National Disability Insurance Scheme (Quality and Safeguards Commission and Other Measures) Transitional Rules 2018

This instrument, the National Disability Insurance Scheme (Quality and Safeguards Commission and Other Measures) Transitional Rules 2018, is a legislative instrument made under item 81 of Schedule 1 to the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017. Its mechanical function is to provide for the automatic transition of existing registered providers of supports (under the prior state-based or transitional NDIS arrangements) and certain residential aged care providers into the new national registration framework administered by the NDIS Quality and Safeguards Commission. It does not create new substantive obligations on providers beyond those in the NDIS Act 2013, but it prescribes how existing approvals and pending applications are treated when a host jurisdiction becomes a participating jurisdiction under the NDIS.

Part 2 (sections 5-10) deals with the transition of providers in jurisdictions that become participating jurisdictions at a defined transition time. Where a provider was approved to manage funding or provide supports immediately before the transition time, the Commissioner is taken to have decided to register them as a registered NDIS provider under section 73E of the Act (section 7(2)). This automatic registration is limited to the classes of supports and persons for which the provider was previously approved. The provider ceases to be a registered provider under the prior arrangements and becomes a "transitioned provider" (section 7(4)). The instrument also deems pending applications for registration under section 69 of the Act as refused for the participating jurisdiction (section 6), effectively requiring new applications under the new regime (though transitioned providers already get automatic registration, so this mostly affects new applicants). Section 8 modifies what must be included in a participant's plan: where the Agency previously managed funding and the participant is in a participating jurisdiction, the plan is taken to require supports to be provided only by a registered NDIS provider. Section 9 modifies application and review rights: for transitioned providers, certain decisions (conditions on registration under s 73G, variation or refusal to vary under s 73L) are not reviewable under the Act, and pending applications under s 69 are treated as applications under s 73C. Section 10 allows the Agency to disclose provider information to the Commissioner for the NDIS Provider Register.

Part 3 (sections 11-14) deals specifically with residential aged care providers who were approved providers under the Aged Care Quality and Safety Commission Act 2018 and who were providing permanent residential care to an NDIS participant on 1 December 2020, and who were not already registered under the NDIS. On that date, the Commissioner is taken to have registered them as registered NDIS providers for the single class of support: assistance with daily life tasks in a group or shared living arrangement (section 12(2)). They become "transitioned RAC providers" (section 12(4)). Pending applications under s 73C from such providers for supports beyond that class are automatically converted into variation applications under s 73M (section 13). Pending applications solely for that class are deemed withdrawn (section 14), because the provider is already registered automatically. The instrument does not impose any additional compliance costs at the point of transition, but it forces providers to engage with the new registration system if they wish to expand their scope beyond the automatic default.

The overarching effect is to create a bridge from the prior state-based approval systems to the national Commission framework, minimising disruption for existing providers and participants at the point of transition, but also setting limits on what is automatically conferred. The instrument does not itself set practice standards or fees; those are in other instruments. It is solely concerned with the transitional mechanics of registration status.

Transitioned provider (section 7(4)): a person or entity who, immediately after a transition time in a participating jurisdiction, is automatically deemed to be a registered NDIS provider under section 73E of the Act by operation of section 7(2). This status ceases if the provider applies for a fresh registration under s 73C and the Commissioner decides (or decides not to register), or if registration is revoked under s 73P, or if the registration period expires (subject to s 73K). The transitioned provider label matters because it affects review rights and how applications are treated (section 9).

Transitioned RAC provider (section 12(4)): a residential aged care provider who, on 1 December 2020, is deemed registered for the single class of "assistance with daily life tasks in a group or shared living arrangement" (item 15 of the table in the Provider Registration and Practice Standards Rules 2018). This is a narrower class than what full NDIS providers might be registered for. The provider ceases to be a transitioned RAC provider under similar conditions (section 12(5)), but importantly, if the provider later applies to vary registration to add other support classes, the transitioned RAC provider status ends when the Commissioner decides on that new application.

