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5.8 Judicial decisions and external reviews

The operations of the Agency and decisions made in the delivery of the NDIS are subject to scrutiny by external entities.

The Australian Human Rights Commission

The Australian Human Rights Commission (AHRC) is an independent third party which investigates complaints about discrimination and human rights breaches.

In 2019–20, the AHRC received four applications relating to employment in the Agency. Applications were made by two labour hire contractors and two Australian Public Service employees. Three applications are closed and one was awaiting formal closure by the AHRC as at 30 June 2020.

Administrative Appeals Tribunal reviews

The Administrative Appeals Tribunal (AAT) is responsible for independently reviewing a range of decisions made under the NDIS Act, including decisions about whether a person meets the access criteria to become a participant in the Scheme, and the supports provided under the Scheme. In 2019–20, 1,744 applications for review were received. The majority were finalised without a substantive hearing required. At 30 June 2020, 960 matters remained open.

The AAT handed down 30 hearing decisions in 2019–20. The AAT affirmed five decisions, varied four decisions, and set aside eight decisions. Eight decisions related to jurisdictional issues, four decisions related to practice and procedural issues and one related to an extension of time application. A summary of AAT decisions for 2019–20 that have had, or may have had, a significant effect on the operations of the Agency is included at Appendix 5.9.

Federal Court of Australia—Administrative Appeals Tribunal appeals

A large number of the Agency’s decisions are subject to merit review by the AAT. In 2019–20, there were three Full Federal Court appeals from AAT decisions. The appeal in National Disability Insurance Agency v WRMF ([2020] FCAFC 79) concerned the AAT’s decision to approve ‘sex therapy’ as a reasonable and necessary support. The Full Federal Court dismissed the Agency’s appeal. There have been two appeals filed in the matter of Klewer and the National Disability Insurance Agency (NSD2077/2019 and NSD216/2020). Both appeals are in relation to the AAT’s decision to make interlocutory orders requiring the appointment of a litigation guardian. The Federal Court dismissed the applicant’s first application and recommended the applicant apply under section 39B of the Judiciary Act 1903 ([2020] FCA 161). The applicant filed an application under section 39B of the Judiciary Act 1903 on 2 March 2020, which was ongoing as at 30 June 2020.

Reports by Australian National Audit Office

The ANAO conducts performance audits of the efficiency and effectiveness of the Agency’s operations and financial audits of Agency financial statements. In 2019–20, the ANAO released one performance audit report involving the Agency. This was the audit of the Bilateral Agreement Arrangements between Services Australia and Other Entities, tabled in Parliament in April 2020. The Agency agreed with all three recommendations which were directed at Services Australia and the other audited entities.

All ANAO recommendations, from both the performance and financial audits, are actively monitored and addressed within the necessary timelines with both executive and Board oversight.

Commonwealth Ombudsman

The Agency is a prescribed authority for the purposes of the Ombudsman Act 1976 (Ombudsman Act). Accordingly, the Office of the Commonwealth Ombudsman (OCO) may investigate complaints from individuals, groups or organisations about the administrative actions of the Agency. There are four types of primary contact that the Agency will generally receive from the OCO: complaint transfers, section 7A preliminary inquiries, section 8 investigations, and section 12 finalisations of investigation. More detail on these is provided below.

In some cases, the OCO will decline to investigate a complaint and will transfer it to the Agency. This decision is made where the OCO believes the matter can be better dealt with by the Agency and where the complainant needs OCO assistance in raising the matter with the Agency. In 2019–20, there were 150 complaint transfers from the Commonwealth Ombudsman to the Agency.

Section 7A of the Ombudsman Act enables the OCO to conduct preliminary inquiries and request information from the Agency. The information requested as part of a preliminary inquiry assists the OCO to determine if the matter needs to be investigated or can be resolved in another way. During 2019–20, there were 131 section 7A preliminary investigations received by the Agency.

A section 8 investigation occurs when the OCO initiates an investigation. The OCO will provide the Agency with background to the complaint, and request that the Agency respond to a number of questions. The OCO investigated 138 complaints about the Agency during 2019–20. As at 30 June 2020, 134 of these investigations have been closed.

In 2019–20, the Agency continued to provide the OCO with information regarding recommendations arising from the OCO report on the Agency’s handling of reviews, which was published in May 2018. A new report was published by the OCO in February 2020 following an investigation of the actions of the Agency in relation to Mr C. This report notes improvements already made by the Agency as well as five recommendations for further improvement.

New South Wales Ageing and Disability Commission

From July 2016, the NSW Ombudsman’s office has had a standing inquiry into allegations of abuse and neglect of adults with disability in the community, such as in the family home. The NSW Ageing and Disability Commission has now been established, and from 1 July 2019 has been the appropriate oversight body to better protect adults with disability and older people from abuse, neglect and exploitation in home and community settings. In 2019–20, the Agency received 73 requests from the NSW Ageing and Disability Commission.

NDIS Quality and Safeguards Commission

From 1 July 2019, the NDIS Quality and Safeguards Commission expanded operations from NSW and SA to include Vic, Tas, ACT, Qld and NT. It is now the appropriate oversight body for concerns raised about disability service providers in all states except WA. In 2019–20, the Agency received 93 enquiries from the NDIS Quality and Safeguards Commission across these jurisdictions.

Freedom of information

Under the Freedom of Information Act 1982 (FOI Act), a person may request access to information that is held by the Agency. In 2019–20, the Agency received 1,517 primary requests under the FOI Act. There were 30 requests for internal review of an access decision. The Agency received notification that 12 requests were subject to a review by the Office of the Australian Information Commissioner.