Federal Court of Australia

Commissioner of the NDIS Quality and Safeguards Commission v Aurora Community Care Pty Ltd (in liquidation) (No 2) [2025] FCA 1237

ORDERS

THE COURT ORDERS THAT:

1. Pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) and/or r 26.01 of the Federal Court Rules 2011 (Cth), summary judgment be entered in favour of the Commissioner of the NDIS Quality and Safeguards Commission (Commissioner) against the Respondent (Aurora).

2. Pursuant to s 82(3) of the Regulatory Powers (Standard Provisions) Act 2014 (Cth), read with s 73K of the National Disability Insurance Scheme Act 2013 (Cth) (Act), Aurora pay to the Commonwealth a pecuniary penalty in the amount of $2,200,000 for the contraventions of ss 73J and 73V of the Act.

3. Aurora pay the Commissioner’s costs of and incidental to the proceeding.

THE COURT DECLARES THAT:

Contraventions concerning supports provided to Mr Gupta

1. By failing to provide to Mr Gupta at all times during the period 16 February 2022 to 15 March 2023 active two on one (2:1) supports where two support workers were on duty at Mr Gupta’s supported independent living residence (Dyandra Drive) at all times where both support workers were awake at all times (including during normal sleeping hours) and at least one support worker was watching Mr Gupta at all times, Aurora contravened ss 73J and 73V of the Act because Aurora failed to comply with s 6(c) of the National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth) (Code of Conduct) in that it did not provide supports and services in a safe and competent manner, with care and skill because Mr Gupta required (and Aurora knew that Mr Gupta required) active 2:1 supports 24 hours a day, seven days a week.

2. By failing to provide active 2:1 supports to Mr Gupta from 16 March 2023 to 17 March 2023 including on 16 March 2023, leaving Mr Gupta in the care of only one support worker who did not watch Mr Gupta at all times enabling him to leave Dyandra Drive alone, without the support worker’s knowledge and then not watching Mr Gupta again between 1 am and 2 am on 17 March 2023 (including because one support worker was asleep) which enabled Mr Gupta, without either support workers’ knowledge, to leave Dyandra Drive alone, walk onto a highway and be hit by a motor vehicle causing his death, Aurora contravened ss 73J and 73V of the Act because Aurora failed to comply with s 6(c) of the Code of Conduct in that it did not provide supports and services in a safe and competent manner, with care and skill because Mr Gupta required (and Aurora knew that Mr Gupta required) active 2:1 supports 24 hours a day, seven days a week.

Contraventions concerning failure to report use of medication

3. By failing to report to the Commissioner on the use of medication that comprised a regulated restrictive practice the subject of short term approval for use on Mr Gupta from the state of Queensland every two weeks from 16 February 2022 to 16 August 2022 and again from 12 December 2022 to 17 March 2023, Aurora contravened s 73J of the Act because Aurora failed to comply with r 14(1)(b) of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (Restrictive Practices and Behaviour Support Rules) which required Aurora to report to the Commissioner on the use of a regulated restrictive practice the subject of short term approval from a State every two weeks while the approval was in force.

4. By failing to notify the Commissioner of each of the matters set out in r 21(3) of the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) (Reportable Incidents Rules) within five business days each time it used on Mr Gupta medication comprising a restrictive practice in the period 15 February 2022 to 27 June 2022 during which period the use of the restrictive practice was not covered by a behaviour support plan, Aurora contravened s 73J of the Act because Aurora failed to comply with r 21 of the Reportable Incidents Rules which required Aurora to notify the Commissioner, in writing, within five business days of becoming aware of a reportable incident occurring of the specific information required by r 21(3) of the Reportable Incidents Rules.

5. By failing to notify the Commissioner of each of the matters set out in r 21(3) of the Reportable Incidents Rules within five business days each time it used on Mr Gupta medication comprising a restrictive practice in the period 17 August 2022 to 11 December 2022 during which period the use of the restrictive practice was in accordance with a behaviour support plan but Aurora did not have authorisation from the state of Queensland, Aurora contravened s 73J of the Act because Aurora failed to comply with r 21 of the Reportable Incidents Rules which required Aurora to notify the Commissioner, in writing, within five business days of becoming aware of a reportable incident occurring of the specific information required by r 21(3) of the Reportable Incidents Rules.

Contraventions connected to use of and failure to report use of regulated restrictive practice (environmental restraint – television)

6. On each occasion that Aurora restricted Mr Gupta’s access to television during the period of 5 July 2022 to 7 March 2023 (as set out in Annexure C), Aurora contravened:

(i) Sections 73J and 73V of the Act because Aurora failed to comply with:

A. section 6(a) of the Code of Conduct in that it did not act with respect for Mr Gupta’s individual rights to freedom of expression, self-determination and decision making in accordance with applicable laws and conventions, compliance with which required Aurora to allow Mr Gupta to watch television if and when he chose to do so; and

B. section 6(c) of the Code of Conduct in that it did not provide supports and services to Mr Gupta in a safe and competent manner, compliance with which required Aurora to allow Mr Gupta to watch television if and when he chose to do so because Aurora knew that not being not being able to watch television was a long-term trigger for Mr Gupta, which increased the possibility that he would be aggressive or cause property damage; and

(ii) Section 73J of the Act because Aurora failed to comply with s 6 of sch 1 to the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Practice Standard) because it did not ensure that Mr Gupta was supported to make informed choices, exercise control and maximise his independence in relation to the supports provided, compliance with which required Aurora to allow Mr Gupta to watch television if and when he chose to do so.

7. By failing to take all reasonable steps to facilitate the development of an interim behaviour support plan for Mr Gupta by a specialist behaviour support provider that covered the use of the regulated restrictive practice of restricting Mr Gupta’s access to television within one month of 5 July 2022 being the first use of that regulated restrictive practice which was or was likely to continue and for which an authorisation from the state of Queensland was not required, Aurora contravened s 73J of the Act because Aurora failed to comply with r 13(2)(a) of the Restrictive Practices and Behaviour Support Rules which required it to take those steps.

8. By failing to take all reasonable steps to facilitate the development of a comprehensive behaviour support plan for Mr Gupta by a specialist behaviour support provider that covered the use of the regulated restrictive practice of restricting Mr Gupta’s access to television within six month of 5 July 2022 being the first use of that regulated restrictive practice which was or was likely to continue and for which an authorisation from the state of Queensland was not required, Aurora contravened s 73J of the Act because Aurora failed to comply with r 13(2)(b) of the Restrictive Practices and Behaviour Support Rules which required it to take those steps.

9. By failing to notify the Commissioner of each of the matters set out in r 21(3) of the Reportable Incidents Rules within five business days each time it restricted Mr Gupta’s access to television (being a restrictive practice) in the period 5 July 2022 to 7 March 2023 during which period the use the restrictive practice was not approved by the state of Queensland and was not covered by a behaviour support plan Aurora contravened s 73J of the Act because Aurora failed to comply with r 21 of the Reportable Incidents Rules which required Aurora to notify the Commissioner, in writing, within five business days of becoming aware of a reportable incident occurring of the specific information required by r 21(3) of the Reportable Incidents Rules.

Contraventions connected to use and failure to report use of regulated restrictive practice (environmental restraint – Pepsi)

10. On each occasion that Aurora restricted Mr Gupta’s access to Pepsi during the period of 3 May 2022 to 7 March 2023 (as set out in Annexure D), Aurora contravened:

(i) Sections 73J and 73V of the Act because Aurora failed to comply with:

(A) section 6(a) of the Code of Conduct in that it did not act with respect for Mr Gupta’s individual rights to freedom of expression, self-determination and decision making in accordance with applicable laws and conventions, compliance with which required Aurora to allow Mr Gupta to have Pepsi if and when he chose to do so; and

(B) section 6(c) of the Code of Conduct in that it did not provide supports and services to Mr Gupta in a safe and competent manner, compliance with which required Aurora to allow Mr Gupta to watch television if and when he chose to do so because Aurora knew that not being not being able to have Pepsi was a long-term trigger for Mr Gupta, which increased the possibility that he would be aggressive or cause property damage; and

(ii) Section 73J of the Act because Aurora failed to comply with s 6 of sch 1 to the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) (Practice Standard) because it did not ensure that Mr Gupta was supported to make informed choices, exercise control and maximise his independence in relation to the supports provided, compliance with which required Aurora to allow Mr Gupta to have Pepsi if and when he chose to do so.

11. By failing to take all reasonable steps to facilitate the development of an interim behaviour support plan for Mr Gupta by a specialist behaviour support provider that covered the use of the regulated restrictive practice of restricting Mr Gupta’s access to Pepsi within one month of 3 May 2022 being the first use of that regulated restrictive practice which was or was likely to continue and for which an authorisation from the state of Queensland was not required, Aurora contravened s 73J of the Act because Aurora failed to comply with r 13(2)(a) of the Restrictive Practices and Behaviour Support Rules which required it to take those steps.

