Federal Court of Australia

Commissioner of the NDIS Quality and Safeguards Commission v Peters (Penalty and Other Relief) [2026] FCA 1241

ORDERS

THE COURT ORDERS THAT:

1.    Pursuant to s 73ZN(10) of the National Disability Insurance Scheme Act 2013 (Cth), the respondent pay a civil penalty of $180,000.

2.    The respondent pay the applicant’s costs as agreed or taxed.

3.    The respondent’s application dated 5 August 2025 otherwise be dismissed.

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

REASONS FOR JUDGMENT

SHARIFF J:

1.    INTRODUCTION

1    On 1 May 2026, I delivered a judgment in which I found that the respondent (Ms Peters) contravened s 73ZN(10) of the National Disability Insurance Scheme Act 2013 (Cth) (NDIS Act): Commissioner of the NDIS Quality and Safeguards Commission v Peters [2026] FCA 537 (Liability Judgment or LJ).

2    By way of summary, I found that Ms Peters breached a banning order that had been issued on 10 December 2024 pursuant to s 73ZN(2)(b) of the NDIS Act (Banning Order) by engaging in certain banned activities in respect of two NDIS participants. The Banning Order had taken effect from 5pm on 1 January 2025 and continues to operate for a period of 2 years.

3    Following on from the Liability Judgment, the applicant (Commissioner) now seeks the imposition of civil penalties in the range of $160,000 to $230,000 (which is less than half of the applicable statutory maximum). The Commissioner also seeks a declaration as to the contravention engaged in by Ms Peters, an injunction to the effect that Ms Peters be restrained from breaching the Banning Order, and an order that Ms Peters pay the Commissioner’s costs.

4    Ms Peters filed submissions which, in substance, opposed the orders sought by the Commissioner. She acknowledged the seriousness of her conduct but sought to explain it by reference to her parlous circumstances and otherwise submitted that she did not have the financial capacity to pay a penalty, let alone a substantial one. Ms Peters filed no evidence in support of her submissions. As Ms Peters was self-represented, I have given her submissions some weight despite the absence of evidence, as I explain further below.

5    For the reasons that follow, I have determined that Ms Peters should pay a civil penalty of $180,000 and pay the Commissioner’s costs as agreed or taxed. I have rejected the Commissioner’s claim for declaratory and injunctive relief. These reasons assume familiarity with the Liability Judgment and I do not repeat the findings that I have already made, other than where necessary to do so.

2.    LEGISLATIVE FRAMEWORK AND APPLICABLE PRINCIPLES

6    Section 73ZN(10) (as it was at the time of the contravening conduct) was a civil penalty provision carrying a maximum penalty of 1,000 penalty units for each contravention. That provision has since become s 73ZNA pursuant to the National Disability Insurance Scheme Amendment (Integrity and Safeguarding) Act 2026 (Cth).

7    By s 73ZK of the NDIS Act, the civil penalty provisions of Part 3A of the NDIS Act are enforceable under Part 4 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) (Regulatory Powers Act). By operation of ss 82(3) and 85(6) of the Regulatory Powers Act, the Court may impose pecuniary penalties if it is satisfied that a person has contravened a civil penalty provision and having regard to all relevant matters including:

(a)    the nature and extent of the contraventions;

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

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

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

8    Whilst the factors set out in s 82(6) of the Regulatory Powers Act must be taken into account, they do not exclude consideration of the other usual factors that Courts take into account in imposing an appropriate civil penalty in a regulatory context. As Abraham J stated in Commissioner of the NDIS Quality and Safeguards Commission v Australian Foundation for Disability [2023] FCA 629 at [45]:

The nature of the court’s task in imposing a civil penalty under s 82 of the RPA, is to impose such pecuniary penalty as 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 of the relevant factors: ACCC v Coles Supermarkets Australia Pty Limited [2015] FCA 330; (2015) 327 ALR 540 at [6]; TPG Internet Pty Ltd v ACCC [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, [37]: and see Viagogo AG v ACCC [2022] FCAFC 87; at [129]–[133], [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 contravenor 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 co-operation with the authorities, including in the context of the proceedings.

