions, certificates and valuations.
Addressing employee and stakeholder concerns
Although transfers may be effected without consent, provide clear communications to employees regarding continuity of entitlements (s 15), any employment guarantee period (s 14(5)), and the limits on payments due solely to ceasing public employment (s 16(c)). Use implementation agreements to create bespoke safeguards where the Act allows contractual protection (s 26(3); s 27(2)).
Legal review for Commonwealth consistency and industrial law risk
Examine transfer arrangements for potential inconsistency with the Fair Work Act 2009 and instruments under it since state transfer provisions are of no effect to the extent of inconsistency (s 17). Seek advice on whether particular transfers might be caught by “transfer of business” provisions under federal law or generate claims under federal industrial mechanisms.
Ministerial orders, evidence and presumptions
Ensure all ministerial orders and certificates are properly drafted, dated, signed and published if necessary. The Act presumes the validity of documents purporting to be orders (s 31(3)) and makes certificates admissible (Sch 2 cl 10(5); s 15(3)). Treat those documents as primary legal instruments in execution and registration.
Risk management and contingency planning
Because the Act limits compensation and civil claims in many cases (s 26; s 27), design implementation arrangements that allocate financial risk expressly. Where the State intends to provide financial assistance (s 6), document the conditions, timing and recourse for such assistance.
Following these steps will align operational activity with the Act’s statutory machinery. Because many of the Act’s effects turn on ministerial orders, Treasury directions and certificates, close coordination among the Minister’s office, Treasury, agency legal teams, HR and property/asset management is essential. Where the Act permits contractual protection via implementation arrangements, those arrangements are the primary mechanism for preserving or allocating rights and liabilities that the Act otherwise displaces or limits; ensure they are negotiated and documented with attention to the statutory constraints and to any required approvals.
disability services legislation means the following Acts and the regulations or other instruments under those Acts—
(a) Disability Inclusion Act 2014,
(b) Community Welfare Act 1987,
(c) Home Care Service Act 1988,
(d) any other Act prescribed by the regulations for the purposes of this definition.
NDIS arrangements means any agreement, understanding or other arrangement entered into by the State with the Commonwealth in connection with the operation of the National Disability Insurance Scheme of the Commonwealth.
s 4: Am 2014 No 41, Sch 5.7 [1].
5 Authorised implementation
5 Authorised implementation
5 Authorised implementation
(1) For the purposes of the implementation of the NDIS arrangements, disability services assets are authorised to be transferred from a public sector agency of the State to the non-government sector or from a public sector agency of the State to any other public sector agency (whether or not a public sector agency of the State).
(2) A transfer of disability services assets is for the purposes of the implementation of the NDIS arrangements if the transfer is for the purposes of facilitating or assisting in the implementation of the NDIS arrangements or for any purpose that is ancillary or incidental to or consequential on the implementation of the NDIS arrangements.
6 Provision of financial assistance
6 Provision of financial assistance
6 Provision of financial assistance
The Minister may provide financial assistance to a person in the non-government sector to whom disability services assets are transferred for the purposes of the authorised implementation.
Part 2 Facilitating the authorised implementation
Part 2 Facilitating the authorised implementation
Part 2 Facilitating the authorised implementation
7 Minister’s functions
7 Minister’s functions
7 Minister’s functions
(1) The Minister has and may exercise all such functions as are necessary or convenient for the purposes of the authorised implementation. The functions conferred on the Minister by any other provision of this Act do not limit the Minister’s functions under this section.
(2) The Minister requires the approval of the Treasurer before exercising a function under section 8 (1), 9, 10 (3), 11 (2), 13, 14 or 18 or Schedule 2. The Treasurer’s approval can be given for the exercise of such a function in a specific case or in a class of cases.
8 Manner of effecting authorised implementation
8 Manner of effecting authorised implementation
8 Manner of effecting authorised implementation
(1) The authorised implementation is to be effected as directed by the Minister and can be effected in any manner considered appropriate by the Minister.
(2) There are no limitations as to the nature of the transactions or arrangements that can be entered into or used for the purposes of the authorised implementation.
(3) The provisions of this Act for the establishment of implementation companies do not limit the nature of the legal entities or arrangements that can be used for the purposes of the authorised implementation.
9 Implementation companies
9 Implementation companies
9 Implementation companies
(1) The Minister may for the purposes of the authorised implementation establish, or direct the establishment of, companies as implementation companies in any of the following ways—
(a) the formation or acquisition by or on behalf of the State of a company limited by shares, so that all the issued shares in the company are held by or on behalf of the State,
(b) the formation or acquisition of a company as a wholly owned subsidiary company of an implementation company.
(2) An implementation company that is a public sector agency of the State may be converted from one kind of company to any other kind of company.
(3) Except by express agreement with the Minister—
(a) an implementation company is not and does not represent the State, and
(b) the debts, liabilities and obligations of an implementation company are not guaranteed by the State.
(4) The Minister may act for or on behalf of the State or an implementation company that is a public sector agency of the State in connection with the rights, privileges and benefits, and the duties, liabilities and obligations, of the State or an implementation company as the holder of shares or other securities in or issued by an implementation company.
(5) Shares and other securities in or issued by an implementation company that is a public sector agency of the State may be issued, sold or transferred in accordance with the directions of the Minister. The Minister may on behalf of the State or an implementation company that is a public sector agency of the State enter into and carry out implementation arrangements for the issue, sale or transfer of shares and other securities in or issued by an implementation company.
