Northern Disability Services Pty Ltd and Commissioner of the NDIS Quality and Safeguards Commission (NDIS)
[2025] ARTA 1186
•1 August 2025
Northern Disability Services Pty Ltd and Commissioner of the NDIS Quality and Safeguards Commission (NDIS) [2025] ARTA 1186 (1 August 2025)
Applicant/s: Northern Disability Services Pty Ltd
Respondent: Commissioner of the NDIS Quality and Safeguards Commission
Tribunal Number: 2024/2938
Tribunal:General Member Darian-Smith
Place:Sydney
Date:1 August 2025
Decision:The Tribunal sets aside the decision under review and in substitution decides that the Applicant be registered under section 73E of the National Disability Insurance Scheme Act2013 (Cth).
...............................[SGD].........................................
General Member Darian-Smith
Catchwords
NATIONAL DISABILITY INSURANCE SCHEME – Application to be registered NDIS provider – whether key personnel suitable to be involved in provision of supports or services – weighing of background, experience and qualifications against potentially disqualifying matters – decision not to register Applicant as NDIS provider set aside
Legislation
Criminal Code Act 1995 (Cth) s.135
National Disability Insurance Scheme Act 2013 (Cth) ss. 3, 73E, 181ENational Disability Insurance Scheme (Provider Registration and Standards) Rules 2018 (Cth) s.10, 11A, 13A
Statement of Reasons
This is an application for review by the Applicant (NDS) of the decision of the Delegate of the Respondent (Commissioner) made on 2 April 2024 (Reviewable Decision). The Reviewable Decision affirmed the original decision made on 28 September 2023 by the Delegate of the Commissioner, to refuse NDS’s application to be a registered NDIS provider under section 73E of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act).
The managing director of NDS, Ahmed Mohamud Ahmed (Mr Ahmed), has previously made, and seeks to rely upon, the following statements:
(a) Letter dated 7 September 2021 (2021 Ahmed statement).[1]
(b) Affidavit sworn 19 October 2023 (2023 Ahmed affidavit).[2]
(c) Affidavit sworn 23 April 2024 (2024 Ahmed affidavit).[3]
(d) Statement dated 12 August 2024 (August 2024 Ahmed statement);[4] and
(e) Statement dated 24 September 2024 (September 2024 Ahmed statement).[5]
[1] Tender Bundle (T)269.
[2] T449.
[3] Attachment AA-3 to the August 2024 Ahmed statement; T923.
[4] T836.
[5] T962.
NDS has also filed, and relies upon, a Statement of Facts, Issues and Contentions dated 12 August 2024 (Applicant’s SFIC), and Reply Submissions dated 24 September 2024 (Applicant’s Reply Submissions).
The Commissioner has filed, and relies upon, the Respondent’s Submissions dated 11 September 2024 (Respondent’s Submissions).
The issues for determination by the Tribunal identified by NDS in the Applicant’s SFIC are:
“(a) whether NDS has been assessed by an approved auditor for the purposes of s. 73E(1)(c).
(b) whether the Tribunal is satisfied Mr Ahmed is suitable to [be] involved in the provision of services for the purposes of s.73E(1)(e), taking into account:
(i) Mr Ahmed’s 2014 criminal conviction.
(ii) Mr Ahmed’s failure to disclose his 2014 criminal conviction.
(iii) Mr Ahmed’s delay in being added as key personnel.
(iv) all other relevant matters.”
The parties agree that NDS now meets the audit requirement in subsection 73E(1)(c) of the NDIS Act, with the consequence being that the issues before the Tribunal are narrowed to issue (b) above, being the consideration of whether Mr Ahmed, as key personnel of NDS, is suitable to be involved in the provision of services by NDS under subsection 73E(1)(e) of the NDIS Act.