Transition time: defined separately for each host jurisdiction that becomes a participating jurisdiction under section 10A of the Act. For Part 2, the transition time is when the host jurisdiction becomes a participating jurisdiction. For Part 3, the specific date 1 December 2020 is used (this is a fixed date, not dependent on jurisdiction status). The instrument does not list which jurisdictions or dates; those are set by other determinations.

Pending applications: section 6 deems applications under s 69 (old registration) that are pending at the transition time to be refused to the extent they relate to the participating jurisdiction. This is a harsh provision: an applicant who had been waiting for approval effectively must start again under the new regime. However, for those who were already approved providers, the automatic registration saves them. For residential aged care providers, pending applications under s 73C for supports beyond the daily life class are converted into variation applications (section 13), which is less harsh than outright refusal.

Non-reviewable decisions: section 9(2) explicitly provides that a decision by the Commissioner to impose conditions on a transitioned provider's registration (under s 73G) or to vary or refuse to vary their registration (under s 73L) is not a reviewable decision under the Act. This removes the usual merits review rights for transitioned providers, at least for these specific decisions. This is a significant restriction on provider rights, presumably because the transitioned provider already has an automatic registration and the conditions or variations are seen as administrative adjustments.

The instrument directly affects three main categories of entities:

Existing state-based or transitional registered providers of supports (under the old system) when their host jurisdiction becomes a participating jurisdiction. These providers are automatically deemed registered NDIS providers under Part 2 (section 7). They do not need to apply for initial registration, but they are bound by the NDIS Act provisions as modified. They also lose the ability to have certain administrative decisions reviewed (section 9(2)). Providers who had pending applications for registration at the transition time are essentially refused (section 6), which may force them to reapply later if they want to operate in that jurisdiction. This creates an opportunity cost: the time and money spent on the pending application is wasted.

Residential aged care providers who on 1 December 2020 meet the criteria in section 12(1): an approved provider under the Aged Care Quality and Safety Commission Act 2018, providing permanent residential care to an NDIS participant who is also approved as a recipient of residential care under the Aged Care Act 1997, and who is not already an NDIS provider. These providers become transitioned RAC providers with registration limited to one class of support (assistance with daily life tasks in group or shared living). This automatic registration is a benefit (no application cost), but it may be a narrow band; if they provide other supports to NDIS participants, they must apply to vary. Their pending applications for broader registration are converted to variation applications (section 13) or withdrawn (section 14). The instrument affects their compliance obligations going forward: they must now meet NDIS provider requirements for that class, which may differ from aged care quality standards. They also must contend with the NDIS Commission as regulator.

Participants: The instrument indirectly affects participants by deeming plan requirements under section 8. Participants whose funding was managed by the Agency before the transition and who are in a participating jurisdiction automatically have their plans require supports only from registered NDIS providers. This restricts their choice of provider to those who are registered (including transitioned providers). Participants in residential aged care who receive NDIS supports may now have their supports provided by a transitioned RAC provider, which may affect continuity of care.

The Agency and the Commissioner: The instrument imposes administrative duties on the Agency to disclose provider information on request (section 10) and on the Commissioner to issue certificates of registration to transitioned providers (note to section 7(2)) and transitioned RAC providers (note to section 12(2)). The Commissioner does not need to give written notice or reasons when deeming registration (sections 7(3) and 12(3)), reducing administrative burden.

Duties: The instrument does not create new duties; it modifies how existing duties under the NDIS Act apply. However, by deeming registration, it brings providers within the full ambit of the Act's obligations: compliance with the NDIS Code of Conduct, practice standards, complaint handling, reportable incidents, etc. Transitioned providers must comply with conditions imposed on their registration (under s 73G) and with the Act's provisions as modified. Transitioned RAC providers must comply with NDIS requirements specifically for the class of support they are deemed registered for. They also have a duty to notify the Commissioner if they want to vary their registration to add other supports (section 13 effectively imposes an obligation on those with pending applications to convert them).