12. By failing to take all reasonable steps to facilitate the development of a comprehensive behaviour support plan for Mr Gupta by a specialist behaviour support provider that covered the use of the regulated restrictive practice of restricting Mr Gupta’s access to television within six months of 3 May 2022 being the first use of that regulated restrictive practice which was or was likely to continue and for which an authorisation from the state of Queensland was not required, Aurora contravened s 73J of the Act because Aurora failed to comply with r 13(2)(b) of the Restrictive Practices and Behaviour Support Rules which required it to take those steps.

13. By failing to notify the Commissioner of each of the matters set out in r 21(3) of the Reportable Incidents Rules within five business days each time restricted Mr Gupta’s access to Pepsi (being a restrictive practice) in the period 3 May 2022 to 7 March 2023 during which period the use the restrictive practice was not approved by the state of Queensland and was not covered by a behaviour support plan Aurora contravened s 73J of the Act because Aurora failed to comply with r 21 of the Reportable Incidents Rules which required Aurora to notify the Commissioner, in writing, within five business days of becoming aware of a reportable incident occurring of the specific information required by r 21(3) of the Reportable Incidents Rules.

14. By restricting Mr Gupta’s access to Pepsi during the period of 3 May 2022 to 7 March 2023 (being a regulated restrictive practice used otherwise than in accordance with approval from the State of Queensland and otherwise than in accordance with a behaviour support plan) and not reporting that use to the Commissioner, Aurora contravened s 73J of the Act because Aurora failed to comply with r 21 of the Reportable Incidents Rules in that it failed to notify the Commissioner, in writing, within five business days of becoming aware of a reportable incident occurring and it failed to provide the specific information set out in r 21(3) of the Reportable Incidents Rules.

Contraventions concerning failure to report use of regulated restrictive practices generally

15. By failing to report to the Commissioner on the use of regulated restrictive practices not the subject of short term approval from the state of Queensland (being the use of medication in the period 17 August 2022 to 11 December 2022 and, from 3 May 2022 to 7 March 2023 restricting Mr Gupta’s access to Pepsi and television) Aurora contravened s 73J of the Act because Aurora failed to comply with r 14(1)(a) of the Restrictive Practice and Behaviour Support Rules which required Aurora to report to the Commissioner on the use of regulated restrictive practices monthly when no short term approval from a state is in force.

THE COURT NOTES THAT:

16 The Commissioner has undertaken not to enforce any penalty awarded, or any costs order made in its favour, without first obtaining the leave of the Court to do so.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

ABRAHAM J:

1 Aurora was a registered National Disability Insurance Scheme (NDIS) Provider that provided support funded under a NDIS Plan to Mr Ankur Gupta between the period of 16 February 2022 to 17 March 2023 (the Relevant Period). The company is now in liquidation. On 28 June 2024, I granted leave pursuant to s 500(2) of the Corporations Act 2001 (Cth) to proceed against Aurora Community Care Pty Ltd (Aurora) in liquidation. I did so in the context where the applicant undertook not to enforce any penalty awarded, or any costs order made in its favour, without first obtaining the leave of the Court to do so: Commissioner of the NDIS Quality and Safeguards Commission v Aurora Community Care Pty Ltd (in liquidation) [2024] FCA 679. There is evidence that Aurora’s liquidator does not intend to take any steps in the proceedings.

2 Mr Gupta was born in 1984. Mr Gupta had various disabilities including an intellectual disability. From 2010, until his death in 2023, Mr Gupta received in-home care from various NDIS providers at various houses, including at the supported independent living residence operated by Aurora at a housing commission home at Dyandra Drive.

3 Mr Gupta was required to receive two on one (2:1) care, 24 hours a day, seven days a week from Aurora at the residence operated by them. Aurora and its staff knew that Mr Gupta would leave the residence from time to time (or attempt to do so) and that he was not subject to any environmental restraint that permitted them to lock doors or gates. Accordingly, his support workers needed to always watch Mr Gupta to ensure he did not leave the residence alone, as a risk minimisation action. On 17 March 2023 at about 1.45 am, Mr Gupta died having been struck by a vehicle after leaving the residence alone, without the knowledge of his support workers. One of his support workers had fallen asleep while sitting with him, while the other had heard Mr Gupta open the back door but did not investigate. He was 38 years old at the time.

4 The Commissioner also alleged that while in Aurora’s care, from 15 February 2022 to 16 August 2022 and again from 12 December 2022 to 11 April 2023, Aurora had short term approval from the State of Queensland to use two restrictive practices to manage Mr Gupta’s behaviour: an environmental restraint comprising of restricting Mr Gupta’s access to sharp objects and lighters and a chemical restraint comprising of administering medications. At all times from 16 February 2022 to the date of his death, Aurora was required to, but did not, report the use of the chemical restraint on Mr Gupta to the Commissioner.

5 Further, it is alleged that Aurora and its staff knew that restricting Mr Gupta’s access to Pepsi and television were triggers which increased the likelihood that he would engage in harmful behaviours including physical harm to himself, property damage/destruction, physical aggression, verbal aggression and harmful sexual behaviours to others. Despite that, Aurora restricted Mr Gupta’s access to Pepsi (on at least seven occasions) and television (on at least 19 occasions) without it being covered by a behaviour support plan and without reporting it to the Commissioner.

6 The Commissioner alleged that in providing supports to Mr Gupta in the Relevant Period, Aurora contravened s 73J of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act) by failing to comply with conditions of its registration being:

(1) s 6 of sch 1 of the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth) (NDIS Practice Standards) (independence and informed choice for NDIS participants).

(2) s 6(a) of the National Disability Insurance Scheme (Conduct of Conduct) Rules 2018 (Cth) (NDIS Code of Conduct) (act with respect for individual rights to freedom of expression, self-determination and decision making in accordance with applicable laws and conventions).

(3) s 6(c) of the NDIS Code of Conduct (provide supports and services in a safe and competent manner, with care and skill).

(4) s 13 of the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth) (NDIS Restrictive Practices and Behaviour Support Rules) (requirements for behaviour support plan when regulated restrictive practices are used).

(5) s 14 of the NDIS Restrictive Practices and Behaviour Support Rules (reporting the use of regulated restrictive practices).

(6) s 21 of the National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth) (NDIS Reportable Incidents Rules) (reporting the use of restrictive practices).

7 The Commissioner also alleged a breach of s 73V of NDIS Act because it failed to comply with the NDIS Code of Conduct.

8 This is an application for summary judgment, imposition of civil penalty, and the making of various declarations.

9 For the reasons below, I am satisfied summary judgment ought to be entered. I order that Aurora is to pay to the Commonwealth a pecuniary penalty in the amount of $2,200,000. I make the declarations in the terms sought.

Evidence relied on

10 In support of the application, the applicant read the following affidavits:

(1) Gareth Kerr, sworn 26 April 2024;

(2) Trudy Tweedy, affirmed 20 December 2023; and

(3) Darren Ferguson, affirmed 19 December 2024.

Summary judgment

11 The relevant principles in relation to an application for summary judgment are well established. The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is prosecuting the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully defending the proceeding or that part of the proceeding: Federal Court of Australia Act 1976 (Cth) s 31A; see Federal Court Rules 2011 (Cth) r 26.01(e); and see e.g. Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 (Spencer) at [49]-[60].

12 The Commissioner bears the onus of persuading the Court that their opponent has no reasonable prospect of success: Paathmanathan v Healthscope Operations Pty Ltd [2020] FCA 65 at [8].

13 Given the liquidator’s position, in this case, that assessment will necessarily require: (i) identification of the cause of action pleaded; (ii) identification of the pleaded facts said to give rise to that cause of action and (iii) a review of the evidence (if any) in support of the claim for judgment: see e.g. Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60; (2008) 167 FCR 372 (Jefferson Ford) at [126]. That is, this application falls to be determined by reference to the material filed, and evidence tendered by the Commissioner.

14 A claim need not be hopeless or bound to fail for it to have no reasonable prospects of success: Spencer at [17]-[26]. The assessment requires the making of a value judgment in absence of a full and complete factual matrix and argument, with the result that the Court is vested with a discretion: Kimber v The Owners Strata Plan No. 48216 [2017] FCAFC 226; (2017) 258 FCR 575 at [62]; Houston v State of New South Wales (No 2) [2021] FCA 637 at [5]. It requires a “practical judgment” of the case at hand: Australian Securities and Investment Commission v Cassimatis [2013] FCA 641; (2013) 220 FCR 556 (Cassimatis) at [46]. In making the assessment, the Court should draw all reasonable inferences (but only reasonable inferences) in favour of the non-moving party: Jefferson Ford at [132].

15 The Court retains a discretion whether to determine proceedings summarily or to refer them to trial, albeit this discretion must be exercised judicially: Cassimatis at [50]. That said, the power to enter summary judgment is not to be exercised lightly: Spencer at [60].

