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

In this case, the Commissioner of the NDIS Quality and Safeguards Commission initiated proceedings against the Australian Foundation for Disability (Afford) for civil contraventions of sections 73J and 73V of the National Disability Insurance Scheme Act 2013 (Cth). The dispute centred around Afford's failure to comply with the NDIS Code of Conduct and NDIS Practice Guidelines, which had placed a participant, Ms Aprem, at significant risk and potentially contributed to her death. This marked the first case of its kind under the NDIS Act. The central legal issues were whether the same conduct could lead to multiple contraventions, potentially resulting in double punishment, and whether the court should declare the contraventions and impose the sought civil penalties.

The court held that the contraventions were separate and related to different conduct. The breaches were serious, placing Ms Aprem at real and significant risk, and potentially contributing to her death. The court found mitigating factors were present but did not reduce the penalty. It was conscious of the overlap in particulars but ensured that the penalty imposed did not result in double punishment. The court concluded that the declarations and pecuniary penalties sought were appropriate, considering all relevant factors.

In light of the above, the court made the following orders: Afford was required to pay a pecuniary penalty of $220,000 for the contravention of section 73V of the NDIS Act and $180,000 for the contravention of section 73J of the NDIS Act. Afford was also ordered to pay the Commissioner's costs as agreed or taxed. These penalties were imposed to reflect the seriousness of the contraventions and to serve as a deterrent against future non-compliance with the NDIS Act.