(Emphasis added.)

9    The factors identified by Abraham J are well established and have been addressed in innumerable authorities and it is unnecessary to repeat them here. For present purposes, it is sufficient to add only the following observations:

(a)    a penalty of appropriate deterrent value may be guided by the list of factors identified by French J in Trade Practices Commission v CSR Limited [1990] FCA 521; ATPR 41-076 at [42] (referred to as the “French Factors”), however these considerations are not to be treated as a “rigid catalogue of matters for attention” as if a legal checklist: Australian Building and Construction Commissioner v Pattinson (2022) 274 CLR 450 at [19] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ) citing Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; 165 FCR 560 at [91] (Buchanan J);

(b)    the maximum penalty prescribed by statute, although important, is but one yardstick that ordinarily must be applied when considering the quantum of a civil penalty but must not be applied mechanically: Pattinson at [53] affirming Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; 340 ALR 25 at [155]–[156] (Jagot, Yates and Bromwich JJ) (citing Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31] (Gleeson CJ, Gummow, Hayne and Callinan JJ));

(c)    the statutory maximum does not implicitly require that contraventions be graded on a scale of increasing objective seriousness with the maximum reserved exclusively for the worst category of contravening conduct, which tends to focus on desert rather than deterrence: Pattinson at [49], [51];

(d)    considerations of deterrence and the protection of the public interest justify the imposition of the maximum penalty where it appears that no lesser penalty will be an effective deterrent against similar contraventions: Pattinson at [50]; and there must ordinarily be some reasonable relationship between the theoretical maximum and the final penalty imposed: Pattinson at [55] affirming Reckitt Benckiser at [156];

(e)    the relationship of reasonableness may be established by reference to the circumstances of the contravener and the circumstances of the conduct involved in the contravention insofar as those circumstances provide insight into the extent of the need for deterrence: Pattinson at [55] affirming Reckitt Benckiser at [156]; and

(f)    subject to the particular statutory scheme, retribution has no part to play in determining the appropriate civil penalty: Pattinson at [49], [51].

10    In determining the appropriate penalty, it is necessary to bear in mind the unequivocal statement made in Pattinson at [9] that:

…the purpose of a civil penalty is primarily, if not solely, the promotion of the public interest in compliance with the provisions of the Act by the deterrence of further contraventions of the Act.

11    The appropriateness of the amount of a penalty must be assessed by reference to the specific civil penalty provision which has been contravened in light of its context and purpose, and the objects of the relevant statute as a whole: see Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; 262 CLR 157 at [116] (Keane, Nettle and Gordon JJ), citing Commonwealth v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; 258 CLR 482 (FWBII) at [55] (French CJ, Kiefel, Bell, Nettle and Gordon JJ).

3.     THE APPROPRIATE PENALTY

12    I turn now to consider the factors that I consider to be relevant to an assessment of the appropriate penalty to be imposed, if any.

3.1    The purpose of the NDIS Act and s 73ZN(10)

13    The objects of the NDIS Act and, specifically, the purposes to be achieved by s 73ZN(10) are relevant to assessing the appropriate penalty. The objects stated in s 3 of the NDIS Act include the promotion of the provision of high-quality supports to people with disability, and protecting and preventing people with disability from experiencing harm arising from poor quality or unsafe supports and services. These objects are to be achieved by, amongst other things, establishing a national regulatory framework for persons and entities providing support and services to people with disabilities.

14    In Commissioner of the NDIS Quality and Safeguards Commission v Valmar Support Services Ltd [2025] FCA 11 at [4], Raper J observed:

The purpose of the NDIS is to enable persons with disability, through the provision of tailored high quality and innovative support services that are safe (funded by the Australian government), to exercise their autonomy, facilitate their inclusion in the community, and the prevention of harms caused by support or service providers engaging in poor quality or unsafe practices: NDIS Act ss 3, 4.

