Attorney General for NSW v MM (a pseudonym) by his tutor Barbara Ramjan

THE COURT: The applicant, the Attorney General for New South Wales, seeks leave to appeal from a decision of Weinstein J (Attorney General for NSW v MM (a pseudonym) by his tutor Barbara Ramjan [2025] NSWSC 1074 (the primary judgment)) in which his Honour held that there is an operational inconsistency between s 138 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act) and s 67G of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) such that, to the extent of that inconsistency, the NDIS Act must prevail ([81] of the primary judgment).

The issue had arisen in the course of proceedings under s 123 of the MHCIFP Act in circumstances where orders had been made under s 138 of that Act requiring the production of documents relating to the behaviour or physical or mental condition of the respondent by his (now former) registered National Disability Insurance Scheme (NDIS) service provider, Little Blue Wren Services Pty Ltd (LBW). LBW produced a limited number of documents in compliance with those orders (which were marked as a Confidential Exhibit by the primary judge and were before this Court, separated into eight groups or documents).

The respondent contended that those documents had been obtained in contravention of s 67G of the NDIS Act, which, as set out in due course, precludes a person (except for the purposes of the NDIS Act or the Royal Commissions Act 1902 (Cth) (Royal Commissions Act)) from being compelled to produce certain documents or disclose certain information. The documents and information the subject of s 67G of the NDIS Act are documents in the possession of a person “because of the performance or exercise of his or her duties, functions or powers under [the NDIS Act]” and any matter or thing of which a person has notice “because of the performance or exercise of such duties, functions or powers”.

His Honour concluded, at [70], that:

His Honour proceeded, among other orders, to make the following declaration:

Framed in those terms, the declaration in effect assumes that the provision of supports by a registered NDIS provider involves the exercise of duties or functions “under” the NDIS Act (the conclusion his Honour reached at [70]).

The applicant contends that, on its proper construction, s 67G of the NDIS Act captures only documents which are held by the NDIS provider because of the exercise or performance of a power, function or duty the carrying out of which is enabled (or enabled and mandated), as opposed to merely regulated, by the NDIS Act; and that the documents produced by LBW do not fall within that scope.

The applicant seeks leave to appeal on the sole ground of appeal set out in his draft notice of appeal:

The respondent does not oppose the grant of leave and has filed a draft notice of contention seeking that the primary judge’s decision be affirmed on the following ground:

There was and is no dispute between the parties that there is a potential operational inconsistency between s 67G of the NDIS Act and s 138 of the MHCIFP Act. Rather, the dispute is as to the proper scope of the former and the extent to which it is operationally inconsistent with the latter. Prior to the hearing at first instance, the respondent issued a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) to the Commonwealth, State and Territory Attorneys-General, none of whom intervened in the proceedings (the Attorney General for New South Wales, as already noted, was joined as a party to the proceedings and hence not an intervener).

The application for leave to appeal was heard on 20 October 2025 concurrently with the hearing of the appeal in the event that leave were to be granted. This Court was asked to deliver reasons with expedition in light of the timeframe for the ongoing MHCIFP proceedings, as explained below.

For the reasons that follow, leave to appeal will be granted and the appeal allowed.

The background to the present application can be summarised briefly, as gleaned from the Joint Statement of Agreed Facts in the primary proceedings (and set out in more detail by the primary judge at [5]-[18]).

The respondent is an Aboriginal man in his late 50s, residing in West Tamworth in a property leased from a community housing provider (see [6] of the primary judgment). The respondent has a lengthy criminal history, including a number of offences involving violence, and a history of non-compliance with court orders and bail undertakings ([7] of the primary judgment).

The respondent has a mild neurocognitive disorder and is an NDIS participant; his current NDIS plan being due to expire in May 2026.

LBW, as already noted, is a registered NDIS service provider. LBW acted as the respondent’s support coordinator until June 2025. LBW prepared the respondent’s current NDIS plan. The respondent now has two NDIS service providers (only one of which, as we understand it, is a registered NDIS service provider).

In September 2022, the respondent became a forensic patient pursuant to s 72(1)(b) of the MHCIFP Act following a special hearing conducted in the District Court in which a qualified finding of guilt was made as to the commission by the respondent of an offence of aggravated sexual assault of a person under the respondent’s authority contrary to s 61J(1) of the Crimes Act 1900 (NSW). The respondent’s status as a forensic patient was set to expire on 27 May 2024.

On 3 November 2023, prior to the expiry of the respondent’s status as a forensic patient, a conditional release order was made by the Mental Health Review Tribunal in respect of the respondent (who had been in custody following his arrest in respect of the offence he was found to have committed).

The applicant commenced proceedings seeking an order that the respondent’s status as a forensic patient be extended by 18 months and, following a preliminary hearing before Sweeney J, an interim order was made extending that status for three months to 27 August 2024 (see Attorney General for New South Wales v MM (Preliminary) [2024] NSWSC 599). On 7 August 2024, after a final hearing before Dhanji J, the respondent’s status as a forensic patient was extended for 12 months, expiring on 16 August 2025 (see Attorney General for New South Wales v MM (a pseudonym) (bht Johnson) (Final) [2024] NSWSC 1030).

On 16 May 2025, the applicant again filed a summons seeking interim and final orders extending the respondent’s status as a forensic patient. An interim order was made by Ierace J on 31 July 2025, extending the respondent’s status as a forensic patient to 15 November 2025 (see Attorney General for New South Wales v MM (a pseudonym) (bht Ramjam) (Preliminary) [2025] NSWSC 941). It was in the context of the preliminary hearing before Ierace J on 31 July 2025 that the constitutional issue the subject of the present application arose.

The applicant, in his written submissions filed for the preliminary hearing, had relied on material obtained from LBW pursuant to orders pursuant to s 138 of the MHCIFP Act. The respondent, in his submissions, objected to the tender of the LBW material produced pursuant to the s 138 orders. Weinstein J (the primary judge) heard the constitutional issue raised by the respondent’s objection to the tender of that material on 1 and 4 September 2025.

The primary judge held that LBW could not be compelled to produce documents in its possession concerning the respondent’s behaviour and mental condition because s 138 of the MHCIFP Act was inconsistent with the operation of s 67G(a) of the NDIS Act ([62]-[63] of the primary judgment).

The final hearing of the application pursuant to s 123 of the MHCIFP Act to extend the respondent’s status as a forensic patient is listed before a judge in the Common Law Division for hearing on 7 November 2025. The applicant maintains that the LBW documents (the subject of the confidential exhibit before the primary judge) are relevant to the s 123 application in circumstances where there is disagreement between the court-appointed experts as to whether the respondent poses a risk of causing serious harm to others if he ceases to be a forensic patient (one of those experts, Dr Gordon Elliott, opining, without having reviewed the LBW records, that the respondent does pose a risk of causing serious harm to others if he ceases to be a forensic patient but not being convinced that it rises to the level of “unacceptable risk”; that the combination of forensic patient status and continued NDIS support is the most likely means of managing the respondent’s risk; and, while expressing the difficulty of offering a conclusive opinion that the least restrictive means of managing that risk is continued NDIS support alone). If the appeal is successful, the applicant wishes to make the LBW documents available to the expert(s) for review in that context.

Hence, the urgency that attends the determination of the present application.

As noted above, the respondent does not oppose the grant of appeal. In our view, leave should be granted. The proposed appeal raises an issue of the proper construction of s 67G of the NDIS Act which is of public importance and which has not been the subject of appellate consideration.

As submitted by the applicant, the effect of the findings of the primary judge is that a (potentially large) number of documents in the possession of NDIS providers will be shielded from the ordinary compulsory production processes of State criminal investigation, law enforcement and civil procedure. This was in effect conceded by Senior Counsel for the respondent in argument before this Court, though it was submitted that this was explicable by reference to the “extraordinary relationship” created by the NDIS Act between participants and registered NDIS service providers (the respondent more than once drawing a distinction between exogenous commercial activity merely regulated by statute and what the respondent identifies as the legislative policy encapsulated in the NDIS Act to “enlist” or “harness” the private sector to deliver supports for scheme participants within a system of registration). The respondent submits that, in taking steps to “harness” the private sector, the NDIS Act has created the conditions for a relationship of vulnerability between participants and providers under the scheme; and says that s 67G is a designedly broad provision intended to protect not simply private information but an important confidential relationship between registered providers and scheme participants.