To be registered as a NDIS provider an applicant must satisfy the mandatory requirements of section 73E of the NDIS Act, which provides:
“73E Registration as a registered NDIS provider
Registration
(1) The Commissioner may register a person as a registered NDIS provider if:
(a) the person (the applicant) makes an application under section 73C; and
(c) the applicant has been assessed by an approved quality auditor as meeting the applicable standards and other requirements prescribed by the NDIS Practice Standards; and
(d) the Commissioner is satisfied that the applicant is suitable to provide supports or services to people with disability, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph; and
(e) the Commissioner is satisfied that the applicant’s key personnel (if any) are suitable to be involved in the provision of supports or services for which the applicant will be registered to provide, having regard to any matters prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph: and
(f) the applicant satisfies any other requirements prescribed by the National Disability Insurance Scheme rules for the purposes of this paragraph.”
For the purposes of subsection 73E(1)(e) of the NDIS Act, section 10 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) (NDIS Registration Rules) provides:
“10 Suitability of key personnel
(1) This section is made for the purposes of paragraph 73E(1)(e) of the Act.
(2) In determining whether the Commissioner is satisfied that a member of the applicant’s key personnel is suitable to be involved in the provision of supports or services for which the applicant will be registered to provide, the Commissioner must have regard to the following matters:
(a) whether a banning order has ever been in force in relation to the member;
(b) whether the member has been convicted of an indictable offence against a law of the Commonwealth or of a State or Territory;
(c) whether the member is or has been an insolvent under administration;
(d) whether the member has been the subject of adverse findings or enforcement action by a department of, or an authority or other body established for a public purpose by, the Commonwealth, a State or a Territory, including one with responsibilities relating to the quality or regulation of services provided to people with disability, older people and children;
(e) whether the member has been the subject of adverse findings or enforcement action by any of the following:
(i) the Australian Securities and Investments Commission;
(ii) the Australian Charities and Not-for-profits Commission;
(iii) the Australian Competition and Consumer Commission;
(iv) the Australian Prudential Regulation Authority;
(v) the Australian Crime Commission;
(vi) AUSTRAC;
(vii) a body of a State or Territory that is equivalent to a body mentioned in any of subparagraphs (i) to (vi);
(viii) a work health and safety authority of a State or Territory;
(f) whether the member has been the subject of any findings or judgment in relation to fraud, misrepresentation or dishonesty in any administrative, civil or criminal proceedings, or is currently party to any proceedings that may result in the member being the subject of such findings or judgment;
(g) whether the member has ever been disqualified from managing corporations under Part 2D.6 of the Corporations Act 2001;
(h) any other matter the Commissioner considers relevant.
(2) Paragraph 2(b) does not affect the operation of Part VIIC of the Crimes Act 1914 (which includes provisions that, in certain circumstances, relieve persons from the requirement to disclose spent convictions and require persons aware of such convictions to disregard them).”
The parties agree that the provisions of direct relevance to the issue of Mr Ahmed’s suitability, are subsection 73E(e) of the NDIS Act read together with subsections 10(2)(f) and (h) of the NDIS Registration Rules.
The legislative context in which the Commissioner made the Reviewable Decision, and in which the Tribunal determines the application for review, is found in the objects clause of the NDIS Act, which relevantly provides:
“3 Objects of Act
(1) The objects of this Act are to: …
(ga) protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the National Disability Insurance Scheme… “
and
“(3) In giving effect to the objects of the Act, regard is to be had to:
(b) the need to ensure the financial sustainability of the National Disability Insurance Scheme.”
The Commissioner’s core functions are found in section 181E of the NDIS Act, including a core function:
“… (a) to uphold the rights of, and promote the health, safety and wellbeing of, people with disability receiving supports or services, including those received under the National Disability Insurance Scheme.”
The Tribunal has had regard these matters when exercising its decision-making powers in the present review.
NDS SUBMISSIONS AS TO SUITABILITY OF MR AHMED
Mr Ahmed is managing director of NDS and there is no controversy that he falls within the definition of key personnel in subsection 11A(2)(a) of the NDIS Act.
The Tribunal needs to be satisfied that Mr Ahmed (as key personnel of NDS) is suitable to be involved in the provision of the supports or services which NDS will be registered to provide.
The supports or services for which NDS has applied to be registered include: Assistance in coordinating or managing life stages, transitions and supports; Assistance with daily personal activities; Assistance with travel/transport arrangements; Community nursing care; Assistance with daily life tasks in a group or shared living arrangement; Household tasks; Assistive products for household tasks; Participation in community, social and civic activities; Exercise physiology and personal training; Management of funding supports in participants plan; Therapeutic support; Specialised Support coordination.[6]
[6] T108 – T109.