15    Within these broad purposes, the NDIS Act enacts a regime for the registration of NDIS providers. Section 73B(1) provides that the National Disability Insurance Scheme rules may require that specified classes of supports provided under an NDIS participant’s relevant plans are to be provided only by persons who are registered under s 73E to provide those classes of supports. In turn, s 73E provides for the Commissioner to register a person as a registered NDIS provider upon an application by that person under s 73C. The provision of NDIS support services by a person holding themselves out to be a registered NDIS provider (when they are, in fact, unregistered) gives rise to both a contravention of a civil penalty provision and an offence: see s 73B(3)-(6) of the NDIS Act. The same position prevails where NDIS support services are provided by a person who fails to comply with the requirement to be registered: see s 73B(2) and (4)-(6).

16    The obvious purpose of the scheme as enacted by Parliament, including by the enactment of civil penalty provisions and offences, is the management of the risk of the provision of services to vulnerable members of the Australian community by persons who are not authorised to provide such services. In doing so, the Parliament has enacted a regime to ensure the funding of NDIS support services and the benefits to be derived by NDIS providers, as well as the operation of the NDIS market, are regulated by the oversight and enforcement activities of the Commissioner. These purposes are manifest from the face of the NDIS Act (read as a whole) and are also reflected in the Explanatory Memorandum to the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017 at [84]-[90]:

84. New section 73B provides for NDIS rules to be made to specify classes of supports provided under participant’s plans which can only be provided by registered NDIS providers. This is an important safeguard to ensure that for certain high risk supports, such as developing or implementing behaviour support plans which may include the use of a restrictive practice, a provider must meet the quality and standards required to deliver those supports.

85.     Where registration is mandated for a class of supports, the registration arrangements provide for a rigorous framework for assessing the quality and safety of supports, prior to a provider entering the NDIS market.

86. New subsection 73B(2) imposes a civil penalty on providers who provide a support under a participant’s plan for which they are required to be registered and they are not registered.

87. The penalty is a maximum of 250 penalty units. A penalty unit is prescribed for the purposes of the Crimes Act 1914 . That Act also provides that, if a body corporate is convicted of an offence, a fine of up to five times the penalty stated can be imposed.

88. The penalty reflects an assessment about the high level of risk that a person with disability may be exposed to if an unregistered provider provides high risk supports but has not gone through the quality assurance process in order to be registered for that category of supports.

89. Registration requirements will include a risk-based proportionate assessment of an application to deliver categories of supports and services against the NDIS Practice Standards. The NDIS rules will be able to prescribe classes of supports for which registration is required based on emerging risks in a rapidly developing market in which new and innovative supports and services are being offered to people with disability under the NDIS.

90.     This is consistent with the Commissioner’s obligation in new subsection 181D(4) to support and maintain a diverse and sustainable NDIS market. In response to any changes in NDIS rules requiring provider’s to be registered, the Commissioner will have an important educative role and will conduct compliance and enforcement activities in a risk responsive and proportionate matter.

17    Within the specific context of the regime enacted under the NDIS Act, the purpose of s 73ZN(10) is also obvious. By empowering the Commissioner to make a banning order that has the effect of prohibiting or restricting specified activities by an NDIS provider or by a person who was an NDIS provider, Parliament has not only enacted a regime for regulating the conduct of NDIS providers but more importantly the protection of the public. The myriad interests of the Australian community ought not to be viewed in any narrow way. It is plain that one purpose to be achieved by the regime is the protection of vulnerable members of the Australian community. Another purpose is to safeguard and maintain accountability over the allocation of precious taxpayer funds to the pursuit of a noble activity of welfare on the part of the elected representatives of the Commonwealth. Yet another purpose is to ensure the quality of the provision of services by those in whom confidence has been reposed to deliver those services to vulnerable members of the community.

18    A breach of a banning order reflects a fundamental breach of obligation and trust as between the person the subject of the banning order and vulnerable members of the Australian community, and also that person and the State and the broader community as a whole. It is a misuse of the position of power, trust and confidence reposed in that person. This has been reflected in the serious penalties applicable to the breach of banning orders. These obvious points are made plain in the Explanatory Memorandum at [261]-[262]:

261. Failure to comply with a banning order is a contravention which carries a maximum civil penalty of 1,000 penalty units (subsection 73ZN(10)).