Statutory scheme

16 The applicant’s submissions commenced with a description of the scheme, which included a focus on the matters impacting on the contraventions alleged in this case. I accept the description. The following is taken from the Commissioner’s submissions:

[21]    Justice Abraham described the statutory scheme in detail in Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629 (Afford) as did Justice Raper in Commissioner of the NDIS Quality and Safeguards Commission v LiveBetter Services Ltd [2024] FCA 374 (LiveBetter).

[22]    The following matters articulated in Afford at [7] to [19] are relevant to the present proceedings:

(a)    The objects of the NDIS Act include promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community and protecting and preventing people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS: s 3 of the NDIS Act.

(b)    The NDIS Commission is established under the NDIS Act. The Commissioner’s core functions including upholding the rights of, and promoting the health, safety and wellbeing of people with disability receiving supports or services, including those received under the NDIS. The Commissioner’s core functions also include securing compliance with the NDIS Act through effective compliance and enforcement arrangements: ss181A, 181D and 181E of the NDIS Act.

(c)    Under the NDIS Act, the Minister has the power to make rules called the National Disability Insurance Scheme Rules (NDIS Rules) and the Commissioner has the power to make guidelines: ss 209 and 181D(2) respectively.

(d)    The registration of a person as a registered NDIS provider is subject to certain conditions specified in s 73F(2) of the NDIS Act, together with any conditions imposed by the Commissioner under s 73G of the NDIS Act or determined by the NDIS Rules under s 73H of the NDIS Act: s73F (1) of the NDIS Act.

[23]    An additional object of the NDIS Act is to give effect to Australia’s obligations under the United Nations Convention of the Right of People with Disabilities (UNCRPD): s 3(1)(a) of the NDIS Act.

[24]    The UNCRPD is the first binding international human rights treaty to recognise the rights of all people with disability and has, as a fundamental principle, respect for the inherent dignity, individual autonomy including the freedom to make one’s own choices, and independence of all persons. Australia signed the UNCRPD in 2008. With that in mind, the general principles under the NDIS Act include that people with disability:

(a)    and their families and carers should have certainty that people with disability will receive the care and support they need over their lifetime: s 4(3);

(b)    have the same right as other members of Australian society to respect for their worth and dignity and to live free from abuse, neglect and exploitation: s 4(6); and

(c)    have the same right as other members of Australian society to be able to determine their own best interests, including the right to exercise choice and control, and to engage as equal partners in decisions that will affect their lives: s 4(8).

[25]    In addition to the core functions of the Commissioner described in Afford (above), the Commissioner also has the following functions under the NDIS Act which are relevant to this proceeding:

(a)    ‘reportable incident’ functions under s 181F which include to:

(i)    monitor registered NDIS provider compliance with their conditions of registration;

(ii)    provide education, guidance and best practice information to NDIS providers in relation to compliance matters;

(iii)    support registered NDIS providers to develop and implement effective incident management systems and to build provider capability to prevent and manage incidents; and

(iv)    collect, correlate, analyse and disseminate information relating to incidents, including reportable incidents, to identify trends or systemic issues.

(b)    a ‘behaviour support’ function under s 181H being to provide leadership in relation to behaviour support, and in the reduction and elimination of the use of restrictive practices (described in detail below), by NDIS providers, including by:

(i)    providing education, training and advice on the use of behaviour supports and the reduction and elimination of the use of restrictive practices;

(ii)    overseeing the use of behaviour support and restrictive practices, including by:

(A) monitoring registered NDIS provider compliance with the conditions of registration relating to behaviour support plans; and

(B) collecting, analysing and disseminating data and other information relating to the use of behaviour supports and restrictive practices by NDIS providers; and

(iii)    undertaking and publishing research to inform the development and evaluation of the use of behaviour supports and to develop strategies to encourage the reduction and elimination of restrictive practices by NDIS providers.

[26]    A delegate of the Minister has made the following NDIS Rules, which commenced on 1 July 2018, which are relevant to these proceedings:

[27]    NDIS Code of Conduct: s 73V(1) of the NDIS Act provides that the NDIS Rules may make provision for, or in relation to, a code of conduct that applies to either or both NDIS providers and persons employed or otherwise engaged by NDIS providers. NDIS Rules made for the purposes of s 73V(1) are described as the NDIS Code of Conduct: s 73V(2).

[28]    The NDIS Code of Conduct sets minimum expectations and shapes the behaviour and culture of NDIS providers and persons employed or otherwise engaged by NDIS providers in order to ensure the safety and quality of supports provided to people with a disability.

[29]    NDIS Practice Standards: s 73T(1) of the NDIS Act provides that the NDIS Rules may make provision for or in relation to standards concerning the quality of supports or services to be provided by registered NDIS providers. NDIS Rules made for the purposes of s 73T(1) are known as the NDIS Practice Standards: s 73T(2).

[30]    The NDIS Practice Standards set out standards that apply to all registered NDIS providers concerning the quality of service provided by registered NDIS providers.

[31]    NDIS Reportable Incidents Rules: s 73Z(1) of the NDIS Act provides that the NDIS Rules must prescribe arrangements relating to the notification and management of reportable incidents that occur, or are alleged to have occurred, in connection with the provision of supports or services by registered NDIS Providers. Section 15 of the NDIS Reportable Incidents Rules provides that Part 3 of the NDIS Reportable Incidents Rules is made for the purposes of s 73Z of the NDIS Act.

[32]    The NDIS Reportable Incidents Rules recognise that oversight, combined with effective provider practice, can reduce preventable deaths, serious injuries and other serious incidents through early intervention and capacity-building. The NDIS Reportable Incidents Rules enable the Commissioner to work with providers to build their capability to respond appropriately to incidents and improve their systems to prevent incidents from occurring and minimise their impact on people with disability when they do occur by:

(a)    requiring providers to notify, investigate and respond to reportable incidents; and

(b)    enabling the Commissioner to receive notifications of reportable incidents and oversee providers’ responses to these incidents.

[33]    If the Commissioner is notified about a reportable incident the Commissioner may take certain action, including requiring the provider to undertake specified remedial action, carry out an internal investigation about the incident or engage an independent expert to investigate and report on the incident.

[34]    NDIS Restrictive Practices and Behaviour Support Rules: s 73H of the NDIS Act provides that the NDIS Rules may determine that each registration is taken to include one or more specified conditions. Rule 7 of the of the NDIS Restrictive Practices and Behaviour Support Rules provides that it is made for the purpose of section 73H of the NDIS Act and that it sets out conditions relating to the use of regulated restrictive practices that apply to all registered NDIS providers.

[35]    Under the NDIS Restrictive Practices and Behaviour Support Rules, there are five restrictive practices that are subject to regulation and oversight by the Commissioner. These are chemical restraint, mechanical restraint, physical restraint, environmental restraint, and seclusion. The relevant restraints in these proceedings are chemical and environmental restraints, which are discussed in more detail later in these submissions.

[36]    The Commissioner developed the Regulated Restrictive Practices Guide dated October 2020 to assist registered NDIS providers and NDIS behaviour practitioners to meet their obligations under the NDIS Act and NDIS Rules.

[37]    The Regulated Restrictive Practices Guide recognises that the use of restrictive practices for people with disability can present serious human rights breaches. The decision to use a restrictive practice needs careful clinical and ethical consideration, taking into account a person’s human rights and the right to self-determination. It provides that restrictive practices should be used within a positive behaviour support framework that includes proactive, person-centred and evidence-informed interventions. There are some circumstances when restrictive practices are necessary as a last resort to protect a person with disability and or others from harm.

17 The requirements relevant to this matter are detailed in the Commissioner’s submissions as follows (emphasis included):

[38]    The specific requirements under the NDIS Act and the various NDIS Rules relevant to this matter are set out below.

[39]    At all times from 1 July 2018:

(a)    Section 6(a) of the NDIS Code of Conduct required all NDIS providers (each being a Code-covered person pursuant to s 5 of the NDIS Code of Conduct) to act with respect for individual rights to freedom of expression, self-determination and decision making in accordance with applicable laws and conventions.

(b)    Section 6(c) the NDIS Code of Conduct required NDIS providers to provide supports and services in a safe and competent manner, with care and skill.

(c)    Section 6 of Schedule 1 of the NDIS Practice Standards required NDIS registered providers to ensure that participants are supported to make informed choices, exercise control and maximise his independence in relation to the supports provided.

[40]    In relation to restrictive practices, at all material times from 1 July 2018:

(a)    Any practice or intervention that had the effect of restricting the rights or freedom of movement of a person with disability was a ‘restrictive practice’ under the NDIS Act: s 9 of the NDIS Act.

(b)    Section 6 of the NDIS Restrictive Practices and Behaviour Support Rules provided that each of the following was a ‘regulated restrictive practice’:

(i)    The use of medication or chemical substances for the primary purpose of influencing a person’s behaviour is a ‘chemical restraint’.