In circumstances where there is a clear issue of public importance and we consider that the decision reached at first instance is attended by sufficient doubt to warrant reconsideration, leave will be granted for the appeal.

It is necessary to set out several of the provisions of the NDIS Act, to which we were taken during oral submissions by Senior Counsel for both parties, in some detail.

At the outset, we note that the NDIS Act creates a body known as the National Disability Insurance Agency (Chapter 6), the functions of which include “delivering” the Scheme (see the simplified outline in s 8), headed by a Chief Executive Officer (CEO) and governed by the Board of the Agency; and, since amendments were made in 2017, establishes a Commission (the NDIS Quality and Safeguards Commission) and the office of the NDIS Quality and Safeguards Commissioner (Chapter 6A), the functions of which include registering and overseeing the operation of NDIS providers and managing and resolving complaints about NDIS providers.

The objects of the NDIS Act are specified in s 3(1), including:

The respondent here emphasises that the provision of supports is itself a statutory object (not merely the regulation of the provision of such supports), referring to sub-s (1)(d).

Section 3(2) provides that the statutory objects are to be achieved by:

The respondent relies on sub-s (2)(c) as indicating that Parliament’s design choice was to enlist (or harness) the private sector to achieve the statutory objects of the NDIS Act. The applicant also, though in the context of different submissions, points to the legislative expectation that supports and services will be provided both pursuant to and outside the NDIS.

Section 3(3) provides that, in giving effect to the objects of the NDIS Act, regard is to be had to the matters set out in sub-ss (b)-(d), including the provision of services by other agencies, Departments or organisations and the need for interaction between the provision of mainstream services and the provision of supports under the NDIS.

Section 4 (headed “General principles guiding actions under this Act”) sets out various principles in relation to people with disability and their families (see, for example sub-ss (6) and (7)) and includes:

The respondent here emphasises the recognition of the right to choice and control of participants to go into the marketplace to obtain supports and services; and submits that this is indicative of an intention by the legislature to create the market for, and the supply of, services by statutory intervention. The applicant, on the other hand, points to the reference in sub-s (14) to co-ordination of supports both provided under the NDIS and provided outside the NDIS as going to the regulation of those supports.

While sub-s (17) refers only to functions and powers (not duties), the respondent emphasises that there is recognition in the statute that other persons and bodies will perform functions and exercise powers under the NDIS Act (i.e., not simply service providers). Insofar as the heading refers to “actions” under the NDIS Act, the respondent submits that nothing turns on this for the construction of s 67G.

Section 8, as adverted to above, sets out a simplified outline of the NDIS Act, including an articulation of: what the NDIS comprises; the administrative provisions supporting the operation of the NDIS; and provision for the regulation of persons and entities who provide supports and services to people with disability “under” the NDIS. (Pausing here, this is in terms a reference to “under” the scheme as opposed to under the NDIS Act. We see this as a significant textual indicator that the “duties, functions or powers” referred to in s 67G are those directly imposed or conferred by the NDIS Act, particularly where the scheme is defined by reference to the “arrangements” set out in identified chapters of the NDIS Act (see below).) Section 8 recognises that a person with a disability may receive supports or services from registered NDIS providers but also may receive supports and services from provider who are not registered.

Section 9 (Definitions) contains definitions of terms used in the NDIS Act, including definitions of “Agency officer”, “Commission officer” and “participant”. The term “National Disability Insurance Scheme”, as noted above, is defined as meaning “the arrangements set out in Chapters 2 and 3”. Chapter 2 of the NDIS Act deals with assistance (including provision of general supports and funding) to people with disability who are not participants; chapter 3 deals with the provision of general supports, including funding, to or in relation to participants.

“NDIS amount” is defined as meaning an amount paid “under” the NDIS in respect of supports (other than general supports) funded under a participant’s plan.

The term NDIS provider is defined as meaning:

The applicant notes that this defines an NDIS provider by reference (in (a)) to the receipt of funding, not to the duties, powers or functions performed or exercised by that person. We note here that the definition of NDIS provider again is tied to the scheme, i.e., the “arrangements” set out in chapters 2 and 3 of the NDIS Act.

Section 9 also includes definitions of “protected Agency information” and “protected Commission information”.

A “registered NDIS provider” is defined as a person or entity who is registered under s 73E; and, correspondingly, “registered” means registered under s 73E. One significance of registration is that certain supports (namely, those for which funding is managed by the Agency) can only be provided by registered NDIS providers. There is no prohibition on supports or services being provided by unregistered NDIS providers (other than the supports for which funding is managed by the Agency). This is relevant to note because, although the present application involves a registered provider (and the declaration made by the primary judge was in terms confined to the position of registered providers), as emphasised by Senior Counsel for the respondent at AT 31.15, when construing s 67G one must do so in the context of its potential operation to NDIS providers other than registered NDIS providers as well as to registered NDIS providers (as Senior Counsel for the respondent accepts).

Chapter 3 of the NDIS Act headed “participants and their plans” sets out in Part 1 the steps to be taken to become a participant (s 18ff). Part 2 deals with participants’ plans (s 31 setting out the principles relating to plans, s 32 providing that the CEO must facilitate the preparation of the participant’s plan; ss 32D and 33 setting out the matters that must be included in a participant’s plan (the difference being between old framework plans and new framework plans – the respondent stating that the latter is the relevant provision for the purpose of the respondent’s plan; see AT 34.43; cf AT 35.10)). Subsection 33(6) provides that, to the extent that the funding for supports under a participant’s plan is managed by the Agency, the plan must provide that the supports are to be provided only be a registered NDIS provider.

Division 3 of Part 2 of Chapter 3 deals with managing the funding for supports “under” the participant’s plans (reference here being made by the respondent to s 42 which sets out the meaning of “managing the funding for supports”). Section 45 deals with payment of amounts payable under the NDIS in general and s 45A with payment of amounts where there is “need for a claim”. Section 45A provides that an amount is not payable under the NDIS in respect of the acquisition or provision of a support service unless the CEO is satisfied that a claim for payment has been made in accordance with sub-ss (2), (3) and (5).

Those subsections specify, relevantly, that: a claim may be made only by the persons there specified; a claim must be in the approved form (if any) and include any information and be accompanied by documents required by the CEO; and the period within which a claim must be made. (Section 45A is relied upon by the respondent in the present case as a specific duty imposed on the registered NDIS provider under the NDIA Act because of which the respondent says LBW held each of the documents produced under compulsion – see below.)

Chapter 4, headed “Administration” includes provisions enabling information to be provided or documents to be produced at the request of the CEO or the Commissioner: s 53, a requirement by the CEO in the circumstances specified requiring information or documents from a participant or prospective participant to be provided to the Agency; s 55, a requirement by the CEO to obtain the provision to the Agency of information or documents from other persons; s 55A, a requirement by the Commissioner that a person other than a prospective participant or person receiving support or services from an NDIS provider for information or documents to be provided to the Commissioner. In each case, the heading to the section indicates that this is to ensure the integrity of the NDIS.

In the case of a requirement under ss 55 or 55A, this must be by written notice and the notice must specify at least 14 days as the period within which the information or document is to be given or produced (s 56). It is an offence to refuse or fail to comply with a requirement under ss 55 or 55A, without reasonable excuse (s 57).

Part 2 of Chapter 4, headed “Privacy”, contains provisions dealing with the protection of information held by the Agency (Division 1, ss 60-67) and by the Commission (Division 2, ss 67A-67F). Relevantly, there is provision, despite s 67G, for the CEO and the Commissioner to disclose information acquired by a person in the performance of his or her functions or duties or in the exercise of his or her power under the NDIS Act in certain circumstances (see ss 66 and 67E). (Although in these sections “functions” and “duties” are coupled together separately from “power”, this is most likely due to the different nouns applicable to each (performance as opposed to exercise).)

Division 3, headed “Information generally” contains the critical provision for the purposes of the present application (s 67G).

Section 67G provides:

The respondent describes this as a “gap-filling” provision. We refer in due course to the circumstances in which s 67G was inserted into the NDIS Act in 2017, which in our view tend against such a description.

Part 3A of Chapter 4 deals with NDIS providers. Division 2 applies only in relation to registered NDIS providers.