262. Banning orders are the most serious regulatory response to prevent a person from providing any supports or services in the NDIS market. It is intended to apply to a person employed or otherwise engaged by an NDIS provider in circumstances where there are no other regulatory options available to the Commissioner or other regulators, to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services provided under the NDIS. The civil penalty in relation to this provision is therefore substantial to indicate the serious nature of non-compliance with a banning order.

19    What this reveals is the need for the Court to fix a penalty that is appropriate having regard to the object of deterrence, securing compliance with the legislative regime and securing confidence for the very objects sought to be promoted by the NDIS Act. These considerations loom large in the present case.

3.2    The nature, circumstances and extent of the contraventions

20    The nature, extent and circumstances of the contraventions engaged in by Ms Peters were appalling. They were appalling because they involved knowing and deliberate conduct in defiance of the Banning Order that occurred over the course of several months for the purpose of securing financial gain at the expense of two NDIS participants and taxpayers. It is the type of conduct that members of the Australian community would correctly regard as a blight on the NDIS scheme and as undermining fundamental purposes of that scheme. It may be that there have been other instances of gross breaches of the NDIS Act which have had more serious effects, but resort to comparisons would make Ms Peters’ conduct no less appalling. I will explain why.

21    The Banning Order was made in light of Ms Peters’ conduct that had preceded it. The Banning Order was made following Ms Peters’ conviction, on 30 August 2024, of seven counts of dishonestly obtaining financial advantage by deception in relation to fraudulent NDIS claims. These fraudulent NDIS claims totalled $25,962.04. In respect of those offences, Ms Peters was convicted and sentenced to an 18-month community correction order.

22    The Banning Order was made on 10 December 2024 (only a few months after Ms Peters’ convictions) and commenced on 1 January 2025. Ms Peters’ breaches of the Banning Order occurred in circumstances where she had been convicted barely a few months beforehand and during the period of her community corrections order.

23    Within only a few weeks of the Banning Order taking effect, Ms Peters was making arrangements, through her communications with Ms O’Reilly, to breach the Banning Order by providing support services to Mr Hugill. These circumstances reveal that Ms Peters had multiple opportunities in which she could have turned back from her contravening conduct. Through January, February and March 2025, there were numerous phone calls, emails and text messages between Ms Peters and Ms O’Reilly, and attempted attendances at Mr Hugill’s home. Each of these events required Ms Peters to consider whether she would, or would not, engage in conduct in breach of the Banning Order. Despite these multiple opportunities, Ms Peters pressed on regardless. Indeed, despite being told on 14 March 2025 that Mr Hugill wished to cease services with her, Ms Peters stated that she would remain as Mr Hugill’s Coordinator of Supports (COS) until his NDIS plan review in April.

24    Ms Peters’ conduct in relation to Mrs Hardes was similarly a defiant breach of the Banning Order. Ms Peters and Mrs Hardes had contact by telephone on numerous occasions from 17 January 2025 until 17 March 2025. On 17 March 2025, Ms Peters contacted Mrs Hardes by phone and made arrangements to attend at her house to provide support coordination. Ms Peters subsequently did attend at Mrs Hardes’ house on 20 March 2025. It was only upon Ms Peters being caught in the act by investigators from the NDIS Commission at Mrs Hardes’ home on 20 March 2025 that the contravening conduct ceased.

25    Ms Peters’ contravening conduct is exacerbated because it occurred for personal gain. In an email to the NDIS Commission investigators on 28 April 2025, Ms Peters stated, “My intention was not to deceive or breach any NDIS regulations, but to have a temporary source of income while awaiting my superannuation payout.” Ms Peters candidly conceded that she received benefits under the NDIS scheme.

26    A further aggravating circumstance is that Ms Peters made considerable effort to conceal her contravening conduct and to circumvent the effect of the Banning Order. This involved issuing service agreements and invoices under the name of Ms Kristina Maloney. Under this arrangement, NDIS payments in many thousands of dollars were paid to Ms Maloney’s account and then transferred to Ms Peters. In effect, Ms Peters devised a scheme to deceive third parties and conceal her offending conduct, while continuing to invoice for services for which she was banned from providing.

