C2026A00066NDIS Checker

Schedule 3, Part 4

Who a disclosure can be made to, and what a court can order

From 1 July 2027 a disclosure qualifies for protection if it is made to the Agency, the Commission, police, a registered organisation or a professional association, a lawyer, a doctor, a psychologist or a Commonwealth funded advocate, and a court can order compensation, reinstatement and exemplary damages for a detrimental act.

What does the provision require?

The Part expands the routes through which a protected disclosure can be made. A disclosure now qualifies where it is made to the Commissioner, the Agency or key personnel, to a medical practitioner or psychologist for care or counselling, to an Australian legal practitioner for advice or representation, to an official or staff member of a registered organisation or a professional association for advice, to a police officer where the discloser reasonably suspects that an NDIS provider has or may have contravened the Act, or to a Commonwealth funded disability advocate for advice or assistance.

New section 73ZBAA sets out how a claim for protection is dealt with in proceedings: the individual first points to evidence suggesting a reasonable possibility, then the party bringing the proceedings must prove the claim is not made out, the claim is dealt with in separate civil proceedings, the primary proceedings are adjourned, and admissions and evidence in the separate proceedings cannot be used against the individual. Subsection 73ZC(5) puts a similar burden on the respondent in a civil penalty proceeding for a detrimental act, and subsection 73ZC(6) lists what detriment includes, from dismissal and demotion to psychological harm and damage to business or reputation. Section 73ZD is replaced so that, where a court is satisfied that someone has breached, or is about to breach, subsection 73ZC(1) or (2), it may make any order it considers appropriate, including an injunction, compensation for loss or injury, reinstatement and exemplary damages. The Division does not exclude a State or Territory law that can operate concurrently.

Why does it matter to an insurer or a provider?

This is an employment practices and D&O exposure with a wide receiving group. A disclosure to an official of a registered organisation, a doctor or a police officer now qualifies, which means an internal complaint can become protected without the organisation's knowledge. The burden of proof in section 73ZC(5) sits on the respondent once the applicant points to evidence, and exemplary damages are available. For an insurer, the practical questions are whether the insured's whistleblower policy names these routes and whether the D&O and EPL cover responds to a reinstatement or exemplary damages order.

What did the amendment change?

The earlier Division protected a narrower set of disclosures and gave a court a narrower set of remedies. The Act adds the receiving groups, defines Commonwealth funded disability advocate, adds the separate proceedings mechanism, reverses the burden in the way described, expands the meaning of detriment, and replaces the remedy provision.

Suggested evidence

These are the publisher's control suggestions, not statutory requirements. The provision's own requirement is above; an auditor or regulator decides what is sufficient.

  • The whistleblower policy and the disclosure routes it names
  • The training record for managers and key personnel
  • The complaint and investigation file, with the protected disclosure assessment
  • The legal advice obtained on a disclosure received through an external route
  • The D&O and employment practices policy wording for reinstatement and exemplary damages

What should be done before the date?

  1. Rewrite the whistleblower policy to name every receiving group
  2. Train key personnel on receiving a disclosure
  3. Check the D&O and EPL cover for reinstatement and exemplary damages
  4. Add a protected disclosure flag to the incident register

What the text does not say

The text does not set a time limit for a claim. It does not define key personnel for this Division. Subsection 73ZA(8) defines a Commonwealth funded disability advocate as an entity, or its staff, that has a funding agreement with the Commonwealth, made under the Disability Services and Inclusion Act 2023, to provide advocacy supports or services; the note adds that a list is published by the Agency, the Commission and the Department.

Where this sits

sections 73ZA to 73ZDAA, amended by items 20 to 27 in Schedule 3, Part 4, Whistleblower protections (items 20 to 27). Read the official text at https://www.legislation.gov.au/C2026A00066/latest/text. The record was read on 21 October 2026.

Not legal advice; does not certify. This page is a reading of the provision in our own words, not a reproduction of it, and not advice on your own facts.

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