Section 10(2) of the NDIS Registration Rules sets out, at subsections (a) – (g), the considerations as to suitability which must be considered, together with subsection (h) which compels consideration of any other relevant matter. The evidence before the Tribunal engages subsections 10(2)(b), (f) and (h). The main areas of focus in determining Mr Ahmed’s suitability are his background, experience and qualifications, his criminal conviction in 2024, NDS’s failure to disclose that criminal conviction and NDS’s delay in notifying the Commissioner of his appointment as a director of NDS.
NDS submits that Mr Ahmed’s background, experience and qualifications are “other matters” supporting his suitability to be involved in the provision of supports and services by NDS if it is registered as a NDIS provider.[7]
[7] Applicant’s SFIC, [54] – [55].
Mr Ahmed’s evidence is that he provides an important service to an ethnically diverse section of the community in Melbourne, and his migrant refugee background (coming to Australia from Somalia as a refugee in 1994)[8] and relevant professional and vocational qualifications[9] means that he is particularly qualified and suited for the key personnel in NDS role.
[8] August 2024 Ahmed Statement, [2] – [4].
[9] August 2024 Ahmed Statement, [5], [7].
Mr Ahmed states that he has worked in the administration of NDS since it was established in July 2016, In the period before becoming a director of NDS in 2021, he was an Accounts Officer. Since taking over as Managing Director of NDS from his brother in 2021, he says he has improved the operations of NDS and has acquired an intimate familiarity with NDS’s business and the requirements of being a NDIS provider.
Mr White submitted that Mr Ahmed had already demonstrated his suitability to be key personnel for NDS. In his 4 years as managing director of NDS he had “steered the business admirably.” During that 4-year period, there was no evidence of impropriety, no suggestion of any conduct which was not in the interests of the clients to whom NDS was providing services and no evidence of any misconduct in any dealings with the Commonwealth. It was further submitted that the Commissioner has raised a number of objections to Mr Ahmed’s suitability as key personnel of NDS, but none of the matters raised, either individually or cumulatively, would be a sufficient basis for the Tribunal to find that Mr Ahmed was not suitable.
Mr Ahmed acknowledges that his having pleaded guilty on 14 May 2014 to a charge of obtaining financial advantage from a Commonwealth entity is highly relevant to an assessment of his suitability as key personnel of a NDIS provider. The question is how much weight should attach to it.[10]
[10] Applicant’s SFIC, [57] – [59].
Mr Ahmed submits that at the time of his offending he was a 24 or 25-year-old university student, and that he is now a “different man”, who has had no subsequent involvement with the criminal justice system and that there is no “plausible risk” of him re-offending.[11] He further submits through his counsel that his historical offending is only relevant to the extent that it is predictive of how he might act today. The offending conduct is said to have no predictive value because his circumstances have changed and Mr Ahmed is now a man of almost 40 years of age, married with children. Mr Ahmed should rather be seen as a model of rehabilitation posing no greater risk to the revenue of the Commonwealth than any other member of the public.
[11] Applicant’s SFIC, [58].
NDS’s notification to the Commissioner in April 2022, that Mr Ahmed had become a director of NDS included the answer “no” to the question asking whether Mr Ahmed had been subject to a finding or judgment in relation to fraud, misrepresentation or dishonesty. The parties disagree as to weight which should attach to the non-disclosure in that context of Mr Ahmed’s guilty plea in 2014.[12]
[12] Applicant’s SFIC, [60].
Mr Ahmed’s position is that limited weight should attach to his “no” answer because he mistakenly believed that given the passage of 8 years since the finding of guilt, he was not required to disclose the offending. Mr Ahmed does not dispute that his answer was false but says that he believed his offending had been cleared from the record upon satisfaction of the 2-year condition of good behaviour. He submits that his explanation for the non-disclosure is inherently plausible, and that the Tribunal should be satisfied that it was not his intention to mislead the Commissioner.[13]
[13] Applicant’s SFIC, [61] – [63]; see also T21, at [8], as to the legal advice said to have been provided to Mr Ahmed by the duty lawyer.