27    I am satisfied that Ms Peters’ breach of the Banning Order was serious, calculated and deliberate. The contravening conduct commenced very soon after the Banning Order came into effect and continued for a period of some months. Ms Peters’ offending only ceased upon being detected by the Commission. Ms Peters’ conduct reflects utter contempt for the Banning Order in that she went to some effort to circumvent its effect and did so for personal gain.

28    It is relevant that the NDIS participants were vulnerable members of the community. Mr Hugill had numerous medical conditions and disabilities, including schizophrenia, autism and substance use issues. His medications included daily methadone. Mrs Hardes is a 75-year-old woman living with paraplegia as the result of a T11 spinal injury. She uses a wheelchair for mobility, has injuries to her feet, and ongoing sores and infections. I am satisfied that Ms Peters breached the Banning Order in respect of vulnerable members of the community with significant disabilities who were reliant on NDIS support services.

3.3    Nature and extent of any loss or damage suffered

29    After the Banning Order came into effect, Ms Peters issued invoices (under Ms Maloney’s name) for the provision of support coordination services to Mr Hugill and Mrs Hardes.

30    The invoice for Mrs Hardes was $250.35. Ms Cayirylys did not pay this invoice, although she cannot now recall why that is so. The total amount of the invoices for Mr Hugill was $500.60, which was paid on 19 February 2025. These invoices purport to concern the provision of a total of 5.5 hours of support coordination on 16 and 17 January 2025. Given the sequence of events in respect to Mr Hugill, it is unclear whether these services (or the claimed amount of hours) were actually provided. Mr Hugill had annual funding of $12,739.56 allocated in his NDIS plan for support coordination and psychosocial recovery coaches. The result is that this annual allocation would have been reduced by $500.60, in circumstances where it is questionable whether he received those services. Even if Ms Peters did provide some or all of those services, the effect was to deny another appropriately authorised person from providing those services to Mr Hugill.

31    There is also further loss and damage arising from Ms Peters’ conduct. It is the immeasurable loss and damage that undermines the integrity of the NDIS Scheme. By charging for NDIS services which Ms Peters was banned from performing, taxpayers’ money was being used for an unlawful purpose, which contributes to depriving the NDIS scheme of legitimacy and stability.

3.4    Previous similar conduct

32    Ms Peters has not previously breached a Banning Order. However, as noted above, the circumstances of her breach of the Banning Order arose after she had been convicted on seven counts in relation to fraudulent NDIS claims. Ms Peters was still serving an 18-month community correction order in respect of these convictions for these fraud charges when she breached the Banning Order.

3.5    General deterrence

33    For the reasons I have already explained, I am satisfied that there is need in the present case to impose a penalty that is appropriate having regard to general deterrence and securing the objects of the NDIS Act.

34    A breach of a banning order represents a serious undermining of the regulatory regime enacted by the NDIS Act. The penalty to be imposed must be one that acts as an effective deterrent to any person subjected to a banning order from breaching the terms of that order and to secure compliance with the NDIS Act.

35    Whilst Ms Peters accepts the seriousness of her contraventions, she submits that deterrence should not become the sole or overriding consideration and that the penalty had to remain proportionate to the circumstances of her case. She submits that the object of general deterrence can still be secured by the imposition of a penalty that is much lower than one in the range advanced by the Commissioner. I have considered Ms Peters’ submissions in this respect, but as I explain below, I am satisfied that a penalty in the range advanced by the Commissioner is appropriate having regard to all the circumstances.

3.6    Specific deterrence

36    The Commissioner submitted that Ms Peters has demonstrated a willingness to continue engaging in contravention of the law having regard to her previous convictions on seven counts of defrauding the NDIS scheme and her deliberate breaches of the Banning Order.

37    Ms Peters acknowledges that her past conduct demonstrated a willingness to breach her obligations but says that she has not engaged in any breaches or NDIS activities since March 2025. She says that she has since that time complied with the Banning Order. There is no evidence to suggest that this is not the case.

38    Whilst I have considered and given weight to Ms Peters’ submissions in this respect, I am satisfied that there is nevertheless a need to determine a penalty that serves the object of specific deterrence as against the risk of future breaches by her.