10 Additional functions of disability services agencies and implementation companies
10 Additional functions of disability services agencies and implementation companies
10 Additional functions of disability services agencies and implementation companies
(1) Each disability services agency and implementation company has and may exercise all such functions as are necessary or convenient for the purposes of the authorised implementation.
(2) The functions conferred by this section are in addition to any other functions that a disability services agency or an implementation company has apart from this section and those other functions do not prevent or otherwise limit the exercise of the additional functions conferred by this section.
(3) The Minister may act for or on behalf of a disability services agency or an implementation company in the exercise of any of its functions for the purposes of the authorised implementation while it is a public sector agency of the State.
11 Direction and control of disability services agencies and implementation companies
11 Direction and control of disability services agencies and implementation companies
11 Direction and control of disability services agencies and implementation companies
(1) Each disability services agency and implementation company is subject to the direction and control of the Minister in the exercise of any of its functions for the purposes of the authorised implementation while it is a public sector agency of the State.
(2) The Minister may give directions for the purposes of the authorised implementation to a disability services agency and implementation company, and to the directors and other officers of a disability services agency and implementation company. Any such directions must be complied with by the disability services agency, the implementation company or the directors or other officers concerned.
(3) Directions to an implementation company (or its directors and other officers) can only be given and are only required to be complied with while the implementation company is a public sector agency of the State.
(4) The power to give directions under this section extends to directions with respect to the way in which a disability services agency or implementation company is to conduct its business and other affairs.
(5) Anything done or omitted to be done by a director or other officer of an implementation company in complying with a direction given by the Minister under this Act does not subject the director or officer personally to any action, liability, claim or demand.
(6) The provisions of this section are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of the Corporations legislation generally.
12 Proceeds of authorised implementation
12 Proceeds of authorised implementation
12 Proceeds of authorised implementation
All proceeds of the transfer of disability services assets to the non-government sector pursuant to the authorised implementation belong to and are payable to the State.
Part 3 Arrangements for transfer of staff
Part 3 Arrangements for transfer of staff
Part 3 Arrangements for transfer of staff
13 Transfers within public sector
13 Transfers within public sector
13 Transfers within public sector
(1) The Minister may, for the purposes of the authorised implementation, by order in writing transfer the employment of a disability services employee to the employment of another public sector agency.
(2) A transfer of employment under this section does not require the consent of the person transferred.
(3) An employee whose employment is transferred under this section is (until other provision is duly made under any Act or law) to be employed in accordance with any relevant statutory provisions, awards, agreements and determinations that would have applied to the employee had the employee remained a disability services employee.
(4) The Minister may negotiate and enter into agreements or industrial instruments concerning workplace relations for or on behalf of a public sector agency of the State in connection with the operation of this section.
14 Transfers to non-government sector employment
14 Transfers to non-government sector employment
14 Transfers to non-government sector employment
(1) The Minister may, for the purposes of the authorised implementation, enter into an agreement (a transfer agreement) with an employer in the non-government sector for the transfer of the employment of a disability services employee to the employment of that employer as the new employer of the employee.
(2) The Minister may by order in writing transfer the employment of a disability services employee to the employment of the new employer to give effect to a transfer agreement.
(3) A transfer of employment under this section does not require the consent of the person transferred.
(4) A transfer agreement must contain provision to give effect to the following requirements—
(a) the employment of a transferred employee with the new employer is to be on the same terms and conditions as applied under an industrial instrument to the employee as a disability services employee immediately before the transfer of employment,
(b) in the case of a transferred employee who is an apprentice or trainee under the Apprenticeship and Traineeship Act 2001, the new employer must apply under section 20 of that Act for approval to the transfer of the apprenticeship or traineeship to the new employer,
(c) the provisions of section 15 apply in respect of the transferred employee.
(5) A transfer agreement may specify an employment guarantee period for the transferred employee and if it does so must contain provision to give effect to the following requirements—
(a) the terms and conditions of employment of the transferred employee with the new employer under an industrial instrument cannot be varied during the employment guarantee period for the transferred employee except by agreement entered into by or on behalf of the transferred employee in accordance with any applicable industrial law,
(b) the employment of a transferred employee with the new employer cannot be terminated by the new employer during the employment guarantee period for the transferred employee, except—
(i) for serious misconduct, or
(ii) pursuant to the proper application of reasonable disciplinary procedures, or
(iii) by agreement with the employee.
(6) A transfer agreement may include provision with respect to any other matters concerning the terms and conditions of employment of the transferred employee.
15 Continuity of entitlements of transferred employees
15 Continuity of entitlements of transferred employees
15 Continuity of entitlements of transferred employees
(1) On the transfer by order under this Part of an employee’s employment from one employer (the current employer) to another employer (the new employer) the following provisions have effect—
(a) the employee is entitled to continue as a contributor, member or employee for the purposes of any superannuation scheme in respect of which he or she was a contributor, member or employee (as an employee of the current employer) immediately before the transfer of employment and remains so entitled subject to any variation to that entitlement made either by agreement or otherwise in accordance with law,
(b) the new employer is taken to be an employer for the purposes of any superannuation scheme in respect of which the employee continues as a contributor, member or employee pursuant to an entitlement under this section,
(c) the continuity of the employee’s contract of employment is taken not to have been broken by the transfer of employment, and service of the employee with the current employer (including service deemed to be service with the current employer) that is continuous service up to the time of transfer is taken for all purposes to be service with the new employer,
(d) the employee retains any rights to annual leave, sick leave, extended or long service leave accrued or accruing immediately before the transfer (except accrued leave for which the employee has, on ceasing to be an employee of the current employer, been paid the monetary value in pursuance of any other entitlem
This is an opening excerpt, not the complete document.