Rights: Transitioned providers gain the right to be treated as registered NDIS providers without needing to apply. They have the right to a certificate of registration from the Commissioner (notes in sections 7(2) and 12(2)). They have the right to apply for variation of their registration under s 73M (the Act), but the instrument does not alter that right beyond converting pending applications. Transitioned RAC providers have the right, if they have a pending application for other supports, to have it converted to a variation application rather than being refused (section 13). This is a procedural right.

Limitations on rights: The most significant limitation is the removal of review rights for decisions under s 73G (conditions on registration) and s 73L (variation or refusal to vary) for transitioned providers (section 9(2)). This means a transitioned provider cannot seek internal review or merits review (such as to the AAT) for these decisions. This is a departure from the general provisions of the Act, which do allow review of such decisions for non-transitioned providers. The rationale is not stated in the instrument but likely to avoid endless challenges during the transition period. However, it creates a risk for providers: if the Commissioner imposes onerous conditions or refuses to vary their registration, they have no recourse within the Act. Judicial review under the ADJR Act or Constitution might still be available, but that is more limited.

Pending applicants: Those with pending s 69 applications at the transition time have the right to have the application continue to the extent it is not related to the participating jurisdiction (section 6(3)), but for the participating jurisdiction, the application is deemed refused. They do not have a right to have that refusal reviewed? The refusal is by operation of law, not a decision, so likely no reviewable decision. This is a loss of rights.

The instrument itself does not contain any penalty or enforcement provisions. It is a transitional instrument that modifies the operation of the NDIS Act. Enforcement and penalties for non-compliance with the Act's provisions (including conditions on registration, code of conduct, etc.) are found in the primary Act and other legislative instruments. However, the instrument affects enforcement indirectly by determining who is a registered NDIS provider. Once deemed registered, a transitioned provider becomes subject to the enforcement powers of the NDIS Quality and Safeguards Commissioner: compliance notices, infringement notices, civil penalties, and criminal offences under the Act. The instrument does not provide any transitional immunity or grace period for compliance. The automatic registration takes effect immediately at the transition time, and the provider is expected to comply with all applicable duties from that moment. This could be a trap for providers who are not aware of their new obligations.

Specifically, section 7(2) deems the Commissioner to have decided to register the provider. That decision is treated as if made under s 73E of the Act, and the provider is then subject to the full registration framework, including the power to impose conditions on registration under s 73G, variation or suspension under s 73L, and revocation under s 73P. The instrument modifies s 73E(4) to omit the requirement for written notice of the decision and reasons (sections 7(3) and 12(3)). This means a provider may not realise they have been registered or what conditions apply until they receive a certificate (which must be given). The Commissioner could impose conditions at the same time as the deemed registration? Possibly, but the instrument does not address that. The note to section 7(2) says the Commissioner must give a certificate of registration, which must specify the period of registration. But if conditions are imposed later under s 73G, the transitioned provider cannot seek review of those conditions (s 9(2)). That is a significant enforcement risk: the Commissioner could impose conditions with no internal merit review, and non-compliance with conditions could lead to civil penalties under the Act.

For residential aged care providers, the same applies. The instrument does not exempt them from the Aged Care Act's enforcement regime; they are dual-regulated. However, the transitioned RAC provider is only deemed registered for a limited support class, so the Commissioner's enforcement powers are confined to that class unless the provider applies to vary.

The instrument also affects enforcement by removing the ability of the Commissioner to rely on the old s 69 application for revocation purposes. Section 9(1) provides that for the purposes of ss 73N(1)(b) and 73P(1)(b) (which deal with breach of conditions), the old s 69 application is treated as an application under s 73C. This is a procedural adjustment to allow the Commissioner to impose conditions or revoke registration based on information that the provider gave in the old application, but it does not create new penalties.

The instrument operates as a legislative instrument under the NDIS Act 2013 (section 3). It is expressly made for the purposes of item 81 of Schedule 1 to the NDIS Amendment (Quality and Safeguards Commission and Other Measures) Act 2017. That item confers a regulation-making power to prescribe transitional matters. Therefore, the instrument sits within the hierarchy of the NDIS legislative framework. It modifies the operation of specific sections of the NDIS Act as detailed in sections 8 and 9. The instrument does not directly amend the NDIS Act; it provides for how the Act applies during the transition period.

