Document ID: chunk:federal_register_of_legislation:F2018N00155:reg:5:p1
Version: federal_register_of_legislation:F2018N00155
Segment Type: reg
Provision Reference: reg 5 (pt 1/13)
Character Range: 4685–7670

5  Interpretation
    A reference in this instrument to a provider includes a reference to a person who is applying to become a registered NDIS provider under section 73C of the Act.

Part 2 – Procedural fairness and NDIS complaint handling

  6        Application of this instrument

(1)    This instrument applies to the Commission's complaints functions under section 181G of the Act in determining whether an NDIS provider or worker has contravened the Act or National Disability Insurance Scheme rules.

(2)    This instrument also applies to complaint handling by a registered NDIS provider under the Complaint Rules. Registered NDIS providers are required to have a complaints management and resolution system that both:

       (a)    supports people with disability to understand how to make a complaint to the provider and to the Commission; and

       (b)   requires that people are afforded procedural fairness when a complaint is dealt with by the provider.

    (3)    Effective complaint management and resolution by registered NDIS providers and the Commission is important to a range of people and organisations, including complainants and NDIS providers and workers against whom complaints are made. They all have a direct interest in the complaint process being conducted properly and fairly.
    (4)    Procedural fairness compliance by the Commission and NDIS providers is integral to building confidence in NDIS complaint processes.

  7        An outline of procedural fairness
    (1)    As part of the handling of a complaint under the Complaint Rules, procedural fairness must be afforded to a person if their rights or interests may be adversely or detrimentally affected in a direct and specific way. In those circumstances -

       (a)    the person must be given notice of each prejudicial matter that may be considered against them;

       (b)    the person must be given a reasonable opportunity to be heard on those matters before adverse action is taken, and to put forward information and submissions in support of an outcome that is favourable to their interests;

       (c)    the decision to take adverse action should be soundly based on the facts and issues that were raised during that process, and this should be apparent in the record of the decision, and

       (d)    the decision maker should be unbiased and maintain an unbiased appearance.
    (2)    The precise requirements of procedural fairness can vary from one situation to another. The required steps can vary according to:

       (a)    the nature of the matter being dealt with;

       (b)   the options for resolving it;

       (c)    the time-frame for resolution;

       (d)   whether facts in issue are in dispute;

       (e)    the gravity of possible findings that may be reached; and

       (f)     the sanctions that could be imposed based on those findings.

    (3)    Sometimes a quick, informal and consultative procedure will be sufficient – but on other