A subpoena/notice to produce/summons to produce is a legal document issued by a court or tribunal at the request of a party to proceedings to compel a person to produce documents or give evidence at a hearing or trial.
The term 'subpoena' will be used here to cover all these types of documents.
Limits on the information the NDIS Commission can provide
Section 67G of the NDIS Act provides, in summary, that a person cannot, except for the purposes of the National Disability Insurance Scheme Act 2013 (NDIS Act) or the Royal Commissions Act 1902 (Royal Commissions Act), be required to produce any document to a court, tribunal, authority or person that has power to require the production of documents or the answering of questions.
This means that generally the NDIS Commission, its Commissioner and any of the Commission’s staff will be unable to comply with a subpoena unless:
- the production would be for the purposes of the NDIS Act;
- the production would be for the purposes of the Royal Commissions Act; or
- the production of the information is compelled under an order issued pursuant to some limited legislative provisions (for example Location Orders and Commonwealth Information Orders issued pursuant to sections 67M and 67N of the Family Law Act 1975 (Cth)).
If the NDIS Commission, its Commissioner or any member of its staff is served with a subpoena and we do not consider that the subpoena can be lawfully complied with, the NDIS Commission will contact the lawyer or organisation who asked for the subpoena to be issued, ask for it be withdrawn and discuss alternative ways that some or all of the information sought may be able to be disclosed.
Who to contact
If you are considering having a subpoena issued to the NDIS Commission, we encourage you to contact the Legal Services Branch of the Commission at legal@ndiscommission.gov.au before doing so.
This will allow the NDIS Commission to discuss this with you and to consider whether there is another way permitted by the NDIS Act for the information to be disclosed or to discuss if the information can lawfully be disclosed under the subpoena.
Address for service
If you consider that one of the above exceptions to section 67G of the NDIS Act applies, or there is another legal provision that may override section 67G such that the NDIS Commission would be able to comply with the subpoena, the correct address for service is:
Legal Services Branch
NDIS Quality and Safeguards Commission
PO Box 210
Penrith NSW 2750
However, a subpoena to give evidence should be addressed to the individual who will be required to give evidence.
We prefer that court orders are served by email to legal@ndiscommission.gov.au
Cost and how to pay
We ask that you do not provide cash when providing conduct money to the NDIS Commission. Our preferred method of accepting conduct money is by deposit to a NDIS Commission bank account. Details will be provided when you email legal@ndiscommission.gov.au
The NDIS Commission requests $75.00 plus GST in conduct money in order to process a subpoena. This covers our costs to access, collate and produce the requested documents to the court or tribunal. There may be extra charges depending on the complexity of the court order.
Alternative means of disclosure
If section 67G of the NDIS Act precludes the NDIS Commission complying with the subpoena, the Commission might be able to disclose the requested information in another way.
In particular, if the information is what the NDIS Act calls ‘protected Commission information’ you should consider whether you could get the express consent of the individual or other legal entity that the information is about to access the information. You can find out more about ’protected Commission information’ in section 9 and sections 67A to 67F of the NDIS Act 2013
You can also refer to the FOI Act for other ways the NDIS Commission can share information.