Relationship with the Aged Care Act 1997: Part 3 specifically interacts with the aged care regulatory framework. A transitioned RAC provider is an approved provider under the Aged Care Quality and Safety Commission Act 2018 (section 12(1)(a)) and is providing residential care (as defined by the Aged Care Act 1997) to a participant who is approved under Part 2.3 of that Act (section 12(1)(c)). The instrument deems that provider to be an NDIS provider for a specific support class, but it does not override the aged care obligations. The provider must comply with both the NDIS Act (for NDIS participants) and the Aged Care Act (for care recipients who are not NDIS participants or even for the same participant for aged care funded services). This creates potential for regulatory overlap and conflicting standards. For example, the aged care quality standards may differ from the NDIS practice standards for daily living supports. The provider must navigate both. The instrument does not attempt to harmonise them; it merely creates a registration bridge.

Interaction with the NDIS (Provider Registration and Practice Standards) Rules 2018: The instrument references that rules as the source of the class of support "assistance with daily life tasks in a group or shared living arrangement" (item 15 of the table in subsection 20(3) of those Rules). That class is the only class for which the RAC provider is automatically registered. The instrument does not impose those practice standards itself; they are incorporated by reference.

Interaction with the Administrative Appeals Tribunal Act 1975: By removing review rights for certain decisions (s 9(2)), the instrument restricts access to merits review under the AAT. This may interact with the general provisions for review of decisions under the NDIS Act (Part 6A). The instrument does not explicitly oust judicial review, but it limits the statutory review avenue.

The instrument itself is a transitional rule made in 2018 (as indicated by its name). The source provided does not contain any amendment history, nor does it reference any amendments to this instrument. As a legislative instrument, it is subject to ongoing amendment by the responsible Minister. However, based solely on the text provided, there is no indication that this instrument has been amended since its commencement. The instrument's provisions are date-specific (e.g., 1 December 2020 for Part 3), which suggests that Part 3 is now spent or historical, but the instrument may still have ongoing effect for providers who transitioned under Part 2 in later participating jurisdictions. The instrument does not include provisions for repeal or sunsetting. The user should note that the absence of amendment history in the source does not mean the instrument has not been amended in practice; other versions may exist. But for the purpose of this deep dive, the source shows no amendments.

The instrument was made under a specific enabling provision (item 81 of Schedule 1 to the Amendment Act 2017). That Amendment Act was passed in 2017, and these rules were likely made shortly before the first transition dates. The instrument does not cite any previous transitional rules; it appears to be the principal transitional instrument for this purpose. It is possible that subsequent transitional rules were made for other aspects, but this instrument is the only one provided.

For a full amendment history, one would need to check the Federal Register of Legislation. However, this deep dive is limited to the source. Therefore, it is accurate to state that the instrument contains no amendment history on its face, and no amendments are mentioned in the text.

The source does not refer to any litigation, cases, or court decisions. This is unsurprising given the instrument's nature as a transitional legislative instrument. It is not a primary law likely to be litigated directly. However, the removal of review rights in section 9(2) could be challenged on administrative law grounds, such as jurisdictional error or a breach of natural justice. But no such cases are mentioned. The instrument is relatively narrow and technical, and litigation would likely focus on the underlying NDIS Act rather than the transitional rules themselves.

One could infer potential litigation risks: a transitioned provider aggrieved by a condition imposed under s 73G (which is non-reviewable under the Act) might apply for judicial review under the ADJR Act or the Constitution. The instrument does not oust judicial review, only statutory merits review. There could be challenges to the validity of the deemed registration or the transitional provisions themselves under item 81, but no cases are recorded in the source. The note to section 7(3) and 12(3) omitting notice and reasons could give rise to procedural fairness arguments, but again, no cases.

Given the source's silence, the only honest answer is that the instrument does not reference any litigation history. A prudent lawyer would search for decisions involving this specific instrument, but this deep dive cannot do that beyond the source.