3.7    Co-operation with the Commissioner

39    Ms Peters did not cooperate with the Commissioner or its investigators in both the investigation and subsequent court proceedings for this matter.

40    When confronted by investigators from the NDIS Commission at Mrs Hardes’ house on 20 March 2025, Ms Peters denied she was there to provide support or coordination services for Mrs Hardes. I did not accept her explanation that she was merely there to help Mrs Hardes find a new COS.

41    Ms Peters attended an interview with the NDIS Commission investigators on 17 April 2025. In that interview, Ms Peters denied knowledge of the false service agreements and invoices, and denied provision of service coordination to the NDIS participants named in those invoices.

42    It was only later when it was obvious she had been caught out that Ms Peters acknowledged (to some extent) her conduct in an email to the NDIS Commission investigators on 28 April 2025. However, even then, Ms Peters endeavoured to minimise the extent of her misconduct and to attribute some blame to Ms Maloney.

43    Ms Peters’ lack of cooperation has continued into the proceedings before this Court. Her letter of 14 October 2025, purportedly addressed to the Court, admitted the provision of services to Mrs Hardes and Mr Hugill in contravention of the Banning Order. However, the letter sought to minimise the seriousness of her conduct and sought to point blame at Ms Maloney. Ms Peters did not make any formal admissions to any of the allegations made against her, which required the matter to be heard at a contested hearing, including requiring certain of the Commissioner’s witnesses for cross examination.

3.8    Remorse and contrition

44    In her written submissions, Ms Peters states that she has felt genuine remorse throughout the proceedings and says she has not always been able to express herself clearly due to her personal circumstances which include her limited financial means, her suffering from anxiety and representing herself in the proceedings. Ms Peters says her remorse is reflected by the fact that she has not engaged in any further breaches since March 2025.

45    Whilst I accept that Ms Peters has encountered difficulties in her life, I am not satisfied that she has expressed any genuine remorse. My assessment is that Ms Peters did seek to apportion some element of responsibility to Ms Maloney during the hearing that led to the Liability Judgment. There is no evidence that she has expressed any apology to Ms Hardes, the family of Mr Hugill, the Commissioner or to taxpayers. The impression I have formed based on my review of the materials and her presentation in Court is that Ms Peters is struggling with the personal and professional consequences of having been caught out, is naturally embarrassed by having found herself in the position that she is in, and wishes to minimise the penalty that may be imposed on her. The measure of her remorse may also be assessed by her limited co-operation with the relevant investigators and the Commissioner. I am not satisfied that Ms Peters should be afforded any leniency on account of genuine remorse, but I have taken her submissions into account in determining the appropriate penalty.

3.9    Ms Peters’ personal and financial circumstances

46    Ms Peters submits that the appropriate penalty should be determined having regard to her limited financial means. Ms Peters submits that she:

(a)    is unemployed;

(b)    receives approximately $895 per week;

(c)    pays rent of approximately $620 per week;

(d)    has no savings or significant assets;

(e)    after payment of rent, the Respondent has limited funds available to meet ordinary living expenses; and

(f)    suffers from anxiety.

47    Ms Peters submits that a penalty in the range advanced by the Commissioner would impose severe financial hardship and would be beyond her realistic capacity to pay.

48    Ms Peters has filed no evidence in support of her submissions. Nor has she provided any full account of her assets. The Commissioner did not object to these submissions being received. As Ms Peters was self-represented, I have borne in mind that I should not apply an unduly technical approach and have given her submissions some weight. However, the weight I can give to these matters is necessarily limited due to the absence of evidence.

49    A contravener’s financial position is a relevant consideration in determining whether a penalty will achieve specific deterrence, but a party’s capacity to pay must be weighed against the need to impose a sum which members of the public will recognise as significant and reflecting the seriousness of the contravention: ACCC v Leahy Petroleum Pty Ltd (No 3) [2005] FCA 265 at [39] (Goldberg J). The incapacity of a contravener to pay a penalty, including the possibility of insolvency, must not have the effect of reducing the penalty below the amount necessary to secure general deterrence: ACCC v High Adventure Pty Ltd [2005] FCAFC 247 at [11] (Heerey, Finkelstein and Allsop JJ).