As to the requirements for and process of registration, s 73B provides:

Section 73E (headed Registration as a registered NDIS provider) includes subs (2):

Section 73F (the second of the sections relied on in the respondent’s notice of contention as imposing specific duties on registered NDIS providers because of which the documents in this case were in the possession of LBW) sets out a number of standard conditions to which registration is subject. Additional conditions may be imposed under s 73G. Sections 73F-G provide:

Section 73H allows further conditions to be imposed through the NDIS Rules (of which a number are here relied upon by the respondent, as explained in due course).

Section 73J (the third of the statutory provisions specified in the respondent’s notice of contention) provides that it is an offence if a person is a registered NDIS provider and breaches a condition to which the registration is subject. Section 73J provides:

Sections 73N and 73P provide for the suspension and revocation of the registration of a registered NDIS provider if, relevantly, the Commissioner of the NDIS Quality and Safeguards Commission (the Commissioner) reasonably believes that a person has contravened, is contravening, or is proposing to contravene, the NDIS Act.

Registered NDIS providers are subject to s 73Q, which provides:

While the applicant accepts that this section imposes an obligation to keep certain records, the applicant argues that this is imposing an obligation that a provider of supports and services is able to do otherwise than “under” the NDIS Act (the applicant’s argument being that, for the purposes of s 67G, a duty, power or function must be something “enabled” by the NDIS Act not merely regulated, or dictated to, by the NDIS Act) (see AT 26.4). The applicant accepts that if “duty” means an obligation that arises from or is imposed by the NDIS Act then s 73Q would be engaged (see AT 25.30) but argues that while the source of the obligation to keep records is the NDIS Act, the lack of coherence and other indicators that Parliament did not expect registered providers or others to be covered by s 67G calls for an alternative construction (see AT 27.5). Pausing here, we note that the respondent in oral submissions accepted that he could not point to specific obligations in the NDIS Act requiring the particular records in question to be kept.

The applicant points out that non-registered NDIS providers may also be subject to record-keeping obligations, of different scope, under s 46(3), which provides:

Division 3 of Part 3A of Chapter 4 then deals with “Quality assurance” and is not restricted to registered NDIS providers.

Section 73T provides:

Section 73V then provides for approved quality auditors.

Division 4 of Part 3A, Chapter 4, is headed “NDIS Code of Conduct”. Section 73V provides that NDIS rules may make provision for a code of conduct that applies to either or both of NDIS providers (whether registered or not) and persons employed or otherwise engaged by NDIS providers or members of the key personnel of NDIS providers. It is an offence to contravene the NDIS Code of Conduct where applicable:

The applicant points to s 73V as highlighting the difficulty with s 67G in its application to corporate NDIS providers on the respondent’s interpretation. The applicant points out that s 67G does not operate where a person has in his or her possession a document only by exercise of a duty, power or function by someone other than that person; and submits that the respondent’s construction involves an incoherence between the position of corporate providers (or those who provide services through, say, a partnership structure) and others.

Division 5, headed “Complaints management and resolution” contains s 73W on which the respondent’s notice of contention next relies. Section 73W provides:

The applicant notes that this is not limited to complaints in relation to funded services or scheme participants.

Division 6, headed “Incident management – registered NDIS providers”, includes ss 73Y and 73Z:

The respondent’s notice of contention also specifies s 73Y of the NDIS Act as a duty which engages s 67G in this case.

Division 8, headed “Compliance and enforcement” deals with monitoring powers, providing that this Part (Part 3A) is subject to monitoring under Part 2 of the Regulatory Powers Act. Section 73ZE provides:

Section 73ZR provides:

As to other relevant provisions, we note that the NDIS Act expressly provides for the “functions” of the CEO of the Agency (s 159), the Commission (s 181B); and the Commissioner (s 181E); and that the NDIS Act provides for other persons to be engaged to assist the Agency or the Commission, such as: staff of the Agency (s 169); persons engaged to assist the Agency (s 170); staff of the Commission (s 181U); consultants to the Agency (s 171) or to the Commission (s 181V); members of the Board of the Agency (Ch 6, Pt 2) or of the Independent Advisory Council (Ch 6, Pt 3); inspectors or investigators (s 73ZR); the scheme actuary (s 180A) or the reviewing actuary (s 180D). The specification of “functions” in relation to the CEO, Commission and Commissioner provides some support for the notion that “functions” is used in s 67G of the NDIS Act in the context of official or public functions rather than in a more generic sense of things that a person may do otherwise than as required or enabled by the NDIS Act.

As noted earlier, s 67G of the NDIS Act was not inserted into the NDIS Act until 2017. The predecessor section to s 67G was s 65, which was contained in Part 2 of Ch 4 of the NDIS Act as initially enacted. Section 65 was in almost identical terms but did not include a carve-out referring to the Royal Commissions Act.

The Explanatory Memorandum concerning the NDIS Act as initially enacted, stated that s 60 (“Protection of information held by the Agency etc.”) was being enacted because “[a] large amount of personal information will likely be acquired by the Agency through the operation of the scheme, and the protection of that information and a person’s right to privacy is considered paramount” (Explanatory Memorandum, National Disability Insurance Scheme Bill 2013, p 26). Further, it was noted that s 65:

Section 67G of the NDIS Act was inserted into the NDIS Act in 2017, at the same time that the Commission was established (see the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017 (Cth) (Amending Act)). These amendments followed an independent review conducted pursuant to s 208 of the NDIS Act (Explanatory Memorandum, National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 (Amending Act Explanatory Memorandum)). The Outline at the commencement of the Explanatory Memorandum for the amending bill included the statement that:

Reliance is placed by the applicant on the statement in the above passage as to the continued availability of universal complaints and redress mechanisms.

The Amending Act established the Commission and the Commissioner. The Amending Act also effected a restructure of Part 2 of Chapter 4. The provisions contained in Part 2 of the NDIS Act as initially enacted (ss 60-67) were put into Division 1, headed “Information held by the Agency”, and were the subject of amendments to clarify that they applied only to the Agency. A new Division 2 was introduced, headed “Information held by the Commission”, and contained provisions for the protection of information provided to the newly-established Commission. Section 65 was repealed and re-enacted as s 67G as part of the newly-established Division 3, headed “Information generally”.

At page 13, the Amending Act Explanatory Memorandum said of the then proposed (now) s 67G:

The applicant places emphasis on the reference here to “protection and discretion”. The applicant submits that, unlike ss 66 and 67E, s 67G does not in terms confer a discretion. The applicant says that this is because s 67G is not framed as a secrecy provision that prevents disclosure (cf the offence provisions in ss 62 and 67B); rather, it preserves a discretion in the sense that s 67G provides an immunity from being “required” to produce or disclose. The applicant submits that such an immunity (untethered to a secrecy provision and therefore preserving a “discretion” to disclose) is readily understandable in relation to Commonwealth officers and other persons performing public functions under the NDIS Act (such as those referred to at [75] above) but argues that it is difficult to understand in relation to private service providers who are regulated under the NDIS Act. (The respondent cavils with this.)

The Amending Act also substantially amended the system of registration for providers. Prior to 2017, the registration of providers was dealt with in Part 3 of Ch 4 (ss 69-73). At that time, the only section concerning the obligations of registered providers was s 73, which allowed the NDIS Scheme rules to make provision in relation to a range of matters, including compliance with prescribed safeguards, and the consequences of a failure to comply with the NDIS Act. Part 3A moved the registration function from the Agency to the newly-established Commission, and introduced new processes for registration and quality assurance.

Turning then to the critical issue for present purposes, the interpretation of s 67G, the parties’ submissions may be summarised as follows.

As already noted above, the applicant’s contention is that, on its proper construction, s 67G of the NDIS Act captures only documents which are held because of the exercise or performance of a power, function or duty the carrying out of which is enabled (or enabled and mandated) by the NDIS Act.

In this regard, the applicant contends that the obligations imposed on NDIS providers (whether registered or unregistered) are in the nature of the regulation of private entities; regulating or placing conditions on the provision of particular services but not conferring statutory powers on registered providers. The applicant argues that the expectation is that NDIS providers will be private entities (referring by way of example to the object in s 4(15) of the NDIS Act – see above); and that there is a qualitative difference between the regulation under the NDIS Act of the activities of NDIS providers and the imposition or conferral of public duties, functions or powers conferred on officers and other persons performing a public function under the NDIS Act (such as the persons referred to at [75] above).