(ii)    Restricting a person’s free access to all parts of their environment, including items or activities is an ‘environmental restraint’.

[41]    The Regulated Restrictive Practices Guide provides assistance in understanding environmental restraints. It states at p14 that environmental restraints:

(a)    include ‘…practices that are beyond ordinary community standards for the purposes of addressing a behaviour of concern that can cause harm to persons with disability and/or others. An example of ordinary community practice includes locking the front door at night for safety (the person is still able to leave their home if they choose to)’;

(b)    ‘…can be difficult to identify, as this category of restriction is broad and vast. Knowing when a practice is an environmental restraint and considering the potential impact to the person is necessary to protecting the dignity and human rights of people with disability, and reducing and eliminating its use’.

[42]    The Regulated Restrictive Practices Guide provides examples of environmental restraints at p 14 including, relevantly:

(a)    Locking a door, cupboard or fridge to prevent a person’s access. For example, ‘Mark is known to run out of the house and onto the road. The front and back door are locked to prevent Mark from running onto the road and oncoming traffic’.

(b)    Preventing or placing restrictions on a person engaging in an activity such as cooking or watching TV.

(c)    Preventing access to a person’s possessions such as their mobile phone, iPad or cigarettes.

(d)    Preventing access to a certain area in their environment, such as the backyard or kitchen.

(e)    Restrictive access to hazardous items, sharps and chemicals (for example toiletries, cutlery, and other sharps to reduce the risk of self-harm behaviours).

[43]    Accordingly, at all times from 1 July 2018, restricting a disabled person’s access to television or Pepsi was a regulated restrictive practice under s 6 of the NDIS Restrictive Practices and Behaviour Support Rules. However, it was not required to be authorised in Queensland: ss144, 165A, 170 and 178 of the Disability Service Act 2006 (Qld) (Disability Services Act).

[44]    Section 13 of the NDIS Restrictive Practices and Behaviour Support Rules provides that, if a NDIS registered provider used a regulated restrictive practice that was (i) not in accordance with a behaviour support plan; (ii) not required to be authorised in the State in which it occurs and (iii) would or was likely to continue, the NDIS registered provider was required to take all reasonable steps to facilitate the development of:

(a)    an interim behaviour support plan covering the use of the regulated restrictive practice within one month after the first use of the regulated restrictive practice: s13(2)(a) of the NDIS Restrictive Practices and Behaviour Support Rules; and

(b)    a comprehensive behaviour support plan covering the use of the regulated restrictive practice within six months after the first use of the regulated restrictive practice: s 13(2)(b) of the NDIS Restrictive Practices and Behaviour Support Rules.

[45]    As to the requirements to report the use of restrictive practices:

(a)    NDIS registered providers were required to report to the Commissioner on the use of a regulated restrictive practice every two weeks during the period in which a short-term approval from the State was in force: s 14(1)(b) of the NDIS Restrictive Practices and Behaviour Support Rules.

(b)    NDIS registered providers were required to give monthly reports to the Commissioner on the use of regulated restrictive practices when they did not have short term approval from the State: s 14(1)(a) of the NDIS Restrictive Practices and Behaviour Support Rules.

(c)    NDIS registered providers were required to notify the Commissioner, in writing, within five business days of becoming aware of a reportable incident, including by providing the specific information set out in s 21(3) of the NDIS Reportable Incidents Rules: s 21 of the NDIS Reportable Incidents Rules.

[46]    The use of a restrictive practice in relation to a person with a disability was a ‘reportable’ incident when the restrictive practice was used:

(a)    without the authorisation of a State: s 73Z(4) of the NDIS Act; or

(b)    without being covered by a behaviour support plan and either:

(i)    with the authorisation of a State: s 16(3) of the NDIS Reportable Incidents Rules; or

(ii)    where the State does not have an authorisation process for the use of the restrictive practice: s 16(4) of the NDIS Reportable Incidents Rules.

[47]    The specific information required to be provided to the Commissioner is set out in s 21(3) of the NDIS Reportable Incidents Rules as follows:

(a)    the name and contact details of the registered NDIS provider;

(b)    a description of the reportable incident, including the impact on, or harm caused to, the person with disability;

(c)    if known—the time, date and place at which the reportable incident occurred;

(d)    the names and contact details of the persons involved in the reportable incident;

(e)    the names and contact details of any witnesses to the reportable incident;

(f)    the immediate actions taken in response to the reportable incident, including actions taken to ensure the health, safety and wellbeing of persons with disability affected by the incident and whether the incident has been reported to police or any other body;

(g)    any further actions proposed to be taken in response to the reportable incident;

(h)    the name and contact details of the person making the notification; and

(i)    any other information required by the Commissioner.

A3. Contraventions of the statutory scheme

[48]    Section 73J of the NDIS Act provides that a person contravenes that section if they are a registered NDIS provider and breach a condition to which the registration of the person is subject.

[49]    Section 73F(2)(c) of the NDIS Act provides that the registration of a person as a registered provider is subject to a condition that the person comply with all requirements of the NDIS Practice Standards. Accordingly, a failure by a registered provider to comply with the NDIS Practice Standards will constitute a contravention of s 73J.

[50]    As set out above, s 73F (1) of the NDIS Act provides that the registration of a person as a registered NDIS provider is subject to any conditions determined by the NDIS Rules under s 73H of the NDIS Act. Accordingly, a failure by a registered provider to comply with the NDIS Restrictive Practices and Behaviour Support Rules will constitute a contravention of s 73J.

[51]    Section 73F(2)(h) of the NDIS Act provides that the registration of a person as a registered provider is subject to a condition that the person comply with all requirements of the NDIS Rules for the purposes of s 73Z. Accordingly, a failure by a registered provider to comply with the NDIS Reportable Incidents Rules will constitute a contravention of s 73J.

[52]    A person contravenes s 73V if the person is subject to a requirement under the Code of Conduct and fails to comply with the requirement: s 73V(3). In addition, s 73F(2)(b) of the NDIS Act provides that the registration of a person as a registered provider is subject to a condition that the person comply with all applicable requirements of the NDIS Code of Conduct. Accordingly, a failure by a registered provider to comply with the NDIS Code of Conduct will also constitute a contravention of s 73J.

Consideration

18 The contraventions are detailed in Annexure A to these submissions.

19 Mr Gupta has an intellectual disability, tuberous sclerosis, epilepsy, adenoma sebaceum and obstructive sleep apnoea. Mr Gupta was diagnosed with significant executive functioning and behavioural issues. He had (and retained through his life) the functional levels of a five-year-old. Mr Gupta often displayed aggressive behaviours. A discharge summary from Logan Hospital dated 16 February 2022 records Mr Gupta had “moderate intellectual impairment” and displayed “escalating violent behaviours and psychotic symptoms”. Mr Gupta has in the past punched a hole in a wall, broke a television set and stabbed his mother with a kitchen knife.

20 Mr Gupta’s parents engaged Aurora to provide supports to Mr Gupta by a supported living agreement dated 6 July 2021 (First Agreement) and Aurora provided supports to Mr Gupta from around July 2021 to the date of his death. Initially those supports were provided to Mr Gupta while he was in Logan Hospital. The contraventions concern Aurora’s provision of supports to Mr Gupta at Dyandra Drive, during the Relevant Period (being the time Mr Gupta was discharged from hospital on 16 February 2022 to 17 March 2023).

21 Aurora was incorporated on 30 January 2017. Aurora was registered as a NDIS provider on 8 February 2017. It was a registered provider during the Relevant Period. Aurora supported 38 participants in the 12 months preceding Mr Gupta’s death.

22 Aurora provided supports to Mr Gupta at Dyandra Drive that were funded under a NDIS Plan. In the Relevant Period, Aurora received funding in the amount of $6,799,049. Aurora ceased trading and went into voluntary liquidation shortly after being served with the Concise Statement and Originating Application in the proceedings. On 23 July 2024, the liquidator informed the Commissioner that he does not intend to take any steps in the proceedings and has not been provided any information that he can furnish to the Court concerning Aurora.

23 I am satisfied, on the evidence that the Commissioner has established a prima facie case, and that summary judgment ought to be entered.

Aurora’s knowledge of Mr Gupta’s behaviours and approvals to use restraints, subject to reporting conditions

24 As referred to above, Mr Gupta’s parents engaged Aurora to provide supports to Mr Gupta by a supported living agreement dated 6 July 2021 (First Agreement). The Agreement was signed by Mr Gupta’s father and Mr Mohamed Issak who was the sole director, sole shareholder and company secretary of Aurora in the Relevant Period. Under the First Agreement, Aurora was required to provide support to Mr Gupta 24 hours a day, seven days a week. Aurora provided supports to him from around July 2021. From 9 November 2021, Aurora was required to provides supports on a 2:1 basis for at least 6 months. On 28 November 2022, Mr Gupta’s parents entered into a second Supported Independent Living Service Agreement (Second Agreement) with Aurora that was signed by Mr Issak. The Second Agreement stated that Aurora would provide 2:1 care, 24 hours a day, seven days a week to Mr Gupta at Dyandra Drive. It also provided that the care was to include overnight shifts and both support workers were required to be awake during normal sleeping hours.

