LEX 4132
25 February 2025
Mr Bob Buckley
By email: xxxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Mr Buckley,
Freedom of Information Request No. (98) - 24/25 - (3)
Notice of Decision on Access under the Freedom of Information Act 1982 (Cth)
I refer to your email received by the NDIS Quality and Safeguards Commission (
NDIS Commission) on 31
January 2025, in which you requested access to documents under the
Freedom of Information Act 1982 (Cth)
(
FOI Act).
Specifically, your request sought access to:
“Copies of all policies, policy guidance, practice guides, tools, templates and grant funded materials
(i.e. information) produced since September 2022 for the purpose of lifting the capability of Behaviour
Support Providers and improving the quality of NDIS plans that include a behaviour support component,
along with copies of relevant project and communication plans for each product (where they exist), plus
copies of reports showing relevant outcome measures achieved as a result."
Administration of your request
On 31 January 2025, the NDIS Commission’s FOI team acknowledged your request by email.
On the same date, you confirmed that you do not seek personal info of staff below SES level and consent to
the removal of duplicate documents.
I am an officer authorised under section 23 of the FOI Act to make decisions regarding access to documents
and this letter sets out my reasons for decision on access to documents in scope of your request.
Decision
The NDIS Commission has located
42 documents, comprising of
641 pages, that fall within the scope of your
freedom of information (
FOI) request.
I have decided to grant
full access to thirty-four (34) documents and
partial access to seven (7) documents
with redactions under section 22 of the FOI Act, and
refused access to one (1) document under section
47E(d) of the FOI Act.
Twenty-seven (27) documents consisting of 513 pages were identified as publicly available on the NDIS
Commission website which can be accessed v
ia Search Site | NDIS Quality and Safeguards Commission.
These are included in the document pack and listed in the schedule of documents at the end of this
document.
I have also decided to refuse your request for the portion of scope “
improving the quality of NDIS plans that
include a behaviour support component” in accordance with section 24A(1)(b)(ii) as the documents do not
exist, despite reasonable searches being undertaken.
The table at
Attachment A summarises my decision as it applies to the documents covered by your request.
In assessing your request, I have considered documents created up to the date on which your request was
received. Any documents created after this date falls outside the scope of your request and have not been
included in this decision.
Reasons for Decision
In reaching my decision I have relied on the following material:
• the terms of your FOI request
• the FOI Act (in particular, sections 22, 24A and s47E(d))
• the results of searches undertaken by relevant NDIS Commission staff
• the types of information and documents that are in the NDIS Commission’s possession;
• the content of the documents that fall within the scope of your request; and
• the guidelines issued by the Australian Information Commissioner under section 93A of the FOI Act
(FOI Guidelines).
Section 24A – Requests may be refused if documents cannot be located, do not exist or have not
been received.
Under s 24A(1) of the FOI Act, an agency or minister may refuse a request if it has taken 'all
reasonable steps' to find the document requested, and is satisfied that the document cannot be
found or does not exist. I am satisfied that both elements apply to your request.
Searches by the NDIS Commission’s Practice Quality branch did not locate any documents that match the
terms of your request “
improving the quality of NDIS plans that include a behaviour support component”. I
am refusing access to the requested documents pertaining to this specific part of your request as the NDIS
Commission does not hold the documents you have requested. I am satisfied that all reasonable steps have
been taken to locate the requested documents and that they do not exist.
Section 47E(d) – Documents affecting certain operations of agencies
Section 47E conditionally exempts documents where disclosure would, or could reasonably be expected to,
prejudice or have a substantial adverse effect on certain identified agency operations. In order to apply the
exemption at s47E(d), I must be satisfied that disclosure of the documents would have a “substantial adverse
effect” on the efficiency of the operations of the NDIS Commission.
Document 42 contains information that is conditionally exempt under section 47E(d) of the FOI Act.
In the decision of the IC in ‘YU’ and Bureau of Meteorology (Freedom of Information) [2021] AICmr 75 (29
November 2021) (YU), the IC refers to case law that highlights the importance of agencies being able to
undertake confidential investigative processes and the practical need for confidentiality to extend beyond an
investigation in circumstances where disclosure would likely undermine participation in future investigative
processes by agency staff and/or members of the public. I consider the findings of the IC relevant to my
decision in respect of your request.
The requested document contains guidance and process material for the NDIS commission staff
concerning the behaviour support quality and management of a process administered by the NDIS
Commission, and therefore is relevant to the conduct of the Commission’s operations. I consider that
providing this ‘internal use by the Commission staff only’ material to you, which is not publicly available,
would negatively affect the conduct of the Commission’s operations because it may allow individuals to
circumvent elements of the Commission’s processes for their own advantage (i.e complaints about their
wrongdoings will not be investigated or escalated through knowing the details of risk assessment thresholds
and escalation points) and provide insight to malicious users, such as unsatisfied NDIS participants, provider
staff members and providers who engage in unlawful behaviours about navigating the Commission’s internal
systems and assessment methods. While I have no reason to believe you would misuse the exempt material
in this way, the FOI Act does not control or restrict use or dissemination of the information once released, so
I must consider actions any member of the public might take if the information is in the public domain.