The applicant’s contention is that the qualitative difference between the exercise of public or administrative functions on the one hand and the public funding of persons engaged in private activities on the other is best recognised by holding that the former category involves duties, powers or functions which are enabled, or enabled and mandated, under the NDIS Act. The applicant submits that, where that is the case, possession of the documents may be seen to “derive from the enactment” (referring by way of analogy to the approach taken in Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 (Tang) at [89]; Fuller v Lawrence (2024) 99 ALJR 103; [2024] HCA 45 (Fuller) at [13], [16], to which we refer in due course).

The applicant thus contends that s 67G is engaged by a duty, power or function which enables a person to do something which the person could not otherwise do and which causes the person to possess the protected document or acquire the protected information.

By way of consideration of the text of s 67G, the applicant points to the potentially broad import of the words “power”, “function” and “duty”, noting that those are words capable of different interpretations in different statutory contexts (referring to Canadian Pacific Tobacco Company Ltd v Stapleton (1952) 86 CLR 1 at 6; [1952] HCA 32 (per Dixon CJ); Jordan v Second Commissioner of Taxation [2019] FCA 1602 at [56]ff per White J).

The applicant submits that the language of “power” and “function” under the NDIS Act is not apt to refer to an activity that a person can do independently of the NDIS Act. In this sense, the applicant says that it reflects the distinction that an entity created by statute, or the functions of an office created by statute, can only be exercised in the manner contemplated by that statute or by some other statute; whereas private individuals do not derive their powers to act from the NDIS Act and nor do corporations.

Further, the applicant submits that the terms “power”, “function” and “duty” should not be considered in isolation; rather, the applicant contends that the provision uses a composite expression and that “duty” should be understood in the same way as “power” and “function” (i.e., as referring to something that depends on the legislation to enable it to be done or to have effect); and hence the applicant argues that something would not be a “duty, power or function” under the NDIS Act if the NDIS Act merely regulates or imposes conditions on an activity in which a private person or entity could otherwise engage.

It is submitted that there are textual factors that support this interpretation, the applicant pointing to the language of “supports and services provided under the arrangements set out in Chapter 2” (including in the definition of “NDIS provider” in s 9), which the applicant argues is apt to capture the overlay of the obligations under the NDIS Act to the pre-existing sphere of activity of a registered provider (i.e., the provider’s business), in contrast to that provider exercising or performing powers, duties or functions under the NDIS Act. The applicant contrasts reference to the provision of supports and services “under the arrangements” set out in Chapters 2 and 3 of the NDIS Act with the reference to the performance or exercise of duties, powers or functions “under the NDIS Act”. The applicant also places weight on the distinction drawn in the statute between the NDIS (i.e., the Scheme), which is defined as the arrangements set out in Chapters 2 and 3, and the NDIS Act itself. The applicant notes that supports or services are provided, and amounts are paid, under the “Scheme” (the applicant referring by way of example to ss 3(1)(ga), 8, 24, 35, 45, 45A).

The applicant submits that the words “performance or exercise” in s 67G suggest that the “powers”, “functions” and “duties” in that section refer to positive actions enabled (or enabled and compelled) by the NDIS Act, rather than obligations that require compliance when exercising a power or capacity which is non-statutory or which is conferred otherwise than by the NDIS Act. The applicant contrasts this with s 203, which refers to an “obligation ... imposed” or “a thing the entity would be permitted to do”, and s 6, which refers to “meeting obligations under, or for the purposes of” the NDIS Act. The applicant argues that this difference in language supports a conclusion that the word “duties” (as part of the composite expression “duties, functions or powers”) in s 67G does not encompass obligations or activities that are merely regulated by the NDIS Act.

In that regard, the applicant submits that the obligations imposed on registered NDIS providers go well beyond the circumstances covered by sub-paragraph 1(c) of the declaration made by the primary judge (set out at [5] above); that they would extend to the obligations to implement complaints management/resolution systems (s 73W) and incident management and reporting systems (ss 73Y-73Z) and, if consideration is given to obligations that arise under the rules established for the purposes of the NDIS Act, they would include obligations under the National Disability Insurance Scheme (Practice Standards — Worker Screening) Rules 2018 (Cth). (As will be seen in due course, the respondent here invokes both ss 73W and 73Y, as well as s 73T and certain of the obligations under a number of the NDIS Rules in arguing that s 67G is engaged in relation to various of the documents here in dispute.)

The applicant argues that, if these obligations are covered by s 67G, then its scope is surprisingly broad (and materially impairs a great range of State regulatory and law enforcement activities); and, conversely, if these matters are not covered, then it follows that “duties” should not simply be equated with “obligations”, but should rather be read in a narrower sense to produce a more coherent result. The applicant argues that, once it is accepted that “duties” should be read in a narrower sense, there is every reason to prefer a narrower construction of s 67G of the kind he proposes.

As to contextual considerations and the purpose of s 67G, the applicant points to the objects of the NDIS Act (set out in s 3) and submits that the NDIS Act seeks to balance a number of different objectives, including that specified at s 3(1)(ga), with a range of different guiding principles. The applicant refers in particular to the guiding principles set out at s 4(6), s 4(7), s 4(10) and to the recognition that the NDIS Act does not exclusively cover any field of regulation but is intended to supplement existing legislative regimes and supports, and to operate concurrently with other Commonwealth and State regimes (referring by way of example to ss 3(3) (c)-(d), 4(14)-(15)). As adverted to above, the applicant emphasises that the Amending Act Explanatory Memorandum to the legislation states that “universal complaints and redress mechanisms” will continue to be available.

The applicant says that s 67G provides an immunity from requirements to produce (documents or information) but no obligation of secrecy, and has no explicit carve-out referable to the consent of the disabled person. It is submitted that, consistent with the stated purpose in the explanatory memorandum, s 67G is not primarily concerned with protecting individuals’ privacy (something which is preserved in other legislation and by Part 2 as a whole), but is rather concerned with ensuring that, if information or documents are provided to persons exercising public or administrative functions under the NDIS Act, then courts, tribunals or other authorities cannot force their disclosure for unrelated purposes.

As indicated above, the applicant argues that the consequence of the primary judge’s reasoning (that registered NDIS providers would be immune from many of the ordinary investigative processes of State-based litigation and law enforcement) would materially impair the protections offered by a range of State-based regulatory bodies, including in relation to criminal activity, occupational health and safety, professional regulation and fair trading. Insofar as the primary judge considered that this concern would be met through the mechanisms under the NDIS Act for a request to be made to the Commissioner who might then obtain documents from the provider (see at [73]-[74]), the applicant points out that there is no ability to compel production by the Commissioner, and that this process can be expected to take time (including that, pursuant to s 73J(2)(i), a request for information from the registered NDIS provider must specify a period for compliance of no less than 14 days). The applicant submits that this runs counter to the statement in the Amending Act Explanatory Memorandum that universal complaints and redress mechanisms would remain available. The applicant says that the scope of protective laws enacted by the States (enforceable through the police, professional regulators, SafeworkNSW and other equivalents), are thus materially impaired in respect of NDIS participants on the primary judge’s construction of the provision.

Further, it is submitted that the primary judge’s reasoning would have the surprising consequence that NDIS participants would themselves be precluded from requiring that they be given access to documents concerning them (for instance, under privacy law) unless they persuade the Commissioner to obtain the documents and disclose them under s 67E. The applicant submits that this would not advance the objects described above. Noting that, in argument before the primary judge, the respondent submitted that s 67G does not prevent consent by the participant or the participant’s guardian from consenting to disclosure of information about the provider or the participant itself disclosing the information (which the applicant suggests amounts to the proposition that s 67G should be read down so as not to apply to requirements imposed by the NDIS Act on participants) (see transcript 4/9/25; p 46.7), the applicant submits that the more coherent and textual pathway to that outcome is to construe the words “duties, functions or powers” so as not to encompass every activity carried out by a registered NDIS provider.

The applicant accepts that the interpretation adopted by the primary judge would protect the privacy of people with disability but says that the dignity of people with disability would be better served through State law enforcement bodies having the same access to documents and information held by a registered provider (by, for example, police, or other similar entities) as those bodies have in respect of any other provider of social or medical services. It is submitted that the dignity of people with disability would also be better served if they could, when otherwise empowered to do so, compel the production to them of their own documents. In oral submissions, the respondent said that a partial answer to the applicant’s submission that, on the respondent’s construction, participants could not compulsorily access their own information may be found in the NDIS Rules, the respondent referring by way of example to cl 12(2) of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) (NDIS Provider Registration and Practice Standards Rules), which requires registered providers to ensure that a participant’s information is easily accessible to the principal (see AT 41.45). Of course, that suffers from the difficulty (recognised by both parties) of approaching construction of the legislation by reference to the NDIS Rules put in place pursuant to the legislation.

