Document ID: chunk:federal_register_of_legislation:F2018N00155:reg:5:p11
Version: federal_register_of_legislation:F2018N00155
Segment Type: reg
Provision Reference: reg 5 (pt 11/13)
Character Range: 30938–34000

later stage, provided this is done by a good faith process in which the decision maker approaches the issue with an open mind and gives genuine consideration to any submission made by the person to whom procedural fairness is owed.
    (5)           The dual purpose of procedural fairness: Procedural fairness is a legal obligation that applies to decisions made under statute that adversely affect the interests of others in a direct and specific manner. A failure to comply with this legal obligation may lead to an adverse decision being set aside by a court or questioned by a review tribunal or body.
    (6)           As importantly, procedural fairness aims to strengthen the fairness and integrity of administrative processes, regardless of whether legal proceedings for a breach are a possibility. Decision-makers should, accordingly, ensure procedural fairness in the pursuit of good administration as an overriding objective.

  14    Dealing with confidential information
    (1)    Information to be considered in a complaint management and resolution process may have been received on a confidential basis. For example, a complainant, informant, witness or whistleblower may request that their identity remain confidential, or private personal information about a third party may be revealed during an investigation.
    (2)           The Complaint Rules (paragraph 8(5)(b)) require that a registered NDIS provider's complaints management and resolution system ensures that information provided in a complaint is kept confidential, and only disclosed if the disclosure is:

       (a)    required by law; or

       (b)    is otherwise appropriate in the circumstances.

    (3)           Procedural fairness principles recognise that protection of identity and confidentiality can be important elements of effective complaint handling and dispute resolution. This must nevertheless be balanced against the obligation to provide procedural fairness to a person whose interests may be adversely affected by an administrative action, particularly if a sanction may be imposed on a person as part of the resolution of a complaint or allegation.
    (4)           This means that the obligation to provide procedural fairness may override – in whole or in part - the obligation to maintain confidentiality, depending on the circumstances.
    (5)           Confidentiality can more easily be safeguarded if a complaint is classified as one about the quality or level of supports provided to a person with disability, rather than a complaint that alleges inappropriate conduct by a worker. Accordingly, a registered NDIS provider should consider at the outset whether any worker who is identified in a complaint is identified only in a manner incidental to describing a complaint issue about the quality or level of supports.
    (6)           Where a complaint involves allegations about the conduct of a worker, it may be practicable to provide the worker with the allegation and the details given in support of it, without disclosing the identity of