The NDIS Registration Rules subsection 13A(2)(b) required NDS to disclose Mr Ahmed’s appointment as a director of NDS “as soon as practicable” after his appointment. In the event, notification occurred 11 months after the appointment.[14]
[14] Applicant’s SFIC, [64].
Mr Ahmed acknowledges that the delay should not have occurred and expresses his regret for the delay. The reasons given for the delay by NDS relate to difficulties associated with the handover of control of NDS by his brother after his brother’s resignation and that, for example, he did not receive the log-in credentials for the Commissioner’s website until late 2022. Mr Ahmed says he needed time to familiarise himself with the regulatory obligations of NDS and that he self-reported the failure to disclose his appointment once he realised NDS had an obligation to notify as soon as practicable. Mr Ahmed submits that delay of this kind should not lead to the conclusion that he is not suitable to be key personnel of NDS.[15]
[15] Applicant’s SFIC, [65] – [67].
Mr White noted that it was part of the Commissioner’s case that Mr Ahmed bore some responsibility for NDS’s non-conformance as found in the SAI Global audit reports. NDS’s position is that this contention is not relevant to determining Mr Ahmed’s suitability, as the enquiry as to suitability is essentially about whether Mr Ahmed can be trusted to handle Commonwealth funding, and trusted to deliver disability services to clients, rather than with NDS’s failure to resolve identified audit non-conformities.
Even if this audit non-conformance aspect is relevant, it is said that the Tribunal should take account of the following matters, that:
(a) for most of the audit period under consideration, Mr Ahmed was not a director of NDS.[16] and
(b) in the period since Mr Ahmed became a director of NDS, both NDS’s audit conformance and its business performance have improved.[17]
[16] Applicant’s Reply Submissions, [5] – [7].
[17] Applicant’s Reply Submissions, [9], [11] – [12].
In relation to the Commissioner’s contention that Mr Ahmed has been untruthful about the receipt of the second SAI Global Follow Up Audit Report on 1 February 2021, Mr White submitted that there was no basis for the Tribunal to find that Mr Ahmed had lied when he said that he did not receive the report. The evidence is Mr Amed conducted searches of NDS email inboxes and could not locate the report[18] and would not support a finding that untruthful statements had been made in the 2023 Ahmed affidavit and the 2024 Ahmed affidavit.
[18] September 2024 Ahmed statement, [9].
Mr White referred the Tribunal to a reference letter dated 1 September 2021 from the Secretary of the Somali Australian Council of Victoria (SACOV Testimonial)[19], as third-party evidence of the support for Mr Ahmed in, and for the disability services which NDS provides to, the Somali Australian Community.
[19] T284.
Overall, NDS contends that the suitability of Mr Ahmed is established because the weight which his background, qualifications and professional experience should be accorded in determining his suitability, outweighs any findings which the Tribunal might make as to his past offending, his failure to disclose that past offending and his lateness in in informing the Commissioner of his appointment as a director of NDS.[20]
[20] Applicant’s SFIC, [68].
MR AHMED’S EVIDENCE UNDER CROSS EXAMINATION
Mr Ahmed was cross examined by Mr Blaker. The key points which emerged from his cross examination were:
(a) Mr Ahmed said he had day-to-day charge of operations at NDS, described as “mostly human resources”, which he explained related to setting rosters and managing staff on-site at the NDS business premises. When taken to the summary of audit findings in the SAI Global Stage 2 Audit Report dated 2 March 2020,[21] and shown the finding relating to major non-conformity in Human Resource Management,[22] he stated that he did not have management responsibility for personnel (hiring etc) at NDS in the period up to March 2020.
(b) Mr Ahmed was questioned about whether he received the second Follow Up Audit Report dated 1 February 2021.[23] He confirmed his earlier position that he did not receive the report in February 2021. He was shown the relevant emails dated 2 February 2021 but had no recall of the attachments referred to in the 1:09 am email.[24] Mr Ahmed was taken to paragraph [22] of the 2023 Ahmed affidavit,[25] in which he stated that he had not received an audit report from SAI Global in the week prior to 8 February 2021 and stated that paragraph to be correct. He was taken to paragraph [15] of the 2024 Ahmed affidavit,[26] in which he confirmed that NDS did not receive the 1 February 2021 audit report from the auditor in 2021 and stated that paragraph to be correct.