The applicant argues that the legislature’s desire to balance the competing interests between participant privacy and other factors is recognised in ss 67E(1)(a), (1) (b) (i), (iii) and (iv) and in s 67F.

Further, the applicant points out that the breadth of the interpretation preferred by the primary judge has the effect that documents that do not contain any private information of participants will fall within s 67G. It is noted that s 67G is not confined to documents containing the private information of a participant; it is defined by reference to the performance of duties, functions or powers under the NDIS Act. So, for example, the applicant argues that an occupational health and safety investigation seeking documents concerning the processes and protocols utilised by a registered provider may be impaired on the basis that those documents were created because of the performance or exercise of duties, functions or powers under the NDIS Act.

While in Smith v Victoria Police (2012) 36 VR 97; [2012] VSC 374 (Smith v Victoria Police), a broader interpretation of the phrase “the exercise of functions under this Act” was preferred as better promoting the objects and purpose underlying the Whistleblowers Protection Act 2001 (Vic) (see Ferguson J, as her Honour then was, at [55]), the applicant emphasises that service providers may, but need not be, registered NDIS providers and the applicant contends that the narrower construction of s 67G is the more coherent construction.

As to the respondent’s draft notice of contention, the applicant accepts that there is an available argument that the breadth of s 67G could be curtailed by the operation of the words “because of”. However, the applicant submits that it is not clear that all, or even the majority, of documents held by a registered provider would be held because of a duty, power or function under the NDIS Act. In those circumstances, the applicant says that much would turn on the particular facts and the circumstances in which the document was created and that this makes the respondent’s interpretation unattractive as it would leave registered providers or State-based regulators to make a difficult judgment about precisely which documents would fall within the prohibition on compulsory production. (Indeed, the exercise carried out on a review of the confidential documents the subject of the present proceedings would illustrate this.)

Moreover, the applicant argues that if primacy is given to the factual question of causation, then whether something fell within s 67G might turn on the evidence as to why the record was made or kept by the particular provider, which might lead to inconsistent outcomes (such as if one provider might be protected by s 67G because s 73Q is the only reason the records are retained, whereas another naturally prudent provider who might keep records regardless of what s 73Q required might be outside the protection of s 67G). The applicant argues that the difficulties with this outcome give some weight to the suggestion that s 67G was not intended to capture provisions such as s 73Q, and supports the narrower interpretation of s 67G.

In oral submissions, the respondent put his case in two ways: first, as reflected in the draft notice of contention, the more narrow contention that each of the confidential documents produced by LBW in answer to the s 138 order was created by LBW and therefore in its possession because of the performance by LBW of record-keeping duties under the NDIS Act; and, second, the broader alternative contention that, if any of the LBW documents is found not to have been created in the performance of a statutory duty, they were created in the performance of LBW’s ordinary functions and those functions were functions “under” the NDIS Act.

On the principal way in which the argument is put (the issue raised by the notice of contention), the respondent says it is not necessary to enter into debate as to the meaning of “under”. On the alternative way in which the argument is put, the respondent accepts that, in a sense LBW, was not exercising powers conferred directly or immediately on it by the NDIS Act but submits that the purpose and intent of s 67G requires a broader construction of the word “under”, extending beyond functions that are conferred directly or immediately by the statute.

The respondent places much emphasis on the legislative policy of the NDIS scheme being to “harness” or “enlist” the private sector to provide supports and services (an insurance-based approach) and the confidential nature of the relationship between providers and participants. As to the latter, the respondent argues that the content of s 67G includes a concern with privacy, pointing to the structure of the NDIS Act, in which s 67G (dealing with information generally) appears after divisions dealing specifically with information held by the Agency and formation held by the Commission. (The applicant cautions against the making of a priori assumptions about the scheme setting up particularly “close” or “extraordinary” relationships, and then interpreting the legislation by reference to those assumptions.)

The respondent submits that s 67G is intended to extend beyond the Agency and the Commission and that this is reinforced by the broad language of s 67G which applies to “a person”. The respondent submits that, in a scheme where providers will hold information about participants of a kind that the Agency or Commission might hold, the privacy provisions are being dealt with by s 67G in relation to those providers; and argues that duties “under” the NDIS Act must encompass duties imposed not just on officials but others who are subject to the NDIS Act.

The respondent cavils with the proposition that the NDIS Act simply regulates private sector entities exercising general law liberties; rather, the respondent contends that the scheme is substantially to create that private sector and that any general law capacity to provide disability services is, in substantial respects, extinguished by the NDIS Act and replaced with a conditional permission to do so subject to the scheme for registration. (The applicant rejects the suggestion that the general law capacity to provide disability services has been extinguished by the NDIS Act and replaced with a conditional permission to do so.)

The respondent argues that the applicant’s construction would undermine a designedly broad provision intended to protect not simply private information but an important confidential relationship between registered providers and NDIS participants. It is submitted that this fundamentally differs from “mere regulation” of exogenous or private commercial activity. In this context, the respondent refers to various of the provisions relating to registration and funding of registered providers, as well as the statutory objects of the NDIS Act (which have been set out earlier in these reasons).

As to the construction of s 67G, the respondent argues that the references to “duties”, “functions” and “powers” are distinct and that the natural reading of the phrase is a disjunctive one intended to capture the variety of activities under the NDIS Act. The respondent submits that the words should not be read together as a composite expression because “duty” and “power” point to distinct concepts. The respondent argues that the components of the expression “duties, powers or functions” cannot be read ejusdem generis if they do not express a common genus.

The respondent says that “duties”, especially when read with the reference to “any person” in s 67G, is broad enough to encompass obligations owed by any person by reason of the NDIS Act; and that it extends, in its ordinary and natural meaning, to the many obligations to which registered providers are subject including record-keeping and incident reporting obligations.

As to the concept of “functions”, the respondent submits that this is a broad concept and that, in characterising a provider’s “functions” under the NDIS Act, one may look to the ordinary conceptions of the “role” that a provider performs (referring by way of example to the approach adopted in Smith v Victoria Police as to the “functions” of the Commissioner in that case – see at [47]; [50]). In that regard, the respondent says that the role of a registered provider under the NDIS Act is to deliver supports in a manner governed by the NDIS scheme. The respondent argues that, when a private provider is providing the supports for which it has been registered in a manner governed by the NDIS scheme, that provider is performing functions within the meaning of s 67G.

As to the meaning of “under” in the phrase “under the NDIS Act”, the respondent says that this is both protean and largely functional. The respondent argues that the effect of the applicant’s construction is to read the word “under” as “conferred or imposed by” in a narrow sense and says that there is nothing in the text, policy or function of s 67G to warrant such a narrow construction (cf, Ex parte Zietsch; Re Craig (1944) 44 SR (NSW) 360). The respondent submits that, given the remedial policy of protecting the privacy of participants (which underpins Pt 2, Ch 4 of the NDIS Act), the word “under” should be given the breadth it naturally admits.

The respondent submits that private registered providers are not performing functions outside the NDIS Act; rather, that the NDIS Act has created a new statutory species of professional activity. The respondent argues that providers who are registered under an Act and who, by rendering scheme services are exercising a permission given to them by the NDIS Act, are readily seen to be performing functions “under” that Act.

The respondent says that the NDIS Act itself describes the functions of registered providers as functions “under” the NDIS Act, referring to s 4, which refers to general principles guiding “actions under this Act”; and to references in the NDIS Act to supports provided “under” the NDIS (s 4(14)) and to services “provided under” the scheme (ss 3(1)(ga) and 181E(a)). The respondent also refers to s 4(17), which he says makes clear that the principles are to be observed not only by identified public institutions, but also by “any other person or body” performing functions under the NDIS Act.