1. Pending applications deemed refused without review: Under section 6, any application for registration under s 69 of the Act that is pending at the transition time is automatically refused for the participating jurisdiction. This is a harsh default. The applicant receives no decision to review; it is a statutory fiction. They must reapply under the new s 73C process. The application may have involved significant time and expense. Providers should have been monitoring when their jurisdiction would transition and withdrawn pending applications before the transition time to avoid this, but the instrument does not allow for that. This is a classic transitional trap.

2. Loss of review rights for transitioned providers: Section 9(2) excludes from review decisions under s 73G (imposing conditions) and s 73L (varying or refusing to vary registration) for transitioned providers. A provider who is automatically registered may later have conditions imposed that could be costly or restrictive, and they have no right of internal or AAT review. The only recourse is judicial review on narrow grounds. This is a significant disadvantage compared to providers who apply for registration after the transition. It incentivises providers to voluntarily cease being transitioned providers by applying for fresh registration under s 73C (see section 7(5)), thereby regaining full review rights. But that application process itself has costs and may not guarantee the same registration scope.

3. Plan modifications restrict participant choice: Section 8 deems that a participant's plan, when funding was previously managed by the Agency and the participant is in a participating jurisdiction, must require supports to be provided only by registered NDIS providers. This means participants cannot choose unregistered providers for those supports, even if they previously could. It restricts participant freedom. Participants may not be aware of this change, and it could disrupt existing arrangements if their preferred provider is not yet registered (although most should be transitioned). This is a hidden cost on participants.

4. Transitioned RAC providers are only registered for one class: Part 3 automatically registers certain aged care providers solely for "assistance with daily life tasks in a group or shared living arrangement". This is a narrow class. If a transitioned RAC provider provides other NDIS supports to the same participant (e.g., physiotherapy, nursing), those supports are not covered by the deemed registration. The provider would be operating unlawfully if they continue to provide those supports without being registered for them. The instrument does not provide any transitional period for them to apply to vary. Pending applications for other supports are converted to variation applications (section 13), but if they had no pending application, they must initiate a new one. This is a compliance trap.

Compliance with this instrument is essentially a matter of understanding one's status and then complying with the underlying NDIS Act. There are no separate compliance steps under this instrument beyond the transitional recognition. The following steps are relevant for affected providers:

For providers subject to Part 2 (transitioned providers) :

1. Confirm your transitioned provider status: Determine if your host jurisdiction became a participating jurisdiction on a date after which you were an approved provider under the old s 69. You should receive a certificate of registration from the Commissioner (see note to s 7(2)). If you do not, contact the NDIS Quality and Safeguards Commission to confirm your deemed registration status. Check that the certificate specifies the period of registration and the classes of supports you are deemed registered for.

2. Review the conditions on your registration: Even though the instrument does not explicitly impose conditions, the Commissioner may later impose conditions under s 73G. Since such decisions are non-reviewable (s 9(2)), you must comply with any conditions. If you receive a notice of conditions, ensure you understand them and can meet them. If you believe the conditions are unreasonable, your only recourse is judicial review, which is costly. You might consider applying for full registration under s 73C to regain review rights, but weigh the risks.

3. Comply with all NDIS Act obligations: From the transition time, you are a registered NDIS provider. You must comply with:

   • The NDIS Code of Conduct
   • Provider Practice Standards (registration rules)
   • Requirements for managing funding and providing supports
   • Reportable incidents scheme
   • Complaint handling
   • Record keeping and audits
   • Any specific conditions on your registration

4. Decide whether to apply for full registration: You may cease to be a transitioned provider by applying under s 73C (s 7(5)). This may be advantageous if you want to expand your registration scope, or if you want the ability to seek review of any condition decisions. However, the application process involves demonstrating compliance, paying fees, and risking a narrower or refused registration. Timing is critical; you could apply before conditions are imposed. There is no requirement to do so; you may remain a transitioned provider indefinitely if you are satisfied.