(c) Mr Ahmed was taken to NDS’s response to Key personnel suitability questions[27] in the notification to the Commissioner that he had become a director of NDS dated 13 April 2022 and asked about his “no” answer to question “6. Has the provider, or this key personnel been, the subject of any findings or judgment in relation to fraud, misrepresentation or dishonesty?” (Question 6). Mr Ahmed confirmed that the answer to Question 6 was false. He answered “no” to the question about whether the NDS application was still pending when he gave his answer to Question 6, stating his belief that NDS was still registered (under NDIA) at that time. It was put to Mr Ahmed that he had answered “no” to Question 6 because if he had disclosed the offence, it would have affected NDS’s application. Mr Ahmed said he did not think of it at the time, but he “did not think previous charges affected key personnel.” He agreed with the proposition that when he answered Question 6, the offence did not come to mind. and
(d) Mr Ahmed was shown the Notice of Order Made dated 14 May 2014,[28] in which his guilty plea to the charge obtaining financial advantage from a Commonwealth entity was recorded. He explained that the offence occurred in his final semester at university, at a time when he secured employment and failed to record that change of circumstances to the Commonwealth. Mr Ahmed said that he knew he was guilty, but his student allowance was not enough so he had found employment and then been very foolish in not reporting this employment to the Commonwealth. His offending had been detected when he lodged his tax return in 2023. Mr Ahmed initially stated that he was 22 or 23 years of age when the offending happened in 2011, but then conceded that he was 25 years old when it occurred.
[21] T726.
[22] T732.
[23] T799.
[24] T942.
[25] T460.
[26] T926.
[27] T582.
[28] T491.
In his re-examination about whether he received an audit report in February 2021, Mr Ahmed agreed that he had access to the 2 NDS email addresses in 2021. He said that when he subsequently prepared his affidavits for NDS’s Federal Court proceedings he had conducted searches of those NDS email addresses to see if the audit report had been received but could not find it in the emails.
In his re-examination about the circumstances of his offending, Mr Ahmed said the offence occurred when he was going from university to the workforce, that he was sorry for his actions and that he was a “different man now.”
COMMISSIONER’S SUBMISSIONS AS TO SUITABILITY OF MR AHMED
In determining, as part of the Reviewable Decision, that Mr Ahmed was not suitable for the purposes of subsection 73E(1)(e) of the NDIS Act, the Delegate of the Commissioner had regard to the matters summarised at paragraph [14] of the Respondent’s Submissions. These considerations are:
(a) the significant level of authority and responsibility of key personnel in the NDIS providers activities.[29]
(b) the need to ensure the financial sustainability of the NDIS.[30]
(c) the need, given that the NDIS is publicly funded, for the Commissioner to take “any offences relating to dishonest conduct in the context of monetary fraud with the utmost seriousness.”[31] and
(d) the Commissioner’s expectation of honesty and avoidance of fraud by key personnel when dealing with Commonwealth funding under the NDIS.[32]
[29] T100, [105].
[30] T101, [107].
[31] T101, [107].
[32] T103, [121].