The respondent argues that, to exclude registered providers from the scope of s 67G and to limit the provision to public bodies on whom the NDIS Act directly confers public power, would be inconsistent with Parliament’s choice to extend s 67G to “any person” (and submits in effect that had Parliament chosen to restrict immunity in that way it could have done so expressly, referring to the Student Assistance Act 1973 (Cth), s 354 and Child Care Act 1972 (Cth), s 12M). (In reply submissions, the applicant contends that the exclusion of registered providers from the operation of s 67G is not inconsistent with the language of “any person” in s 67G having regard to the context of s 67G and its legislative history. The applicant points out that the protections in Divisions 1 and 2 of Part 2 concern disclosure; and that they are silent concerning compulsory processes; in contrast to which s 67G limits the circumstances in which compulsory production of information may be required. The applicant maintains that s 67G applies to Agency and Commission officers, as defined under the NDIS Act, and also, for example, to consultants (ss 171, 181V) and inspectors or investigators appointed under the NDIS Act (who may include third party contractors – see s 73ZR).)

The respondent also submits that the applicant’s construction does not cohere with the structure of Pt 2 of Ch 4 of the NDIS Act, of which the respondent says s 67G forms an important “gap-filling” part. The respondent says that, on the applicant’s view, only the Agency, the Commission and its staff would be made non-compellable because only they would be exercising powers directly “under” the NDIS Act. The respondent argues that s 67G must be given some other work to do.

The respondent submits that the broader construction for which he contends is supported by the conclusion reached by Pearce J in Tasmania v TJG [2021] TASSC 47 (Tasmania v TJG), in an ex tempore judgment, that a registered NDIS provider was performing its functions “under” the NDIS Act when it had in its possession documents relating to the services it was giving participants as a registered provider. The applicant notes that his Honour’s reasons included that s 67G must be referring to persons other than the Agency and Commission and its ancillary offices, and that a registered provider’s function of providing supports is a function under the NDIS Act (see at [15]).

As to the purpose of s 67G, the respondent argues that this favours his construction. Insofar as the applicant suggests that s 67G protects only documents in the custody of government agents empowered directly by the statute, such as the Commission, the Agency and its officers, the respondent argues that the kind of enquiry made in the judicial review context (see Tang) as to whether an administrative action is undertaken pursuant to a direct source of statutory power is not a relevant enquiry in the context of a scheme, such as Part 2 of Chapter 4 of the NDIS Act, designed to protect the “privacy” of scheme participants (that being one of the purposes of the NDIS Act outlined in s 4). In this context, the respondent refers to the requirement as a condition of registration that “respect the privacy of people with a disability” (referring to r 6 of the National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth) (Code of Conduct Rules)). (In reply submissions, the applicant says that even if it were permissible here to use the rules to construe the NDIS Act, r 6 of the Code of Conduct Rules does not address the concerns raised by the applicant. The applicant notes that r 6 also requires that a person to whom the Code of Conduct Rules applies “promptly take steps to raise and act on concerns about matters that may impact the quality and safety of supports and services provided to people with disability” and says that there may be circumstances in which these obligations come into conflict (for example, where disclosure of private information may be required to raise a concern about a service provided to a person with disability). The applicant submits that facilitating law enforcement and professional regulation is entirely consistent with respecting an individual’s privacy.)

The respondent accepts that providers would not be prohibited by s 67G from making a voluntary disclosure of participants’ information but says that any voluntary disclosure would be constrained significantly by the obligation to “respect the privacy of people with a disability” as a condition of registration; and that this does not point against a characterisation of s 67G’s purpose as the protection of participants’ privacy. Nor, the respondent argues, is this characterisation of purpose undermined by the effect of the primary judge’s construction being to preclude participants from compelling the production of their own information. (The applicant, to the contrary, argues that the fact that a participant cannot compel production of records concerning services provided to them is an indicator of the incoherence created by the broad interpretation, the applicant noting that the secrecy protections in Div 1 and Div 2 of Part 2 expressly contain exceptions referable to the consent of the participant.)

The respondent accepts that s 67G does not fix upon information having any necessary quality of confidentiality but the respondent argues that the point of s 67G’s protection of privacy is to ensure the privacy of the relationship set up by the NDIS Act between providers and participants (by preventing any coercive interference with that relationship irrespective of the contents of any document in question). The respondent says that anything less would “predictably diminish public confidence” in the sanctity of that relationship (referring to Piras v Thaisawat (1993) 115 FLR 79 at 86). The respondent says that it is that confidence or expectation that underpins disabled persons’ choice to participate in the scheme and entrust information to providers. (In reply submissions, the applicant notes that the respondent has not pointed to any part of the NDIS Act or extrinsic materials to support the proposition that s 67G is intended to ensure the privacy or secrecy of the relationship between registered providers and participants. The applicant also notes that there are many relationships recognised in general and statute law as requiring significant protection: for example, the relationship between medical practitioners or lawyers and their clients; and says that it would be startling if the legislature had intended that that the logistical step of having funds managed through the Agency should have as its consequence that certain documents would be immune from law enforcement and professional regulators. The applicant also says that that would create a discrepancy between people with disability whose funds are managed in this way, and those whose funds are not.)

The respondent dismisses the concerns raised by the applicant as to the consequences of the primary judge’s construction (such as the ability of State regulatory bodies being impaired in the exercise of their statutory investigative powers) as being exaggerated. The respondent says that the NDIS Act already prescribes a mechanism for State regulatory authorities to receive information about NDIS participants (referring, among other things, to the requirement for notification to the Agency of “reportable incidents” – see s 73Z; and to the provisions under which the Commission may require the provision of documents – see ss 55A, 73F(2)(b), 181F(c) of the NDIS Act; NDIS Code of Conduct, r 3). The respondent also refers to the receipt by the Commission of participant information by the regular audits that must be conducted under r 13B(6) of the NDIS Provider Registration and Practice Standards Rules; and to the provisions which empower the CEO of the Agency and the Commission, respectively to disclose requested documents to any person if “satisfied on reasonable grounds that it is in the public interest to do so” and to heads of a State or Territory department (ss 66(1)(a), 66(1)(b)(v) and 67E).

The respondent argues that the Parliament has decided that the best way of balancing participants’ rights to privacy with competing regulatory goals is for the Agency and the Commission, rather than NDIS providers, to act as the “gatekeepers” to NDIS information; and says that, even if the proper construction of s 67G has the consequence the applicant foreshadows, this is simply a consequence of Commonwealth provisions giving immunities to persons entrusted with the execution of important public functions.

As to the applicant’s reference to the statement in the Amending Act Explanatory Memorandum as to the continued availability of universal complaints and redress mechanisms, the respondent says that those will continue to be available; and that, to the extent the respondent’s construction impinges on the unfettered conduct of those complaints systems, that is consistent with what the NDIS Act already achieves elsewhere (referring to s 58 and Pt 2 generally). (In reply submissions, the applicant accepts that the interpretation favoured by the respondent does not render unavailable the universal complaint and redress mechanisms referred to in the extrinsic materials, but he contends that this interpretation materially impairs the effectiveness of those mechanisms as regards a particular class of scheme participants (who, since their funding is managed by the Agency, might be expected to be among the more vulnerable participants).)

To the extent that s 67G may “materially impair” regulatory aims under State provisions, the respondent argues that this is simply the consequence of a Parliament according more weight to privacy in certain sensitive relationships than some forensic benefits that might have been expedient in litigation; and that, if this be “extraordinary”, it is because the NDIS Act creates and organises an “extraordinary” relationship between registered providers and participants in the scheme.

As noted above, in oral submissions, Senior Counsel for the respondent made clear that the primary way in which he puts the respondent’s case on the construction argument is that contended for in the draft notice of contention, namely that the documents held and produced by LBW in compliance with the s 138 orders are documents held or in the possession of the registered service provider (LBW) in the performance or exercise of its duties under the NDIS Act. Those statutory duties, as identified in the notice of contention, are (as indicated earlier) those said to be imposed by: s 45A (as to the making of payment claims); s 73F (which provides that registration is subject to conditions); s 73W (which requires registered NDIS providers to implement and maintain a complaints management and resolution system); s 73Y (which requires registered NDIS providers to implement and maintain an incident management system); and s 73Z (which provides for NDIS rules to prescribe arrangements relating to registered NDIS providers in relation to reportable incidents).

It is convenient therefore to deal first with that, more narrow contention, and to do so by reference to the documents contained in the confidential exhibit. For obvious reasons, they will be referred to without revealing the contents thereof. Having reviewed those documents, we do not accept that those documents can be said to be held or in the possession of LBW in the performance or exercise of “duties” under the NDIS Act.