25 The approved restraints for Mr Gupta included:

(1) Authority to dispense: a fixed dose of Haloperidol (Serenace), 0.5 mg 2 x 0.5 mg morning and night (a total of 2 mg daily); Haloperidol (Serenace) 0.5 mg 2 x 0.5 mg 2-6 tablets twice a day when required with a maximum dosage of 5 mg per 24 hours on a pro re nata basis; Diazepam (Antenex) 5 mg 1-2 tablets every 4 hours when required with a maximum dosage of 30 mg per 24 hours, on a pro re nata basis (chemical restraint); and

(2) Authority to restrict Mr Gupta’s access to sharp objects including knives and razors, and lighters and matches (environmental restraint).

26 Throughout the Relevant Period, the evidence reflects that Aurora was aware of Mr Gupta’s behaviours, including:

(1) A letter dated 15 February 2022, from the Queensland Government Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships (Department) to Mr Issak (First Approval letter), which recorded there was an immediate and serious risk that Mr Gupta’s behaviour will cause harm to himself and others;

(2) On 16 February 2022, Mr Gupta moved to the supported independent living residence operated by Aurora because he was unable to live with other people;

(3) A Participant Risk Assessment completed by Ms Pravita Dhungel, an employee of Aurora who was the Coordinator at Dyandra Drive, and Mr Issak dated 30 March 2022 records:

Ankur has a challenging behaviour which are [sic] unpredictable at times. Ankur has the previous history of the attempt to self harm. Ankur has shown physical aggression multiple times in the past where he stabbed his mother, multiple incidents of spitting, scratching, and biting care givers, one recorded incident where he slit forearm of care giver and multiple history of property damage where he has thrown and damaged multiple equipment at his home. Ankur also has a history of absconding from the home and going to the neighbours home. Multiple incidents have been recorded where Ankur has expressed verbal aggression towards the neighbour. Ankur also expresses sexually inappropriate behaviour towards females. Ankur has a history of using inappropriate languages and approaching female [sic] inappropriate manner.

The Participant Risk Assessment recorded a risk minimising action was to “always watch him so his [sic] not absconding”.

(4) A positive behaviour support plan (which aims to reduce and eliminate restrictive practices) dated 28 June 2022 recorded that Mr Gupta still presented with verbal aggression, damaged property and incidents resulted in support workers calling the police and ambulance. The plan stated that 2:1 support, 24 hours a day, seven days a week should remain. The plan also provided that Mr Gupta should have choice and control over his life and daily activities. Mr Gupta should not be restricted from watching television as it is a “setting event” (a long-term trigger which increases the possibility of the person engaging in behaviours of concern) and not being allowed to consume Pepsi was a “short-term trigger”. As such, the positive behaviour support plan stated support workers should be attentive to his needs to reduce triggers; and

(5) Aurora support workers confirmed that care plans for Mr Gupta were always accessible on a table at Dyandra Drive.

27 Throughout the Relevant Period, the evidence reflects that Aurora was aware of approvals to use restraints, subject to reporting conditions, including from the following:

(1) The First Approval letter granted Aurora approval to use the environmental and chemical restraint on Mr Gupta between 15 February to 16 August 2022 and imposed a condition that Aurora was required to report the use of restrictive practices. The letter also recorded that Aurora’s application to use a physical restraint was denied. That such an application was made by Aurora also reflects they had knowledge of Mr Gupta’s behaviours;

(2) Section 7 and Appendix A of the positive behaviour support plan referred to the restraints approved in the First Approval. It further stated that an interim behaviour support plan must be completed and uploaded to the NDIS Commission Portal within 30 days of reporting the use of a restrictive practice. It specified that the restrictive practice should be monitored and evaluated by being reported per incident; and

(3) A letter dated 12 December 2022 from the Department to Aurora (Second Approval Letter) granted short term approval for the chemical and environment restraint to be used for the period 12 December 2022 to 11 April 2023. The Department also refused Aurora’s request to restrict Mr Gupta’s access to television and Ms Dhungel confirmed Mr Gupta had full access to television remotes. This letter specified Aurora was required to report the use of restrictive practices on Mr Gupta to the NDIS Commission.

Aurora’s failures during Mr Gupta’s life

Support workers sleeping while on duty and not watching Mr Gupta

28 The evidence establishes that on multiple occasions, Mr Gupta’s parents found support workers asleep on duty. His parents made verbal complaints to Aurora but received no response as to future steps Aurora would take to address their complaints.

29 I note that the Commissioner also relied on an event four weeks before Mr Gupta’s death when Mr Gupta set fire to the mattress in his bedroom using a lighter. Aurora’s support workers informed his mother he had found the lighter and was alone in the room at the time. The fire was extensive, as it burnt a hole from one side of the mattress to the other side. Although the Commissioner addressed this event under this heading, there is no basis to assume the support workers were asleep. That said, it is plain Mr Gupta was left alone when he should have been supervised.

Use of and failure to report regulated restrictive practices

Use of chemical restraints

30 The evidence establishes that Aurora used the chemical restraint on Mr Gupta on at least 52 occasions from 16 February 2022 to 17 March 2023 without ever reporting any use to the Commissioner.

Restrictions to Pepsi and television

31 The evidence reflects that on at least seven occasions between 5 July 2022 to his death, Aurora employees restricted Mr Gupta’s access to television. On at least 15 occasions between 3 May 2022 to 17 March 2023, Aurora restricted Mr Gupta’s access to Pepsi.

32 In both instances, these restrictions were not approved by the Department, were not covered by Mr Gupta’s positive behaviour support plan and no steps were taken to have it covered by an interim or comprehensive behaviour support plan.

Aurora’s failures that led up to and surrounding the death of Mr Gupta

33 On 16 March 2023, Mr Desmond Leota and Mr Nwoke Anyanwu (support workers employed by Aurora) were rostered to provide active 2:1 support to Mr Gupta between 3 to 11 pm. Mr Nnabuike Omeh and Mr Somtochukwu Okonkwo (also support workers employed by Aurora) were rostered to the 11 pm to 7 am night shift.

34 Mr Anyanwu left Dyandra Drive at approximately 10.20 pm on 16 March 2023, leaving Mr Gupta in the sole care of Mr Leota.

35 Unbeknown to Mr Leota, at approximately 10.35 pm, Mr Gupta left Dyandra Drive alone. The gate in the backyard was not locked. Aurora and its staff knew that Mr Gupta was not subject to any restraint that permitted Aurora to lock doors or gates meaning support workers needed to be attentive to Mr Gupta’s whereabouts.

36 Mr Leota found Mr Gupta outside Dyandra Drive. Mr Gupta then sat in the middle of the road and told Mr Leota that he wanted to go for a ride in an ambulance. Mr Omeh arrived at the scene at approximately 10.45 pm. Mr Omeh called an ambulance and took Mr Gupta home to Dyandra Drive to wait for the ambulance to arrive.

37 Sometime after 1 am on 17 March 2023, Mr Gupta left Dyandra Drive alone unbeknown to Mr Omeh or Mr Okonkwo. Mr Omeh was asleep in the living room. Mr Okonkwo was in the study and heard Mr Gupta open the back sliding door but thought this behaviour was normal and did not investigate it.

38 Between 1.30 to 2 am, Mr Omeh and Mr Okonkwo realised Mr Gupta was not in the house and went outside to search for him. Mr Omeh reported searching for approximately three hours.

39 Mr Gupta was hit by a vehicle while on foot near the exit of the M1 Pacific Highway in Eagleby. He sustained multiple injuries and died.

40 At around 6.30 am on 17 March 2023, Mr Issak contacted Mr Gupta’s parents and told them Mr Gupta had run away but that “everything was alright and the police had him”.

41 Mr Gupta’s parents later learned from their other son Mr Guarav Gupta, who was a Queensland police officer, that Mr Gupta had died. Mr Gupta’s mother informed Mr Issak that her son had died.

Conclusion on summary judgment

42 As illustrated above, the Commissioner has established, inter alia, that Aurora had knowledge of Mr Gupta’s behaviours and of the approvals to use restraints, subject to reporting conditions. They knew its obligations to report the use of chemical restraints on Mr Gupta but did not report the use of chemical restraints. They knew there was no approval to restrict access to Pepsi and television, yet they did so and failed to report these actions as required. Aurora knew they were to provide active 2:1 support for Mr Gupta 24 hours a day, which on some occasions they did not. There were multiple breaches of this on the night Mr Gupta died. Aurora failed to adequately supervise Mr Gupta which resulted in Mr Gupta being able to leave the premises alone, which led to his death.