The Commissioner submits that the Tribunal would not be satisfied that NDS’s key personnel, Mr Ahmed, is “suitable” for the purposes of subsection 73E(1) of the NDIS Act,[33] for the following 5 reasons:
(a) Mr Ahmed was the subject of a finding and judgment within the meaning of subsection 10(2)(f) of the NDIS Registration Rules, in that he pleaded guilty to an offence under subsection 135.2(1) of the Criminal Code Act 1995 (Cth). The offence occurred between 26 July 2010 and 7 July 2011 and involved dishonestly obtaining a financial advantage from the Commonwealth.[34] (Offending complaint)
(b) On 13 April 2022, when Mr Ahmed notified the Commissioner that he had become a director of NDS, he falsely stated that he had not been the subject of the finding and judgment referred to in (a) above. (False statement complaint)
(c) Mr Ahmed became a director of NDS on 18 May 2021. The notification to the Commissioner that he had become a director, referred to in (b) above, was 11 months after the event and involved a failure to provide that notice as soon as practicable after the event as he was required to under subsections 13A(1)(d) and (2)(f) of the NDIS Registration Rules.[35] (Late notification complaint)
(d) Mr Ahmed was in a position of management responsibility for aspects of NDS’s operations in the period November 2019 to February 2021, when an audit by SAI Global found significant non-conformities in those operations. (NDS management complaint) and
(e) Mr Ahmed denied receipt of an audit report in respect of the audit referred to in (d) above, when the report was in fact received by NDS and the denial was made in the context of court proceedings. (Receipt of audit report complaint)
[33] Respondent’s Submissions, [2].
[34] T55, 484; August 2024 Ahmed Statement, [17] – [23].
[35] August 2024 Ahmed Statement, [25].
As to the Offending complaint, the Commissioner says that there are some notable features of the offending, evidenced by the Notice of Order Made, to be considered by the Tribunal. These include the period of almost 12 months (26 July 2010 and 7 July 2011) over which the offending took place and the relative maturity of Mr Ahmed, at age 24 – 25 years old, when the offending occurred. In addition, the Commissioner says that although the offending did occur some time ago, that fact is countered by a pattern of more recent dishonest behaviour by Mr Ahmed[36] and the doubts held by the Commissioner that Mr Ahmed has sufficiently shown remorse for and accepted responsibility for, his conduct.[37]
[36] Respondent’s Submissions, [20].
[37] Respondent’s Submissions, [22] – [23].
Further, the offence of Obtaining financial advantage, section 135.2 of the Criminal CodeAct 1995 (Cth) (CC Act), appears in Part 7.3 of the CC Act which concerns “Fraudulent conduct”, Division 135 “Other offences involving fraudulent conduct”. It follows that there is little difficulty in characterising the Notice of Order Made as “a finding” in relation to “fraud” or “dishonesty” for the purposes of Question 6.
The False statement complaint is said to be significant when considering whether Mr Ahmed has been “reformed”. Mr Blaker’s submission is that the false answer by Mr Ahmed to Question 6 in April 2022, forms part of a thread of dishonest conduct which carries forward into more recent times.
The Commissioner refers to Mr Ahmed’s explanation for the false answer to Question 6 which is given in paragraph [32] of the August 2024 Ahmed statement:
“My reason for responding “no” was because I believed that the sentence of a 24-month good behaviour bond without conviction meant that the case was no longer relevant and had been cleared off my record after the 24 months. I realise now this was a mistake.”[38]
[38] T840.
The Commissioner says that the Tribunal should reject this evidence, together with Mr Ahmed’s oral evidence that the offence “did not come to mind” when answering Question 6, as not being credible. It is contended that the evidence is not credible because of the likelihood that Mr Ahmed answered Question 6 in that way because he wished to reduce the chances of NDS’s pending application for registration under section 73C of the NDIS Act from being refused.[39]
[39] Respondent’s Submissions, [27] – [28].
In relation to the Late notification complaint, the Commissioner refers to Mr Ahmed’s explanation for the delay provided in paragraphs [28] – [30] of the August 2024 Ahmed statement,[40] and submits that the reasons offered for the delay “are not (as Mr Ahmed seems to accept) reasons that could excuse a delay of 11 months, or any delay in breach of the condition.”[41]
[40] T940.
[41] Respondent’s Submissions, [33].
The NDS management complaint is focussed on the proposition that Mr Ahmed appears to have been in a position of responsibility at NDS at a time when the SAI Global audit of NDS made quite a few findings of major non-conformities with NDIS Practice Standards.[42] The Respondent’s Submissions provide a detailed overview of the SAI Global audit process, noting the history of major non-conformities by NDS with NDIS Practice Standards through the series of audit reports.[43]
[42] Respondent’s Submissions, [34].
[43] Respondent’s Submissions, [36] – [53].