Document 1 appears to be a completed Agency template form headed “Support coordination – implementation report” in relation to the respondent. It is dated 13 June 2024. The respondent says that LBW would not have completed the form if it were not a registered provider. That much may readily be accepted but it says nothing as to whether the document is held or in LBW’s possession because of the performance or exercise by it of a duty under the NDIS Act.

The respondent, in its Aide-Memoire on the Notice of Contention, identifies the following statutory “duties” as those relied upon by him to engage s 67G of the NDIS Act in respect of this document: first, s 45A of the NDIS Act (payment claims) and, second, s 73T of the NDIS Act (by reference to Schedule 1, cl 19(2) of the Registration/Practice Standards Rules).

Document 2 is a Support Plan dated 29 July 2024 on LBW letterhead.

The respondent again identifies s 45A of the NDIS Act (payment claims) and s 73T of the NDIS Act (by reference to the NDIS Provider Registration and Practice Standards Rules, Sch 1, cl 19(2)) as the statutory duties that engage s 67G of the NDIS Act in respect of this document.

The applicant says that the preparation of a support plan is not referable to any power, function or duty under the NDIS Act, the NDIS Rules, or LBW’s conditions of registration. Further, the applicant says that the existence of this type of document (which he says may well be prepared irrespective of whether a person is a NDIS participant whose funding is managed through the NDIA) illustrates the difficulty with the respondent’s focus on the question of factual causation.

Document 3 is a document on LBW letterhead with the heading “ABC Data Sheet” and dated 17 October 2024. Document 4 is a similar document but dated 21 October 2024. The documents appear to be based on a template which contains headings including “Behaviours Concern” (under which there are a succession of boxes to be selected by the person completing the form), Reasons and Report.

In relation to both of those forms, the respondent identifies s 45A of the NDIS Act (payment claims) and s 73Y of the NDIS Act (by reference to the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) (NDIS Incident Management Rules)), s 12(2), (4) as the statutory “duties engaging s 67G of the NDIS Act.

The applicant says that these two reports are not records required to be kept by operation of the conditions of LBW’s registration (s 73F(2)(g)), the incident management system set up under s 73Y, or the NDIS Incident Management Rules, noting (correctly, having regard to our review of the content of these reports) that these reports do not describe a reportable incident within the meaning of s 73Z(4) or the NDIS Rules. The applicant also says that a prudent service provider could be expected to prepare and maintain documents of this kind regardless of the obligations under the NDIS Act.

These documents contain a variety of case and progress notes.

Document 5 comprises Support Worker Progress Notes dated 25 September and 17 October 2024.

The respondent identifies s 45A of the NDIS Act (payment claims) (noting that these include time records) and s 73Y of the NDIS Act (by reference to the NDIS Incident Management Rules), s 12(2), (4) as engaging s 67G of the NDIS Act in respect of this document.

Document 6 is a case note dated 29 October 2024.

The respondent identifies s 45A of the NDIS Act (payment claims), again noting the inclusion of time records, s 73T of the NDIS Act (by reference to the NDIS Provider Registration and Practice Standards Rules, Sched 1, cl 10) and s 73W of the NDIS Act (by reference to the National Disability Insurance Scheme (Complaints Management and Resolution) Rules 2018 (Cth) (NDIS Complaints Management and Resolution Rules) s 10(2)-(3)) as here engaging s 67G of the NDIS Act.

Document 7 comprises case notes from dates ranging from 30 April 2025 to 22 May 2025.

The respondent again identifies s 45A of the NDIS Act (payment claims), again noting the inclusion of time records, s 73T of the NDIS Act (by reference to the NDIS Provider Registration and Practice Standards Rules, Sched 1, cl 10) and s 73W of the NDIS Act (by reference to the NDIS Complaints Management and Resolution Rules s 10(2)-(3)) as engaging s 67G of the NDIS Act.

Document 8 contains notes headed “Incident notes” with dates ranging from 24 January 2025 to 19 February 2025.

The respondent identifies s 45A of the NDIS Act (payment claims), again noting the inclusion of time records, s 73Y of the NDIS Act (by reference to the NDIS Incident Management Rules), s 12(2) and (4) as engaging s 67G of the NDIS Act.

The applicant says that each of the above documents comprises case or progress notes completed by employees of LBW. The applicant says that these are not records required to be kept by operation of the conditions of LBW’s registration (s 73F(2)(g)), the incident management system set up under s 73Y, or the Incident Management Rules, noting correctly that the notes do not describe a reportable incident within the meaning of s 73Z(4) or the Rules.

In particular, the applicant says that the use of the word “incident” does not necessarily indicate that a note or record refers to a reportable incident, nor can it be inferred that the note or record was created or retained due to the requirements of s 73Y; and the applicant says that a prudent service provider could be expected to prepare and maintain documents of this kind regardless of the obligations under the NDIS Act.

Addressing these documents as a whole, insofar as the respondent relies upon s 45A as imposing a duty because of which the above documents were in the possession of LBW, we consider that the suggestion that there is a “duty” under the NDIS Act to make a claim for payment is artificial. There is no “duty” to make a claim for payment. Service providers might well choose to provide support services to persons with disabilities on a voluntary basis (and one would expect many charities to do so, for example). Section 45A simply means that if a “payment claim” is to be made it must be accompanied by certain documents.

As to the reliance by the respondent on s 73T of the NDIS Act (for Documents 1 and 2), we do not consider that those documents were prepared or kept under a statutory duty to do so. Indeed, we note that the respondent accepts that he does not rely in his aide-memoire addressing the eight confidential documents or groups of documents on s 73Q (the record-keeping provision) for the reason that he has not found a rule specifically referring to s 73Q as being record-keeping rules (in other words, as we understand it, no specific rule relating to the record-keeping obligation in s 73Q of the NDIS Act) (see AT 45.48). The only rules apparently made under s 73Q relate to worker selection, and those are not relevant to this appeal.

As to the reliance by the respondent, in relation to the various case and progress notes, on provisions of the NDIS Act requiring registered providers to implement and maintain various systems in relation to complaints and incident management, none of Documents 5-8 record a reportable incident (within the meaning of s 73Z(4)) and some (the documents in Document 5, 7 and 8 for example) expressly record that there are no behaviours of concern or that this item is not applicable. The NDIS Act provides that NDIS rules may make provision for standards (s 73T, under Division 3 Quality assurance) and a Code of Conduct (s 73V, Division 4) and that failure to comply with a requirement under an applicable Code of Conduct is an offence. The NDIS Act does not directly impose an obligation (or duty) to comply with those rules.

As to s 73W and s 73Y, it is certainly the case that registered providers are obliged to implement and maintain a complaints management and resolution system and an incidental management system, respectively. However, the source of any duty on the part of a registered provider to keep records as part of the maintenance of such systems derived from the NDIS Rules, not from the NDIS Act itself.

We do not accept that any of the documents in question are precluded from compulsory production pursuant to s 67G of the NDIS Act on the proper construction of that section (on the assumption that one is focusing simply on the “duties” aspect of that provision).

Turning to the alternative (broader) way in which the respondent’s argument is put, namely the argument that s 67G covers all documents prepared or held by registered service providers (whether or not they contain personal information relating to the participant) in the performance or exercise of their duties, powers or functions (each considered separately) under the NDIS Act; and that there is no distinction between what might be described as “public” duties, powers or functions and those that might be performed or exercised by a private service provider (registered or otherwise), we make the following observations.

The principles applicable when construing statutory provision were not in dispute and are well known (see, for example, Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [14]).

One begins with a consideration of the text but the statutory text must be considered in its context, that context including legislative history and extrinsic materials (see, for example, the approach adopted in Coverdale v West Coast Council (2016) 259 CLR 164; [2016] HCA 15), and having regard to the purpose of the legislation or the mischief it was intended to address (see, for example, CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2, per Brennan CJ, Dawson, Toohey and Gummow JJ at 408).

Here, consideration of the text requires attention not only to the phrase “duties, powers and functions” but also to the concept of “under” the NDIS Act. There is no dispute that “because of” introduces a causal connection between the holding of the documents of information and the performance or exercise of duties, powers and functions under the NDIS Act (although the applicant has pointed to the difficulties of factual causation that are occasioned by a broad construction of s 67G).

We have concluded that, as the applicant submits, the phrase “duties, powers and functions” is used in s 67G of the NDIS Act in a composite sense rather than as referring to three distinct subject matters.