3.10    Maximum penalty, course of conduct and totality

50    The maximum penalty for a contravention of s 73ZN(10) is 1,000 penalty units. At the time of the contravening conduct (January to March 2025) a penalty unit was worth $330.00. Accordingly, the maximum penalty for a single contravention is $330,000. The maximum penalty in s 73ZN(10) is indicative of the Parliament’s intention as to the seriousness of a contravention of a banning order. Section 73ZN(10) (at the time of the contravening conduct) had the highest maximum of any civil penalty provision in the NDIS Act, and was double the next nearest maximum civil penalty under that Act.

51    Ms Peters contravened the Banning Order in respect of both Mr Hugill and Mrs Hardes. The Commissioner submits that this amounts to two contraventions. I accept the Commissioner’s contention that the applicable statutory maximum penalty is therefore $660,000.

52    While contraventions arising from separate acts ordinarily attract separate penalties, where there is an inter-relationship between the factual and legal matters of two or more contraventions, the Court may consider whether it is appropriate to group them as a single course of conduct, so as to avoid double punishment in respect of the relevant acts or omissions that comprise the multiple contraventions.

53    By reason of s 85(1) of the Regulatory Powers Act, the Court may make a single civil penalty order for multiple contraventions, if those 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.

54    The Commissioner submitted that s 85(1) was applicable to the two contraventions by Ms Peters in this case, and, therefore, it is appropriate that the Court order a single civil penalty rather than individual penalties for each contravention. I accept the Commissioner’s submissions in this respect and will impose a single penalty.

55    In determining the appropriate penalty, the Court must also generally have regard to the “totality” principle, as a final consideration so as to ensure the total penalty imposed is just and appropriate and in proportion to the contravening conduct considered as a whole.

3.11    Conclusion on civil penalty

56    The Commissioner sought a penalty in the range of $160,000 to $230,000. Ms Peters submitted that a penalty should be imposed for a substantially lower amount.

57    I have taken into account each of the considerations addressed above including Ms Peters’ submissions as to her limited capacity to pay and her personal circumstances.

58    Notwithstanding Ms Peters’ submissions to the contrary, I am satisfied that a penalty should be imposed in the range sought by the Commissioner and that the sum should be fixed at $180,000.

59    I consider a penalty in this amount to reflect the need for general deterrence and to secure compliance with the regime enacted under the NDIS Act, and reflects that Parliament had at the time made it clear that a breach of banning orders was the type of civil wrong that should attract the highest penalties for contraventions of the NDIS Act. In arriving at this conclusion, I have taken into account Ms Peters’ appalling, knowing and deliberate conduct. I have also taken into account the limited nature of the explanations she has given and the personal circumstances to which she refers.

4.    DECLARATORY RELIEF

60    The NDIS Act does not require a declaration of a contravention to be made. I accept (as the Commissioner submitted) that the Court has a wide discretionary power to make declarations under s 21(1) of the Federal Court of Australia Act 1976 (Cth).

61    Before granting declaratory relief, the Court needs to be satisfied that the declaration quells a real (not hypothetical or theoretical) controversy between the parties. It has been held that declarations relating to contraventions of legislative provisions are likely to be appropriate where they serve to record the Court’s disapproval of the contravening conduct, vindicate the claim that the respondent contravened the provisions, assist a regulator to carry out its duties and deter other persons from contravening the provisions. The discretion extends to making a declaration at the application of a regulator to encourage compliance with the relevant statute that the regulator has the statutory responsibility to administer. It is also relevant to consider if the declaration will have utility, whether the proceedings involve a matter of public interest and whether the circumstances require the Court to express its disapproval of the contravening conduct.

62    However, it has also been observed that where the Court has made findings as to contraventions and is imposing pecuniary penalties, there is little (if any) utility to be served by a declaration: see eg Registered Organisations Commissioner v Australian Workers' Union (No 2) [2020] FCA 1148 at [117]-[124] (Snaden J); Fair Work Ombudsman v Construction, Forestry and Maritime Employees Union (Beams Lift Case) (No 2) [2024] FCA 779 at [31]-[34] (Snaden J); Australian Securities and Investments Commission v National Australia Bank Limited [2020] FCA 1494 at [109]-[113] (Lee J) (and the cases there cited).