That history of the audit process shows that major non-conformities in the operations of NDS persisted for a period of some years. In circumstances where Mr Ahmed was involved in, and had at least some responsibility for, the daily operations of NDS during the relevant period, the Commissioner contends that the Tribunal can be satisfied that this consideration weighs against Mr Ahmed’s suitability as key personnel of NDS.[44]
[44] Respondent’s Submissions, [54].
The Commissioner accepts that the Receipt of audit report complaint is not decisive of the suitability question but raises it as a further reason why the Tribunal could be satisfied that Mr Ahmed is not suitable. The issue arose in the context of the Federal Court proceedings in which NDS sought judicial review of the original decision to refuse NDS’s application to be a registered NDIS provider. An asserted ground of review was that “the Applicant had not been provided with a copy of the audit report from approved quality auditor on or after 2 February 2021.”[45] That ground was supported by affidavit evidence from Mr Ahmed that NDS did not receive the 1 February 2021 audit report.
[45] T453.
The Commissioner contends that NDS did in fact receive the 1 February 2021 audit report and that Mr Ahmed’s affidavit evidence to the contrary is false.[46] Mr Blaker submitted in his closing submissions that there is an inherent tension between Mr Ahmed’s evidence, on the one hand that NDS did not receive the 1 February 2021 audit report at all, and, on the other hand, that he undertook searches of NDS email accounts and could not find the 1 February 2021 audit report.
[46] Respondent’s Submissions, [61] – [63].
Mr Blaker made some concluding remarks in closing which encapsulate the Commissioner’s concerns about Mr Ahmed’s suitability as a key personnel of NDS. The first is the fraudulent nature of Mr Ahmed’s offending (the subject of the Offending complaint) which, given that it involved receipt of Commonwealth funding, has a special bearing on his suitability in the present circumstances. The second is the conduct around the False statement complaint, which tends to show that Mr Ahmed has not been relevantly rehabilitated because the false statement in 2022 relates to the offending which was the subject of the Offending complaint.
CONSIDERATION
The Tribunal, in its consideration of whether Mr Ahmed as key personnel is a suitable person to be involved in the provision of supports or services for which NDS will be registered, must have regard to Mr Ahmed’s past offending. The Tribunal is satisfied that the Notice of Order Made in the Heidelberg Magistrates Court dated 14 May 2014, is a finding involving “fraud” and/or “dishonesty”.[47] The relevance and weight of this finding must be balanced against the positive suitability attributes arising from Mr Ahmed’s background, qualifications and experience.
[47] T491.
Also important to the Tribunal’s decision about Mr Ahmed’s suitability as key personnel of NDS, is an assessment of Mr Ahmed’s apparent willingness to confront his past misconduct and his stated commitment to make good his statement that he is a materially different person to the person he was in 2011. The correct assessment of the likely risk of re-offending goes to the question of whether Mr Ahmed can now be trusted with the responsibility for managing Commonwealth revenue which his position in NDS entails.
In respect of his past criminal offending, Mr Ahmed says in the August 2024 Ahmed Statement:
“I am deeply ashamed of what I did. I was young and careless; I did not consider the broader damage my actions were having on the taxpayer. I fully appreciate how unsatisfactory my conduct was and for that reason I have never had a similar matter arise. I am embarrassed that after being supported by the taxpayer upon my arrival to Australia as a refugee and through my schooling, that I had repaid that support with incorrect reporting, particularly given that I was working at a Commonwealth department…[48]
I have not had any interactions with the police or justice system since my matter was discharged. I am a different person now to the young man I was 15 years ago. Now, at 39, married and a father to five children, I look back at those times with deep regret. I have since learned from this experience and have committed myself to living with integrity. I live a quiet life revolving around work and family. I remain embarrassed by my past offending and support young people facing challenges in my community through my engagement with [Somali Australian Council of Victoria].”[49]
[48] August 2024 Ahmed Statement, [19].
[49] August 2024 Ahmed Statement, [22].