43 The conduct is described above, and contraventions are identified in Annexure A. It is unnecessary to repeat those matters at this stage. The Commissioner identified the evidence on which it relied. I am satisfied on the evidence that the Commissioner has established a prima facie case in relation to the contraventions, and that summary judgment ought to be entered.

RELIEF SOUGHT

Pecuniary penalty

44 This application is to be determined under the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (RPA). Relevantly, ss 82-85 of the RPA are as follows:

82 Civil penalty orders

Application for order

(1)    An authorised applicant may apply to a relevant court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

(2)    The authorised applicant must make the application within 6 years of the alleged contravention.

Court may order person to pay pecuniary penalty

(3)    If the relevant court is satisfied that the person has contravened the civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.

Note: Subsection (5) sets out the maximum penalty that the court may order the person to pay.

(4)    An order under subsection (3) is a civil penalty order.

Determining pecuniary penalty

(5)    The pecuniary penalty must not be more than:

(a)    if the person is a body corporate—5 times the pecuniary penalty specified for the civil penalty provision; and

(b)    otherwise—the pecuniary penalty specified for the civil penalty provision.

(6)    In determining the pecuniary penalty, the court must take into account all relevant matters, including:

(a)    the nature and extent of the contravention; and

(b)    the nature and extent of any loss or damage suffered because of the contravention; and

(c)    the circumstances in which the contravention took place; and

(d)     whether the person has previously been found by a court (including a court in a foreign country) to have engaged in any similar conduct.

83 Civil enforcement of penalty

(1)    A pecuniary penalty is a debt payable to the Commonwealth.

(2)    The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.

84 Conduct contravening more than one civil penalty provision

(1)    If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.

(2)    However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.

85 Multiple contraventions

(1)    A relevant court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.

Note:          For continuing contraventions of civil penalty provisions, see section 93.

(2)     However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.

45 Noting the application of s 82(5)(a) of the RPA, the maximum penalty for each contravention is 1250 penalty units, or $262,500, and an individual penalty unit at the time of the contraventions was $210: Crimes Act 1914 (Cth) s 4AA.

46 Acknowledging that the starting point in imposing the penalty is s 82 of the RPA, as the applicant submitted, courts have applied general principles concerning the imposition of civil penalties in other regulatory contexts: see e.g. Electoral Commissioner of the Australian Electoral Commission v Futter [2021] FCA 876 at [22]; Commissioner of Taxation v Balasubramaniyan [2022] FCA 374 (Balasubramaniyan) at [62]-[63] and [65]-[77].

47 The primary purpose of any civil penalty regime is to ensure compliance with the statutory regime by deterring future contraventions: Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 (Agreed Penalties Case) at [24] and [55]. Civil pecuniary penalties are “primarily if not wholly protective in promoting the public interest in compliance [with the statute]”: Agreed Penalties Case at [55], [59], [68] and [110]; see also Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 399 ALR 599 (Pattinson) at [15]-[16], [43] and [45]. The aforementioned authorities reveal the principal object of a pecuniary penalty is deterrence. That is, specific deterrence of the contravener and, by that example, general deterrence of other would-be contraveners: Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 at [116].

48 The nature of the Court’s task in imposing a civil penalty under s 82 of the RPA, is to impose a pecuniary penalty that the Court determines to be appropriate, having regard to all relevant matters, including those set out in s 82(6) of the RPA. That process involves an intuitive or instinctive synthesis of all the relevant factors: Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 at [6]; TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190; (2012) 210 FCR 277 at [145]. Instinctive synthesis is the method by which the judge identifies all the factors that are relevant to the penalty and, after weighing all of those factors, reaches a conclusion that a particular penalty is the one that should be imposed: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (Markarian) at [37]; and see viagogo AG v Australian Competition and Consumer Commission [2022] FCAFC 87 at [129]-[133] and [148]-[151]. Section 82(6) sets out the factors required to be taken into consideration. In Balasubramaniyan at [93], the Court recognised that those factors are not exhaustive of what may be relevant, and the factors identified in other civil penalty contexts may also be relevant (recognising presently that there is overlap with the s 82(6) factors). The factors identified additionally include matters such as: the seriousness of the conduct; the size of the contravening company; the deliberateness of the contravention and the period over which it extended; whether further contraventions are likely; whether the contravention arose out of conduct of senior management; whether the contravener has a corporate culture conducive to compliance as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention; and whether there has been cooperation with the authorities, including in the context of the proceedings.

49 Any list of factors is not exhaustive, and ought not to be approached as a checklist. Rather, the Court is to weigh all the relevant circumstances. In this case, that must be applied in the context of the statutory scheme under which these contraventions occurred.

50 Regard is also had to the maximum penalty. In this respect, in Markarian, the majority observed at [31] that attention to maximum penalties will almost always be required because: the legislature has legislated for them; they invite comparison between the worst possible case and the case before the court at the time; and because they do provide, taken and balanced with all of the other relevant factors, a yardstick: see Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25 at [155]-[156]; and Pattinson at [53].

51 The principle of totality requires the Court to make a “final check” of the penalties to be imposed on a wrongdoer, considered as a whole, to ensure that the total penalty does not exceed what is proper for the entire contravening conduct: Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 at 53, citing Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59.

Consideration

Additional facts relevant to penalty

Various events during the Relevant Period

52 The Commissioner referred to several factual matters which was submitted to be relevant to the assessment of the penalty.

53 The First Approval letter specified Aurora must notify the Department of the First Approval within 14 days of approval being granted, in accordance with s 195(1) of the Disability Services Act 2006 (Qld). Aurora never complied with the requirement. Further, when Mr John Panoa (Program Support Officer in the Department’s Positive Behaviour Support and Restrictive Practices Team) emailed Aurora on 20 April 2022 informing Mr Issak that Aurora has not provided notification and that the form should be completed as a matter of urgency, Mr Issak neither responded to the email nor completed the form.

54 Additionally, on 25 July 2022, a Community Visitor allocated by the Public Guardian visited Mr Gupta at Dyandra Drive. The Community Visitor Report recorded, inter alia, that Ms Dhungel was unsure about what constituted a restrictive practice, the restrictive practices in place and the requirements of the First Approval. Further, it appeared that chemical restraints were administered on a regular basis and that staff essentially advised that they “just know” when to administer medication. When the Community Visitor emailed Mr Issak follow-up questions, Mr Issak’s response did not address how or when restrictive practices were reported to the Commissioner.

55 On 10 August 2022, Mr Dhungel emailed Ms Danielle Kitas (the Principal Clinician in the Department’s Positive Behaviour Support and Restrictive Practices Team) and cc’d Mr Issak, requesting a review of the First Approval. On 15 August 2022, Ms Kitas responded to Ms Dhungel by email (and cc’d Mr Issak) that Aurora would need to complete an application and send the form and any supporting documentation to the Department’s regional mailbox. On 18 August 2022, Ms Dhungel emailed the Department but did not attach the form Ms Kitas asked her to complete or provide any additional information in support of an application. On 22 August 2022, Ms Carmen Gonzalez (a Senior Clinician in the Department’s Positive Behaviour Support and Restrictive Practices Team) responded to Ms Dhungel (and cc’d Mr Issak) asking Ms Dhungel to provide the information in the application form. Ms Gonzalez further noted the First Approval has expired and asked Ms Dhungel to ensure that Aurora reported the use of restrictive practices without approval to the Commissioner. Aurora never reported the use of restrictive practices without approval.

56 On 12 October 2022, the Department received an application from Aurora for another short-term approval. By email dated 26 October 2022 from Mr Yves Engles (Principal Program Officer of the Positive Behaviour Support and Restrictive Practices Team at the Department) to Mr Issak, Mr Engels informed Aurora that it had not notified the Department of the First Approval and asked Aurora to complete the form as a matter of urgency. Again, Mr Issak never responded to the email or completed the form. By email dated 28 November 2022, Ms Kitas asked Ms Dhungel to confirm that Aurora understood its reporting requirements to each of the Department and NDIS Commission. Ms Dhungel confirmed to Ms Kitas on 5 December 2022 by email that Mr Issak was aware of the reporting process and it should not be a problem. On 8 December 2022, Ms Kitas emailed Ms Dhungel (and cc’d Mr Issak) that on receipt of a short-term approval, Aurora needed to report the approval. By email dated 9 December 2022 from Mr Engles to Mr Issak, Mr Engles referred to a telephone conversation with Mr Issak and stated that even though the First Approval had expired, Aurora was still required to comply with its obligations of notifying the Department about the First Approval. Mr Issak never responded to the email or completed the form.

57 The Second Approval letter, sent by email from Ms Kitas to Mr Issak, similarly specified Aurora must notify the Department of the Second Approval within 14 days of approval being granted.