I am therefore satisfied that it is appropriate to exempt this material under section 47E(d) of the FOI Act. As
section 47E is a conditional exemption, I have also considered the application of the public interest test
below.
Public interest test –47E(d)
Section 11A(5) of the FOI Act provides:
The agency or Minister must give the person access to the document if it is conditionally exempt at a
particular time unless (in the circumstances) access to the document at that time would, on balance,
be contrary to the public interest.
In applying the public interest test, I am required to have regard to the FOI guidelines and the following
factors listed in section 11B(3) of the FOI Act, which relate to whether the granting of access would:
(a) promote the objects of this Act (including all the matters set out in sections 3 and 3A);
(b) inform debate on a matter of public importance;
(c) promote effective oversight of public expenditure;
(d) allow a person to access his or her own personal information.
The objects of the FOI Act include providing for a right of access to information in the possession of
Commonwealth government agencies and promoting accountability and transparency in government
decision making. In this case, the release of the documents supports the objects of the FOI Act by
making available information which concerns government agency decision making.
Given the nature of the document, I do consider that access to these documents would overall inform
debate on a matter of public importance and promote effect effective oversight of public expenditure.
The Australian Information Commissioner’s FOI Guidelines also set out a non-exhaustive list of factors
weighing against disclosure. These factors relate to harm that may result from the disclosure of the
documents in certain circumstances. In reaching my decision, I consider that the factors weighing against
disclosure are that disclosure could be reasonably expected to:
In this case, disclosure of document 42 would release sensitive information of recommendations that have
not been fully implemented, which could result in a substantial adverse effect on the proper and efficient
conduct of the operations of an agency.
Disclosure of this document are conditionally exempt under section 47E(d) of the FOI Act could reasonably
be expected to prejudice the internal processing functions of the agency and their associated safeguarding
practices and, as a result, the operations of the NDIS Commission. I consider there to be a strong public
interest in ensuring that the ability of the Commission to conduct its safeguarding functions is not
compromised or prejudiced in any way. Disclosure of internal assessment information could reasonably be
expected to inhibit the conduct of future safeguarding work by the Commission and/or the organisations.
Based on these factors, I have decided that the public interest is weighted more heavily against disclosure
and that giving access to the conditionally exempt material would, on balance, be contrary to the public
interest.
Deletion of exempt material or irrelevant material from documents and provide access to edited copies
Section 22 of the FOI Act requires an agency to provide access to an edited version of a document where it is
reasonably practicable to edit the document to remove exempt material or material that is irrelevant to the
scope of a request.
On this basis, I have prepared the documents for release by removing the exempt material in accordance
with section 22 of the FOI Act. I can confirm that the material redacted under this section is confined to the
name of the staff members found within the documents. The material that has been edited for release is
marked within the documents as well as on the attached
Schedule of Documents.
FOI Disclosure Log
In accordance with the requirements of section 11C of the FOI Act, the Commission is required to
publish details of information released under the FOI Act, subject to certain exemptions.
I am satisfied that none of the exceptions at section 11C apply and that details of the documents
disclosed to you as part of your FOI request will be published on the Commission's FOI disclosure log.
For further information about the Commission’s FOI disclosure log please refer to our website.
YOUR REVIEW RIGHTS
If you are dissatisfied with my decision, you may apply for internal review or Information
Commissioner review of the decision. We encourage you to seek internal review as a first step as it
may provide a more rapid resolution of your concerns.
Internal review
Under section 54 of the FOI Act, you may apply in writing to NDIS Commission for an internal review
of my decision by another NDIS Commission officer. The internal review application must be made
within 30 days of the date of this letter. The request should be addressed to
xxx@xxxxxxxxxxxxxx.xxx.xx. Where possible please attach reasons why you believe review of the
decision is necessary.
Information Commissioner review
Under section 54L of the FOI Act, you may apply to the Australian Information Commissioner to
review my decision. An application for review by the Information Commissioner must be made in
writing within 60 days of the date of this letter, and be lodged in one of the following ways:
Online: Using the OAIC smartform
Email: xxxxx@xxxx.xxx.xx
Post: GPO Box 5288 Sydney NSW 2001
More information about Information Commissioner review is available on the website of the Office of the
Australian Information Commissioner.
