NDIA Accountability Project

Need for greater proportionality within the legislation linked to harm

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National Office

ABN: 52 008 445 485 33 Thesiger Court, Deakin ACT 2600 ph 02 6283 3200 | nds@nds.org.au | nds.org.au

5 March 2026

Ms Apolline Kohen Committee Secretary Standing Committee on Community Affairs The Senate Parliament House CANBERRA ACT 2600

Via email: community.affairs.sen@aph.gov.au c.c.: ndiscommissioner@ndiscommission.gov.au

Dear Secretary,

Re: NDIS Amendment (Integrity and Safeguarding) Bill 2025

Thank you for the opportunity to speak with the Senate Committee regarding National Disability Services recommendations and concerns regarding the NDIS Amendment Bill last week.

NDS have discussed our support for the higher penalties with the Senate and with government. We stand by our position on the need for higher penalties, set at 10,000 penalty points for serious contraventions, with a maximum penalty for organisations of $16.5 million

We also stand by and support the intent of the NDIS Bill to deter the most egregious of bad actors. As noted in our Submission and in our comments on proportionality when speaking to the Senate Committee NDS identifies that the application of the higher penalties reaches further and more broadly than the stated intent. We are now providing supplementary information regarding the proportional application of these penalties. This offers more detailed comments on the need for greater proportionality within the legislation linked to harm, discrepancies with the Aged Care Act, and how proportionality may be practically achieved.

Proportionality and key comparisons

NDS acknowledge that the introduction of the ‘serious contravention’ definitions of ‘significant failure’ and ‘systematic pattern of conduct’ are consistent with the same concepts used in the Aged Care Act, 2024 and a tiered approach is needed. However, the application of the tiered penalties differs dramatically between the Aged Care Act and the NDIS Bill. An extract of the s179 of the Aged Care Act, 2024 illustrates the additional tiers, and the only specific instance of the higher penalty:

Serious failures

(3) A registered provider contravenes this subsection if: (a) the provider has a duty under subsection (1); and (b) the provider, without reasonable excuse, engages in conduct that does not comply with the duty; and (c) the conduct amounts to a serious failure by the provider to comply with the duty.

Civil penalty: (a) in the case of a contravention by a registered provider that is an individual— 150 penalty units; or (b) in the case of a contravention by a registered provider other than an individual—1000 penalty units.

(4) Conduct of a registered provider amounts to a serious failure to comply with the duty in subsection (1) if: (a) the conduct exposes an individual to whom the duty is owed a risk of death or serious injury or illness; and (b) the conduct: (i) involves a significant failure; or (ii) is part of a systematic pattern of conduct.

Death or serious injury or illness

(5) A registered provider contravenes this subsection if: (a) the provider has a duty under subsection (1); and (b) the provider, without reasonable excuse, engages in conduct; and (c) the conduct amounts to a serious failure by the provider to comply with the duty; and (d) the conduct results in the death of, serious injury to or illness of an individual to whom the duty is owed.

Civil penalty: (a) in the case of a contravention by a registered provider that is an individual— 500 penalty units; or (b) in the case of a contravention by a registered provider other than an individual—4,800 penalty units.

Indeed, the Explanatory Memorandum conveys a likely broad application where the presence of risk of harm is sufficient.

“A higher civil penalty may be available where a registered NDIS provider is aware of their obligations but repeatedly breaches a condition of their registration which has the effect of increasing the risk of harm to many individuals receiving supports and services from that provider.” (p.7)

Link to harm

Both the WH&S model legislation and the Aged Care Act, 2024 include further subsections under s179 “ Registered provider duty“ that link the application of serious contraventions to the experience of harm and how this may be considered by the courts:

  • Relating the duty to harm - the ‘Registered provider duty’ (s179, Aged Care Act, 2024) applies directly to conduct that causes “adverse effects to the health and safety of individuals”.

  • Subsection relating to ‘reasonably practicable’ including the likely degree of harm from the adverse effect.

These sections relating to harm and to weighing reasonably practicable factors under the law, are absent from the NDIS Bill. The focus of consideration, based on matters so far heard by the courts, have been on whether a breach has or has not occurred, rather than considering the details of matters as above.

Practical considerations

An exact replication of the Aged Care Act, 2024 is not straightforward, nor well matched to the uneven and vast landscape of the NDIS market. NDS have considered this and the multiple sections the new serious contraventions apply to in the amendments, including those relating to scheme integrity.

To best address the identified risk of higher penalties being disproportionally applied to administrative matters under the NDIS Practice Standards we propose the inclusion of penalty tiers similar to that of the Aged Care Act to “serious contraventions failures” under section 73J “ Registered NDIS providers must comply with conditions of registration“. Specifically:

  • Under section 73J an amendment similar to that of the Aged Care Act should be introduced and required for the application of the highest penalty. This could replicate or be similar to the section above:

           Death or serious injury or illness
           (5)   A registered provider contravenes this subsection if:
                    (a)     the provider has a duty under subsection (1); and
                   (b)     the provider, without reasonable excuse, engages in conduct; and
                    (c)     the conduct amounts to a serious failure by the provider to comply with the duty; and
                   (d)     the conduct results in the death of, serious injury to or illness of an individual to whom the duty is owed.

Legislative Clarity Required

Inclusion of a further amendment at 73J within the NDIS Bill will provide stability to the sector and build trust in the mechanisms of the NDIS Commission.

NDS welcomes the new NDIS Bill. Current policy settings are enabling the wrong providers to thrive. This is harming participants and driving quality providers out of the market, either entirely or in part. The Bill is a critical element in ensuring the NDIS is stewarded in a way Australians reasonably expect. However, on its own, it will not be sufficient to drive bad actors out of the scheme or to give participants confidence in the providers they rely on. Strengthening proportionality, clarity of intent, and the practical application of penalties is essential if the NDIS is to deliver the safety, accountability and trust that participants deserve.

Yours sincerely

Michael Perusco CEO

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