58 By email dated 7 March 2023 from Ms Jennah Baker (a Behaviour Support Practitioner of Marcon Emotional Balance Centres Pty Ltd (Marcon)) to Mr Issak, Ms Baker raised a set of concerns about Marcon’s ongoing engagement with Mr Gupta. She raised issues including the following: Aurora’s limited engagement with Marcon’s attempt to collect data and provide behaviour management strategies; Aurora’s failure to comply with NDIS standards such as not providing data to create an accurate behaviour support plan, not providing incident reports, not responding to positive behaviour support plan training scheduling emails; and no engagement in positive behaviour support since August 2022.

59 Aurora repeatedly failed its reporting requirements despite multiple instances of being made aware of the requirements.

Events following Mr Gupta’s death

60 On 28 March 2023, Aurora reported the death of Mr Gupta and registered Mr Gupta’s behaviour support plan with the Commission, including uploading details of the relevant restrictive practices approvals. This amounts to a significant delay of 11 days before Mr Gupta’s death was notified to the Commission.

61 The Commissioner conducted an investigation into Mr Gupta’s death. Mr Omeh, Mr Okonkwo and Mr Leota participated in that investigation. Mr Issak declined to attend an interview.

Application of the relevant factors to the facts

62 The Commissioner addressed what they submitted were the relevant factors.

The nature and extent of the contraventions, circumstances in which they took place, and the nature and extent of the loss

63 The Commissioner emphasised the seriousness of the contraventions, and the consequences of them. The contraventions not only put Mr Gupta’s safety at a real and significant risk that ultimately contributed to his death, but it impacted his quality of life and denied him of his rights of freedom of expression, self-determination and decision making, independence and control.

64 The applicant submitted that failures to report are, by nature, difficult to detect. Failures are ordinarily only identified after an audit or investigation and requires significant resources of the NDIS Commission which suggests the penalty imposed needs to have strong consideration for general deterrence. I agree with the applicant’s submission.

65 The applicant drew attention to seven matters, which it submitted is relevant in assessing the seriousness of the contraventions. First, Mr Gupta was placed in Aurora’s care and Aurora was meant to be providing care on a 2:1 basis, 24 hours a day for 7 days a week. Second, Aurora knew Mr Gupta was vulnerable because of his disabilities and was reliant on the care provided by Aurora. Third, significant financial provision was made for Mr Gupta’s care, with payments between 5 July 2021 to 16 March 2023 being $440,370.16. Fourth, Aurora knew that Mr Gupta was at risk of absconding and did not have approval to lock the doors meaning it was necessary to always supervise him. Fifth, Aurora was informed at least five times between 15 February 2022 and 12 December 2022 that it must report the use of medication to the NDIS Commission. Sixth, Aurora demonstrated general complacency and carelessness such as failing to confirm receipt of the First and Second Approvals, the lack of protocols in place for the administration of Mr Gupta’s medication and failure to report and engage with behavioural support specialists. Seventh, Mr Issak provided inaccurate information to Mr Gupta’s mother after he died. I accept each of those matters are relevant to assessing the circumstances in which the contraventions took place for the purpose of determining the appropriate pecuniary penalty.

The deliberateness of the contravention and the period over which it extended

66 The Commissioner submitted that deliberateness of a contravention is an aggravating factor and importantly, inadvertence is not a mitigating factor. It was said that Aurora’s failure to report the use of medication was deliberate, in the sense that it was conduct committed wilfully in the knowledge, or reckless to the fact, it amounted to a contravention of the law. This was in the context where Aurora was informed of its notification requirements on at least five different occasions. I assume that the submission is that Aurora deliberately chose not to comply with the requests after being informed of the requirements on the five occasions. However, the Commission’s case is that Aurora knew its obligations and did not comply. Knowing that an act or omission is in contravention of the law does not make it a deliberate act. Aurora repeatedly failed to comply with its obligations, knowing they had an obligation imposed on them. That, in and of itself, is serious conduct.

Previous findings

67 The Commissioner accepted that Aurora has not been found to have engaged in similar conduct. This is a mitigating factor.

The size of the contravening company

68 The applicant submitted the size of the contravening company is an important consideration because it directly impacts the effectiveness of the penalty at achieving its objective as a deterrent.

69 Aurora is in liquidation so the penalty will not have any impact as specific deterrence. Nevertheless, there is a need for general deterrence so the penalty imposed should have regard to Aurora’s size at the time it committed the contraventions.

Whether further contraventions are likely

70 Aurora is unlikely to contravene again since it is in the process of being wound up.

Whether the contravention arose out of conduct of senior management

71 The applicant submitted that the knowledge of senior management is relevant such that it incentivises them to undertake better supervision. Correspondence relating to the requirement to report the use of medication and the requirement to notify the Department of the active approvals was either sent directly to Mr Issak or he was copied in emails. I accept it is thus likely that Mr Issak was aware, or it could be reasonably expected that he was aware, of Aurora’s obligations.

Whether there has been cooperation with the authorities

72 The Commissioner submitted that Aurora and Mr Issak did not cooperate in relation to the investigation and proceeding. Mr Issak declined to be interviewed by the NDIS Commission whereas Mr Omeh, Mr Okonkwo and Mr Leota participated in the investigation.

Further consideration

73 Aurora’s contravening conduct includes 130 contraventions and one course of conduct contravention. Mr Gupta was vulnerable, as are all persons who rely on the supports in the NDIS Act. He needed a safe living environment, which Aurora was to provide.

74 In summary, Aurora repeatedly failed to report any use of chemical restraints on Mr Gupta despite knowing its obligations; Aurora knew it lacked authorisation to restrict Mr Gupta’s access to Pepsi and television but nevertheless repeatedly did so (which worsened his quality of life); Aurora’s support workers were often asleep on the job and upon complaints from Mr Gupta’s parents, Aurora still did not rectify the conduct; Aurora repeatedly failed to report and engage with behaviour support specialists; and on many occasions Mr Gupta was left unsupervised.

75 Aurora’s failures adversely impacted on the quality of Mr Gupta’s life and placed his safety at a real and significant risk.

76 Aurora knew about Mr Gupta’s conditions, that he was prone to absconding and he required constant supervision. Despite Aurora plainly being on notice of Mr Gupta’s condition and the risks that inevitably flowed from it, there were multiple clear and obvious failures of its management and supervision of those risks. On the night of his death, Mr Gupta was repeatedly left unsupervised. This contravened the Second Agreement which provided Aurora must provide 2:1 care, 24 hours a day, and for seven days a week. As a result of Aurora’s failure to comply with the condition, Mr Gupta was able to leave his home by himself. Aurora’s conduct had fatal consequences.

77 The contraventions reflect that Aurora’s conduct was repeated and ongoing. They were not rectified in the face of being notified of its shortcomings. It reflected an unacceptable attitude by Aurora to its responsibilities as a NDIS provider which is unacceptable.

78 Given the circumstances of Aurora’s conduct, the contraventions can properly be described as of the utmost seriousness.

79 Mr Gupta’s parents placed him in Aurora’s care. They were an established organisation. His parents placed their trust in them, as they were entitled to do so. They trusted that Aurora would provide the supervision, support and safe environment their son needed. Aurora did not provide those things. As can be seen from the factual bases of the contraventions, the multiple breaches all relate to matters that are self-evidently necessary and fundamental to ensuring Mr Gupta was supported with necessary supervision, was provided with a safe environment and which also preserved his quality of life, independence and freedom of self-expression.

80 As I observed in Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629:

The consequences that may ensue from breaches of the NDIS Code of Conduct and NDIS Practice Standards are potentially grave given the vulnerability of NDIS participants. The present case is a stark example of this. The objects of the NDIS scheme include “protecting and preventing people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS”, and “promoting the provision of high quality and innovative supports that enable people with disability to maximise independent lifestyles and full inclusion in the community”. The importance of NDIS providers (and persons employed or engaged by them) complying with the obligations imposed by the NDIS Act, cannot be overstated. The protective nature of ss 73V and 73J, their role in promoting high quality supports for people with disability, and the vulnerability of people with disability to harm when that support is not provided, emphasise the seriousness of breaching each of those provisions.

81 The Commissioner sought a single penalty of $2,369,500 in respect of the 130 contraventions and one course of conduct contravention. The approach by which that figure was reached was provided to the Court in tabular form, and is attached to these reasons as Annexure B. The table included, inter alia, the maximum penalty for the contravention, and the percentage of that maximum which the penalty represented.