63    In the present case, I have already published reasons in the Liability Judgment, which contain significant findings adverse to Ms Peters and which seek to mark out the essential aspects of the NDIS Act. In that Liability Judgment, I made clear findings as to the contraventions that Ms Peters had engaged in. I have done so again in these reasons. Further, in these reasons I have clearly stated the Court’s disapproval of Ms Peters’ conduct and identified the matters which I consider to be significant to ensuring compliance with the NDIS Act. In those circumstances, I am not satisfied that there is any utility to be served by exercising my discretion to grant the declaratory relief that the Commissioner seeks. I dismiss the Commissioner’s claim for this relief.

5.    INJUNCTION

64    The Commissioner seeks an injunction restraining the respondent from engaging in conduct that breaches the Banning Order issued on 10 December 2024.

65    By s 73ZQ of the NDIS Act, the provisions of Part 3A of the NDIS Act are enforceable by injunction under Part 7 of the Regulatory Powers Act. Section 121(1)(a) of the Regulatory Powers Act provides as follows:

121     Grant of injunctions

Restraining injunctions

(1)     If a person has engaged, is engaging or is proposing to engage, in conduct in contravention of a provision enforceable under this Part, a relevant court may, on application by an authorised person, grant an injunction:

(a)     restraining the person from engaging in the conduct;

. . .

66    In the Originating Application filed 5 August 2025, the Commissioner sought an injunction that permanently restrained Ms Peters from providing or being involved in the provision of support and services to any NDIS participant. However, the Commissioner no longer pressed an injunction in that form as it accepted that a permanent injunction to that effect was beyond the power conferred by s 121(1) of the Regulatory Powers Act: see, by analogy, ASIC v Cassimatis (No 9) [2018] FCA 385 at [124] (Dowsett J); Mawhinney v ASIC [2022] FCAFC 159 at [23] (Jagot, O'Bryan and Cheeseman JJ). The Commissioner instead sought an injunction in the following terms:

The Respondent is restrained from engaging in conduct which breaches the Banning Order issued to the Respondent by a delegate of the Applicant on 10 December 2024.

67    The Commissioner submitted that Ms Peters had demonstrated that she is willing to engage in conduct in breach of the Banning Order and that the proposed injunction was warranted because it would provide a further specific deterrent to Ms Peters from breaching the Banning Order.

68    I am not satisfied that the injunction sought by the Commissioner should be made.

69    The Banning Order commenced on 1 January 2025 and operates for a period of two years. It thereby ceases to operate on 31 December 2026. That is only some months away. Ms Peters has submitted that she has not breached the Banning Order and has not engaged in any NDIS activities since March 2025. The Commissioner has adduced no evidence to the contrary.

70    I accept that the power to grant an injunction under s 121(1) of the Regulatory Powers Act extends to circumstances where a person has already engaged in conduct in contravention, and is not limited to circumstances where a person is proposing or threatening to engage in a contravention. However, the power involves the exercise of a discretion. In the exercise of that discretion, I accept that it is relevant to consider Ms Peters’ past conduct which was in wanton disregard of the Banning Order, but this is to be balanced against the fact that there is no evidence that she has engaged in any further contravening conduct since March 2025. Further, in view of the fact that there are only a few months left to run before the Banning Order expires, I am not satisfied that any regulatory purpose would be achieved by granting an injunction in the form sought by the Commissioner. If Ms Peters engages in any further breaches of the Banning Order, this may be enforced by the Commissioner in the way it has done in the present proceedings. In those circumstances, I am not satisfied that the injunction sought by the Commissioner should be granted.

6.    COSTS

71    I am satisfied that Ms Peters should pay the Commissioner’s costs as agreed or taxed.

7.    DISPOSITION

72    For the foregoing reasons, I will make orders reflecting these reasons.

Associate:

Dated:    27 August 2026