Further, in relation to his subsequent failure to notify the Commissioner promptly that he had become a director of NDS, and his “no” answer to the suitability question about his past offending, Mr Ahmed’s evidence was:
“I acknowledge my mistakes through this notification process but emphasise: they were mistakes. I never intended to deceive the Commissioner about any of these matters. I apologise unreservedly for my mistakes. I have learned a lot in the three years since becoming managing director of NDS, including about my responsibilities to the Commissioner. I will not make the same mistakes again.”[50]
[50] T840.
The Tribunal is satisfied that Mr Ahmed has been, and is, prepared to confront his past failings (in respect of each of the Offending complaint, the False Statement complaint and the Late Notification complaint). He has, in both his written and oral evidence before the Tribunal, expressed his feelings of shame and remorse at what has occurred in the past. The Tribunal accepts that those feelings are genuine. Whilst there is undoubtedly an element of self interest in giving that evidence, the Tribunal nevertheless gives Mr Ahmed credit for his preparedness to come to the Tribunal and accept personal responsibility for the misconduct which lies at the heart of the Commissioner’s concerns as to suitability to be the key personnel of NDS.
There is no question in my mind that Mr Ahmed has necessary and appropriate background, skills and qualifications to be involved in the provision of supports and services by NDS. The Tribunal is also persuaded that Mr Ahmed is ideally placed because of those attributes, to provide NDIS services, through NDS, to the diverse community in Melbourne in which he lives and works.
Whilst the Tribunal cannot place great weight on all aspects of the SACOV Testimonial, because of the uncertainty as to how much the author of that document (Dr Haraco) knows of Mr Ahmed’s past offending, the Tribunal does give weight to the following factual matters which Dr Haraco attests to:
“… Mr Ahmed has been instrumental in developing programs such as educational, youth development and recreational activities (camping events) for the community. Mr Ahmed has contributed to the local community in Darebin and Banyule over the years by actively volunteering, which has helped disadvantaged members of our community.
Northern Disability Services currently delivers support services for disabled members of our community who hold NDIA managed plans. I therefore respectfully urge the department to consider the needs of our community and not to refuse Northern Disability Services’ application for registration as a registered NDIS provider.”[51]
[51] T284, 285.
It is clear from the SACOV Testimonial and from Mr Ahmed’s evidence that Mr Ahmed has a reputation and standing in his community at stake if he is provided with the opportunity to be the man behind NDS in servicing his community. The issue for the Tribunal is whether, on the evidence before the Tribunal, Mr Ahmed should be entrusted with that opportunity.
The Tribunal accepts NDS’s submission that Mr Ahmed’s past offending conduct has little to no predictive value when assessing whether he is likely to commit a future offence involving dishonesty. My assessment is that Mr Ahmed carries a low risk of re-offending as evidenced by the matters canvassed in these Reasons, including but not limited to:
(a) the offending conduct itself occurred more than 14 years ago.
(b) Mr Ahmed has maintained a clean criminal record since that time.
(c) Mr Ahmed is today a married man with a family including 5 children to support.
(d) In the period since 2021, when Mr Ahmed became managing director of NDS, he has improved the business, and NDS has prospered.
(e) Mr Ahmed has strong ties that bind him to his community.
(f) By reason of (c), (d) and (e), Mr Ahmed has a great deal to lose if there was to be any re-offending on his part. and
(g) whilst there were inconsistencies in some aspects of his evidence, his evidence as to his remorse, his statements that he is a changed person and that his stated commitment he will not repeat his mistakes should be, and are, accepted by the Tribunal.
CONCLUSION AND DECISION
The Tribunal is satisfied on the evidence before it, that NDS should be given the opportunity to make good its proposition (supported as it seems to be by the expression of goodwill from the community which NDS and Mr Ahmed will serve), that Mr Ahmed is suitable key personnel to be involved in the provision of supports and services by NDS.
Accordingly, the Tribunal sets aside the decision under review and in substitution decides that the Applicant be registered under section 73E of the National Disability Insurance Scheme Act2013 (Cth).
Date of Hearing: 1 July 2025
Date of Decision: 1 August 2025
Counsel for the Applicant: Mr A White
Solicitors for the Applicant: Mr Y Mohamud (QM Lawyers)
Counsel for the Respondent: Mr J Blaker
Solicitors for the Respondent: Ms K Dickinson (AGS)
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