82 Justice Raper expressed concern about the approach in Commissioner of the NDIS Quality and Safeguards Commission v Valmar Support Services Ltd [2025] FCA 11 (Valmar):

[71]    First, care must be taken to not reduce the highly evaluative exercise to a mathematical one. No doubt by providing the table, the parties sought to be of assistance to the Court. However, a great degree of caution must be exercised by this approach. The affixing of penalties is not a mathematical exercise. The determination of an appropriate pecuniary penalty is a highly evaluative exercise. As observed by Wigney J in Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd [2016] FCA 1526 at [144]:

The metaphoric scales, however, do not produce one correct answer. Minds may well differ about the weight and significance to be given to some of the facts and circumstances. Equally, minds may well differ as to the size of the penalty required to achieve the object of specific and general deterrence in all the circumstances. These are not matters of science, mathematics or pure logic. As was pointed out earlier, it is well accepted that the evaluative process involved in determining an appropriate penalty may produce a range of possible penalties, none of which could definitively be said to be more appropriate than any other within that range. Any penalty within that range could be accepted to be an appropriate penalty, even though it may not be able to be said to be the only appropriate penalty.

[72]    Ultimately, the evaluative exercise involves a consideration of the relevant facts, circumstances and considerations specific to the contravener to determine whether the proposed agreed penalties are within the range of possible appropriate penalties.

…

[75]    Thirdly, it is problematic to impose a penalty by reference to a percentage said to be referrable to what is perceived to be percentages accepted by the Court in another case.

83 The applicant submitted, contrary to Raper J’s characterisation, the approach did not reduce what should be an evaluative exercise to a “mathematical one”. Rather, it was said the reference to percentages of the maximum penalty was to demonstrate a reasonable relationship between the maximum penalty and the penalty sought. After the hearing and in response to questions from the Court, the Commissioner notified chambers that they did not urge the Court to rely on the table in assessing the penalty to be imposed. Nonetheless it is appropriate to address the approach taken.

84 The approach is in a context where the Commissioner submitted that the approach taken was to charge a course of conduct if the individual contraventions could not be enumerated but where each contravention could be specified, they are charged as individual contraventions. This has the consequence that where a course of conduct is charged which involves multiple breaches (e.g. contravention 1) the maximum penalty is the same as for one individual breach (which are each of contraventions 3-131). As illustrated in Annexure B, it also follows that where there are multiple individual contraventions in respect to the same type of conduct (e.g. 14 failures to report the use of medication, being contraventions 3-16) the maximum penalty overall for that conduct is substantially higher. It can lead to disproportionally high maximum penalties for some contraventions, with less for other perhaps more serious contraventions. That is illustrated in this case. In my view the most serious contraventions are those in contraventions 1 and 2. Contravention 1 is a course of conduct covering over 13 months leading to the day of Mr Gupta’s death, with contravention 2 being the repeated failings on the night of Mr Gupta’s death. The maximum penalty for those contraventions constrains the penalty that can be imposed on Aurora (which necessarily impacts on the overall penalty).

85 The approach of reflecting the penalty as a percentage of the maximum penalty is artificial and problematic. I agree with Raper J’s concerns. That is highlighted in this case because as reflected in Annexure B, with one exception, for each group of individual contraventions the penalty sought is 5% of the maximum penalty. That is so regardless of the number of contraventions within the group, or the nature of the contravention. It implies for each individual contravention the seriousness is the same. All the groups do not appear to be of the same level of seriousness. Different contraventions are directed to different evils, and can have different impacts, some directly affecting the quality of life of the participant. That said, the observation of statutory conditions which comprise most of the contraventions are, in and of themselves, serious. Observance of the conditions of this scheme is essential to its proper operation. Each contravention must be assessed on the particular facts and circumstances of the case. The contravention of a particular provision may be more serious in the circumstances of one case compared to another case. The use of percentages in this context may be misleading as to the seriousness of the contraventions (which may be misused in future cases).

86 At the time of the hearing, the table provided by the Commissioner reflected that for one contravention a penalty which was 10% of the maximum was sought with no explanation as to why it was distinguished, particularly given there were other similar contraventions. In response to this being raised by the Court, the Commissioner provided the explanation to the Court by email after the hearing. The Commissioner considered that a contravention, which arises as result of a failure by a provider to take “reasonable steps to facilitate development of a comprehensive behaviour support plan”, is relatively more serious because it could mean the participant may continue to experience challenging behaviours which may escalate the behaviour and use of restrictive practices. The Commissioner said that reasoning also applied to contravention 73 which therefore ought to be amended to seeking a penalty 10% of the maximum penalty (rather than 5%). This response rather highlights the concern with this approach.

87 In those circumstances, the uniformity of the percentage in most of the groups of contraventions does tend to reflect a mathematical and arbitrary approach. As Raper J observed, in Valmar the “determination of an appropriate pecuniary penalty is a highly evaluative exercise”. Further, on this approach there is no account taken for the principle of totality. Submissions as to why, in relation to contraventions (whether addressed individually or as a course of conduct), the penalty(s) sought is said to be appropriate is of much more assistance.

88 After considering what is an appropriate penalty for the contravention or courses of conduct, the Court must consider the principle of totality to ensure that the total penalty does not exceed what is proper for the entire contravening conduct. A single penalty can be imposed for multiple contraventions and as already explained, that is what is sought in this case.

89 Although the respondent is in liquidation, the penalty to be imposed serves to recognise the gravity of the contraventions and fulfils, inter alia, the important role of general deterrence in the penalty process. Given the statutory scheme, that must be the dominant consideration. These contraventions, for reasons already explained, are of the utmost seriousness. Aurora has over an extended period displayed an ongoing and flagrant disregard for its legal obligations as a NDIS provider. Having considered the relevant principles and the factual bases of the contraventions in my view the appropriate penalty is $2,200,000.

Declaratory relief

90 The applicant seeks declaratory relief in terms that it identified.

91 The power to grant declaratory relief pursuant to s 21 of Federal Court of Australia Act 1976 (Cth) “is a very wide one” and the Court is “limited only by its discretion”: Seven Network Ltd v News Ltd [2009] FCAFC 166; (2009) 182 FCR 160 at [1016], citing Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421 (Forster) at 435. Three requirements need to be satisfied before making declarations: (1) the question must be a real and not a hypothetical or theoretical one; (2) the applicant must have a real interest in raising it; and (3) there must be a proper contradictor: Forster at 437-438. That a party has chosen not to oppose a particular grant of declaratory relief is not an impediment to such relief being granted by the Court: Australian Competition and Consumer Commission v MSY Technology Pty Ltd [2012] FCAFC 56; (2012) 201 FCR 378 at [14], [30]-[33]. Other factors relevant to the exercise of the discretion include: (a) whether the declaration will have any utility; (b) whether the proceeding involves a matter of public interest; and (c) whether the circumstances call for the Court expressing its disapproval of the contravening conduct: Australian Securities and Investments Commission v Pegasus Leveraged Options Group Pty Ltd [2002] NSWSC 310; (2002) 41 ACSR 561 at 571; Australian Securities and Investments Commission v Monarch FX Group Pty Ltd, in the matter of Monarch FX Group Pty Ltd [2014] FCA 1387; (2014) 103 ACSR 453 at [63]; Australian Securities and Investments Commission v Stone Assets Management Pty Ltd [2012] FCA 630; (2012) 205 FCR 120 at [42].

92 Given the circumstances of this case, I am satisfied that the declaratory relief in the terms sought is appropriate. The matter is of public interest by reason of, inter alia, its subject matter, Mr Gupta’s vulnerable position, and the nature and consequences of the failures. I accept the applicant’s submission that the declaration is informative as to what has occurred and contains appropriate and adequate particulars of why the conduct is a contravention.

Conclusion

93 I am satisfied that the declarations should be made in the terms sought.

94 In addition, pursuant to s 82(3) of the RPA, Aurora is to pay to the Commonwealth a pecuniary penalty of $2,200,000 for contraventions of ss 73J and 73V of the NDIS Act.

Associate:

Dated:    10 October 2025

ANNEXURES

Annexure A — Table of Contraventions

The applicant has provided the Court with a table containing the list of alleged contraventions. The following acronyms are used:

PS means National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 (Cth)

Code means National Disability Insurance Scheme (Code of Conduct) Rules 2018 (Cth)

RPBS means National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (Cth)

RI means National Disability Insurance Scheme (Incident Management and Reportable Incidents) Rules 2018 (Cth)

Relevant sections of the table are reproduced below:

Annexure B — Penalty Analysis

The applicant has provided the Court with a table which demonstrates how they came to the final civil penalty.

Sections 73J and 73V state that the civil penalty for contravention of the section is 250 penalty units. Pursuant to subs 82(5) of the RPA (which applies to sections 73J and 73V by operation of section 78 of the RPA and s 73ZK of the NDIS Act), the maximum pecuniary penalty that a court may impose for a contravention of section 73J and section 73V by a body corporate is 1,250 penalty units (being five times the amount specified for the civil penalty provision (i.e. 250 civil penalty units x 5).

Relevant sections of the table are reproduced below:

Annexure C — Dates Aurora denied Mr Gupta’s access to television

Annexure D — Dates Aurora denied Mr Gupta’s access to Pepsi