In Victims Compensation Fund Corporation v Brown (2003) 77 ALJR 1797; [2003] HCA 54, the meaning of “composite expression” was explained by the High Court at [34] as being “one which is a compound created out of at least two elements or integers which is different from each of them”. In XYZ v Commonwealth (2006) 227 CLR 532; [2006] HCA 25 at [19], Gleeson CJ cautioned that there “are many instances where it is misleading to construe a composite phrase simply by combining the dictionary meanings of its component parts” and, similarly, in Sea Shepherd Australia Ltd v Commissioner of Taxation (2013) 212 FCR 252; [2013] FCAFC 68 at [34], Gordon J said that “[t]he task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision”.

In Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36, the High Court accepted that, in determining the meaning of a composite phrase, one may have regard to both the ordinary and technical meanings of the individual words comprising a compound phrase for the purpose of determining the phrase’s unique meaning.

In National Disability Insurance Agency v WRMF (2020) 276 FCR 415; [2020] FCAFC 79, the Full Court of the Federal Court (Flick, Mortimer and Banks-Smith JJ), when construing the meaning of “reasonable and necessary supports” in the NDIS Act, said that “each limb of the phrase should be given work to do” (at [149]) but went on to observe (at [150]) that “[b]oth adjectives qualify the noun “support”, but they do so as a composite phrase. It is not fruitful to split them off and consider them separately, just as it is neither fruitful nor appropriate to attempt any exhaustive or authoritative judicial definition of them”.

The fact that the word “or” as opposed to “and” appears in the expression “duties, powers or functions” does not preclude this being construed as a composite phrase. In Cooper v Owners – Strata Plan No 58068 (2020) 103 NSWLR 160; [2020] NSWCA 250 at [26], Basten JA described a strata by-law prohibiting “harsh, unconscionable or oppressive” by-laws as “a ‘triune’, three words conveying a single criterion”.

In the NDIS Act, various provisions refer specifically to “duties” of particular persons (see, for example, ss 80, 180B and 180E) and others to “functions” of particular persons (see ss 118, 123, 159 and 181B). Further, in other sections of the NDIS Act, “functions or duties” are referred to separately to “exercise of powers” (see ss 66(1)(a), 67E(1)(a), 73ZE and 73ZF). This suggests that, when adopting the expression “duties, powers and functions”, the legislature was indeed adopting a composite expression in s 67G.

That said, the applicant submits that his argument as to the construction of s 67G does not depend on the phrase “duties, powers or functions” being read as a composite phrase. Rather, the applicant emphasises the incoherence of a construction which encompasses activities of private NDIS providers not exercising or performing public duties, powers or functions.

As to the meaning of “under”, we consider that this is informed in the NDIS Act by the fact that it is used in different expressions: “under” participant’s plans; under the Scheme (which itself is defined as the “arrangements” in Chapters 2 and 3); and under the NDIS Act. That textual indication suggests that focus here should be on whether the duty, power or function (whether considered in a composite or individual sense) is being performed or exercised pursuant to some statutory obligation or requirement or enabling provision derived from the NDIS Act itself, as opposed, say, to fulfilling a condition of registration or requirement contained in a participant’s plan or simply performing functions as a registered provider. Certainly, it is a requirement that access providers be registered in order to supply certain support servers (i.e., those for which funding managed by the Agency is received). But that does not make the process of registration, or the forms required to be prepared in an applying for registration, or the provision of supports by registered providers, the performance and exercise of a duty, power or function under the NDIS Act.

As noted earlier, the applicant refers in this context to the decision of the High Court in Tang (and see also NEAT Domestic Trading Pty Ltd v AWB Ltd (2003) 216 CLR 277; [2003] HCA 35 (NEAT)).

In Tang, Gummow, Callinan and Heydon JJ held at [89] that two criteria must be satisfied for a decision to be made “under” an enactment within the meaning of the ADJR Act: first, the decision must be expressly or impliedly required or authorised by the enactment; second, the decision must itself confer, alter or otherwise affect legal rights or obligations, and in that sense derive from the enactment. A similar approach was taken by Gleeson CJ, who identified the question as whether the decision “took its legal force or effect from statute”. At [18], the Chief Justice approved the following quote from Davies AJA in Scharrer v New South Wales (2001) 53 NSWLR 299; [2001] NSWCA 360:

The decision in Tang was recently considered by five members of the High Court in Fuller. At [11]-[16] of the joint judgment, the approach of Gummow, Callinan and Heydon JJ was discussed and elaborated upon as follows (citations omitted):

The issue in Fuller was whether a direction given by a corrective services officer to a prisoner under s 16(1)(db) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSO Act) was a decision “made … under an enactment” within the meaning of the Judicial Review Act 1991 (Qld), such that the recipient was entitled to a statement of reasons under s 33 of the latter Act. The parties accepted that s 16(1)(db) of the DPSO Act expressly or impliedly authorised the direction to be given. The question was whether the second Tang criterion was satisfied. The High Court held that it was, emphasising that the source of the obligation to comply with the direction was the DPSO Act. The fact the direction depended for its efficacy on the making of a supervision order by a court did not alter this conclusion (see at [20]-[24]).

This Court has recently emphasised the caution to be used in relying on the reasoning in Tang and other cases decided in different statutory contexts (see Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172 (Uber), which considered the use of “under” in s 32(1)(b) of the Payroll Tax Act 2007 (NSW), which refers to “a contract under which a person … has supplied to [the person] … services”, at [83]-[88]). To similar effect is the statement by the Queensland Court of Appeal in Stone v Guli [2020] QCA 288 at [62] per Davis J (McMurdo and Mullins JJA agreeing).

In King v Director of Housing (2013) 23 Tas R 353; [2013] TASFC 9 (which was cited with apparent approval by the High Court in Fuller at [15] fn 24), the question was whether decisions taken by the State Director of Housing, pursuant to the Homes Act 1935 (Tas) to give a tenant notice that her lease would not be extended or renewed and that she was required to vacate the rented premises were made under an enactment for the purposes of the Judicial Review Act 2000 (Tas). Porter J (Tennent and Wood JJ agreeing) held that they were not, reasoning as follows (emphasis as per original):

Wary of the need for caution when seeking to derive guidance from cases considering different legislative schemes, the consistent thread of these decisions is that the proper interpretation of the word “under” must give weight to legislative purpose and context, and that the question whether a power, duty or function is properly characterised as falling “under” the NDIS Act may require that attention is given to whether the relevant legislation itself provides the authority, force or justification for its exercise or occurrence. In this way, our construction of s 67G is consistent with the approach taken in the cases discussed above.

As to the purpose of the NDIS Act, and s 67G within that Act, the objects of the NDIS Act have been set out above. They can comfortably be achieved on the applicant’s construction of s 67G. We do not accept that the “relationship” created between the NDIS provider and participant is extraordinary; nor is it one that mandates the respondent’s construction of s 67G. Rather, some of the purposes of the NDIS Act may well be undermined if there is a blanket embargo on an NDIS provider being compulsorily required to produce documents to a court or authority, including under s 138 of the MCHIFP Act.

It would be a very surprising outcome, as the applicant submits, if law enforcement agencies or the like were unable to compel production of NDIS records (or could only obtain them through a cumbersome process of requesting them from the Commissioner – and hence be left to the Commissioner’s discretion in that regard); and would potentially operate to the contrary of the legislative objects of the NDIS Act. Nor does it make sense for there to be no restriction on the voluntary production by an NDIS provider of documents or information but a restriction on the NDIS provider being compelled to produce the relevant documents or information.

Insofar as the respondent places considerable weight on the “extraordinary” relationship of confidence between NDIS provider and participant (and the vulnerability of the participant), there is nothing extraordinary about relationships of confidence and trust in which intimate information may be expected to be disclosed (see the doctor/patient relationship for one) yet records of such communications (in this example, doctor/patient records) are regularly the subject of compulsory production. Nor is there textual support for treating the relationship between participant and service provider as rendering the latter immune to now compulsory production of the records in question here.

Finally, insofar as the decision in Tasmania v TJG reflects a broad construction of s 67G, we respectfully disagree for the reasons given above.

We therefore conclude that, on the proper construction of s 67G, there is no operational inconsistency with s 138 of the MCHIFP Act in its operation on the documents which were required to be produced in this case.

It was accepted by the applicant that if the appeal were successful no costs would be sought against the respondent. For the above reasons, we make the following orders: