Johnston and Commissioner of the NDIS Quality and Safeguards Commission

This matter concerned an application for review of a banning order made against Simon Richard Johnston under section 73ZN of the *National Disability Insurance Scheme Act 2013* (Cth). The original decision to impose a six-year banning order was made on 25 February 2022. Following an internal review requested by Mr Johnston, a delegate of the NDIS Commissioner varied the original decision on 13 April 2023. The delegate affirmed that a banning order would remain in place but varied the period of prohibition, stipulating that Mr Johnston was prohibited from being involved in the provision of supports and services to NDIS participants until 14 March 2027. The decision was made by Senior Member D Katter of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the delegate's decision to vary the banning order, and specifically the revised end date of 14 March 2027, was correct. This involved considering the grounds upon which a banning order could be made under section 73ZN(2)(a)(iii) of the Act, which requires the Commissioner to believe on reasonable grounds that a person is not suitable to be involved in the provision of supports or services to NDIS participants. The Tribunal was also implicitly required to assess the reasonableness of the delegate's belief in light of the evidence and the grounds for the original banning order.

The Tribunal's reasoning focused on the delegate's decision to vary the banning order. The delegate had affirmed the original decision to impose a banning order, finding that Mr Johnston was not suitable to be involved in the provision of supports and services to NDIS participants. The variation concerned the duration of the order, with the delegate setting a new end date of 14 March 2027. The Tribunal noted that the delegate had the power to vary or revoke a banning order under section 73ZO of the Act. The delegate's decision affirmed the continued prohibition of Mr Johnston from engaging with NDIS participants, with the revised period commencing from 28 February 2022 and concluding on 14 March 2027. The Tribunal's decision was to affirm the internal review decision, meaning the varied banning order remained in effect.