FOI Complaints If you are unhappy with the way we have handled your FOI request, please let us know what we could have
done better. We may be able to rectify the problem. If you are not satisfied with our response, you can make
a complaint to the Australian Information Commissioner. A complaint to the
Information Commissioner must be made in writing. Complaints can be lodged in one of the following ways:
Online: Using the OAIC smartform
Email: xxxxx@xxxx.xxx.xx
Post: GPO Box 5288 Sydney 2001
More information about complaints is available on the Office of the Australian Information
Commissioner website.
If you are not sure whether to lodge an Information Commissioner review or an Information
Commissioner complaint, the website of the Office of the Australian Information Commissioner has
more information.
Contact
If you wish to discuss my decision, please contact the FOI Team on email a
t xxx@xxxxxxxxxxxxxx.xxx.xx Yours sincerely,
Deepika
Position No: 50091780
Assistant Director – Freedom of Information
NDIS Quality and Safeguards Commission
25 February 2025
FOI Request No. (98) - 24/25 - (3)
FOI Decision
SCHEDULE OF DOCUMENTS
Doc
Pages
Description
Decision / Exemption
No.
1. 1
1-19
Document 1
Full Release
2. 2
20-29
Document 2
Partial Access - Sections 22
3. 3
30-59
Document 3
Partial Access - Sections 22
4. 4
60-69
Document 4
Partial Access - Sections 22
5. 5
69-72
Document 5
Partial Access - Sections 22
6. 6
73-78
Document 6
Full Release
7. 7
79-82
Document 7
Partial Access - Sections 22
8. 83
Document 8
Full Release
9. 84-85
Document 9
Partial Access - Sections 22
10. 86
Document 10
Full Release
11. 87-88
Document 11
Full Release
12. 89
Document 12
Full Release
13. 90
Document 13
Full Release
14. 91-113
Document 14
Partial Access - Sections 22
15. 114-122
Document 15
Full Release
NDIS Commission Policy
16. 123-129
Document 16
Full Release
Comprehensive Behaviour Support Plan Checklist
17. 130-144
Document 17
Full Release
https://www.ndiscommission.gov.au/rules-and-
standards/behaviour-support-and-restrictive-
practices/how-develop-behaviour-support-
plans#paragraph-id-9385
18. 145-160
Document 18
Full Release
What is positive behaviour support? An Easy Read fact
sheet.
19. 161-175
Document 19
Full Release
Understanding your rights. An Easy Read fact sheet.
20. 176-190
Document 20
Full Release
How to choose a specialist behaviour support provider.
An Easy Read fact sheet.
21. 191-211
Document 21
Full Release
What to expect from your specialist behaviour support
provider. An Easy Read fact sheet.
22. 212-223
Document 22
Full Release
What to do if there is a problem with your specialist
behaviour support provider. An Easy Read fact sheet.
23. 224-242
Document 23
Full Release
What are high-risk practices?
24. 243-256
Document 24
Full Release
Evidence Informed Practice Guide
25. 257-262
Document 25
Full Release
Interim Behaviour Support Plan Checklist
26. 263-275
Document 26
Full Release
How to develop behaviour support plans | NDIS Quality
and Safeguards Commission
27. 276-459
Document 27
Full Release
ndiscommission.gov.au/sites/default/files/2024-
10/20241018_AR_accessible.pdf
28. 460-462
Document 28
Full Release
Participant fact sheet 1: What is positive behaviour
support
29. 463-465
Document 29
Full Release
Participant fact sheet 2 - Understanding your rights
30. 466-468
Document 30
Full Release
Participant fact sheet 3 - Choosing a specialist
behaviour support provider
31. 469-472
Document 31
Full Release
Participant fact sheet 4 - What to expect from your
specialist behaviour support provider
32. 473-474
Document 32
Full Release
Participant Fact sheet 5 - What to do if you are not
happy with your specialist behaviour support provider
33. 475-476
Document 33
Full Release
Document template - portrait layout
34. 477-478
Document 34
Full Release
Document template - portrait layout
35. 479-481
Document 35
Full Release
Document template - portrait layout
36. 482-492
Document 36
Full Release
Position Statement –Practices that present high risk of
harm to NDIS participants – Updated July 2023
37. 493-540
Document 37
Full Release
Positive Behaviour Support Capability Framework
38. 541-564
Document 38
Full Release
Quality support for children in the NDIS
39. 565-568
Document 39
Full Release
https://www.ndiscommission.gov.au/rules-and-
standards/behaviour-support-and-restrictive-
practices/behaviour-support-resources#paragraph-id-
8599
40. 569-590
Document 40
Full Release
Regulated Restrictive Practices - Safe Transportation
Guide
41. 591-626
Document 41
Full Release
Report template
42. 15
Document 42 – BSP – QE11 Recommendations
Full Refusal – Section 47E(d)
Communications Plan
