By bobb |

Anne Connolly

The head of the government watchdog for the NDIS, Tracy Mackey, swore and said she might have to resign after she discovered she had mistakenly told the ABC the regulator had shut down a program where children with disabilities were abused, court documents allege.

Key points:

  • A deputy commissioner is suing the NDIS Quality and Safeguards Commission and Commissioner Tracy Mackey after being suspended from his role
  • Dr Jeffrey Chan was stood down after Four Corners revealed children were being unlawfully restrained in an NDIS-funded program
  • In court documents, Dr Chan alleges that Ms Mackey said it was better that he stand aside as " this is better than if the minister decides to take action"

Despite this, Ms Mackey, the NDIS Quality and Safeguards Commissioner, subsequently asked her deputy, Jeffrey Chan, to stand aside instead. He was later suspended, leading him to sue the commission and Ms Mackey in the Federal Court, saying he has been made a scapegoat and seeking compensation for the harm he has suffered.

For the past two weeks, the commission has tried to suppress the release of details in the case but Justice Yaseen Shariff ruled on Friday that the court documents should be made public, saying the matter is one that quintessentially calls for an open and public hearing.

He also ruled that Dr Chan's suspension should be temporarily lifted and he should be allowed to return to work while the case proceeds.

The workplace dispute between Dr Chan, the commission and Ms Mackey has laid bare the fallout from an ABC Four Corners program broadcast this year that showed CCTV vision of a teenager with an intellectual disability and autism being restrained on the ground face-down by multiple workers at Irabina Autism Services in Melbourne.

The Four Corners investigation revealed that other children in Irabina's Severe Behaviour Program were also subject to the unlawful practice, which was labelled a human rights breach under Victoria's Human Rights Act.

Families and workers told how children were secluded in small, windowless rooms and were observed via one-way mirrors as part of a controversial therapy imported from the US.

As part of the program, children were filmed when they had an "uncontrolled behaviour" and were restrained by workers wearing protective gear. Irabina Autism Services reported a turnover of more than $14 million in 2020-21 with the vast majority coming from NDIS funding.

During an interview with Four Corners, Ms Mackey was asked why the regulator hadn't banned executives or fined Irabina Autism Services when the human rights breaches were discovered in 2020.

GRAPHIC CONTENT: Vision aired by Four Corners shows a teenage boy being restrained by staff at Irabina Autism Services.

Ms Mackey told the ABC that the commission had acted by "shutting down that particular service and ensuring that that program was not operating anymore".

However, the day after the program aired, a speech therapist came forward to the ABC, saying the program was still operating in 2022, with children secluded in small rooms and observed through one-way mirrors.

NDIS Minister Bill Shorten, when asked for his reaction the following day on ABC Radio, said he was "perplexed" because "I am told that there was action taken at the time to shut the program down".

According to Dr Chan's affidavit, the information caused "a flurry of activity in trying to address the minister's concerns".

In his evidence to the Federal Court, Dr Chan says he consulted colleagues and discovered that the program had in fact remained open and that Ms Mackey had already been supplied this information in a briefing document prepared for the Four Corners interview. 

Dr Chan's affidavit alleges that when he brought this to Ms Mackey's attention she said "f***" and "that means that I lied on national television".

Dr Chan alleges that Ms Mackey then told him that the director of behaviour supports in Victoria had repeatedly "advised me that we had shut down the program".

Dr Chan says that he told Ms Mackey "that is not what the evidence before me shows".

A man in a suit and tie smiles and looks into camera while posing for a portrait.
A Federal Court judge has ordered Dr Chan be allowed to return to work at the NDIS Quality and Safeguards Commission while the legal case proceeds.(Supplied)

He alleges that Ms Mackey then said "I may have to submit my resignation".

However, two hours after this conversation was alleged to have occurred, it was Dr Chan who was asked to stand down, with the NDIS commissioner allegedly telling him that "the minister is not happy" and "it is difficult to work with the minister [Bill Shorten]".

Dr Chan alleges Ms Mackey said "I think it is best that you stand aside as this is better than if the minister decides to take action" and that if the minister did take action "then it will be worse for us".

Ms Mackey denies Dr Chan's version of events as set out in his affidavit. In an email to staff at the time, she said Dr Chan was stood down because she had announced an independent review into Irabina and she wanted to "ensure the integrity of the inquiry".

The review will examine what action the regulator took over Irabina and whether it was "appropriate, proportionate and consistent with the quality and safeguarding functions and powers of the commission". 

YOUTUBEWatch Four Corners' full investigation into the NDIS.

Dr Chan, an adjunct professor with University of Queensland, had no formal responsibility for the supervision or oversight of Irabina prior to about July 2022.

In his affidavit, he says he had no input into the preparation of Ms Mackey's Four Corners interview.

He was unaware that CCTV footage of a teenager being restrained existed and was shocked by the "distressing footage of abusive practices towards children".

Lawyers for the NDIS Quality and Safeguards Commission and Ms Mackey said Dr Chan had learned of more unauthorised restraints used by Irabina in late 2022 when he did have a responsibility to report to the commissioner.

Dr Chan says he told Ms Mackey about these and promised to keep her updated but his subsequent report on the matter was not sent to Ms Mackey's personal email address and she did not see it.

His failure to escalate the continuing problems with Irabina is the basis for Dr Chan's suspension, with the NDIS Commission saying it could constitute a breach of the Australian Public Service Code of Conduct.

However, Dr Chan's lawyer said his suspension was "an exercise in deflection and an attempt to make him a scapegoat" for the commission's failure to take earlier action to respond to the concerns that had been raised about Irabina.

"He was suspended in circumstances where issues relating to Irabina had been present since September 2019, long before Dr Chan's limited involvement in mid to late 2022," his lawyer Mia Pantechis from Maurice Blackburn said.

No other staff with responsibility for monitoring Irabina were suspended.

Documents, which the NDIS commission unsuccessfully asked the court to redact, show that the regulator had many dealings with Irabina for its use of unauthorised restraints on clients.

Despite the commission issuing compliance notices and engaging in education programs over the years, emails released as part of the court case show Irabina was still found to be "using physical restraints that were not proportionate to the risk presented" as late as November 2022.

The ABC asked the NDIS Commission a number of questions and was pointed to a statement saying "it doesn't comment on individual staffing matters" but said "much of the information filed by (Dr Chan) is disputed by the commission".

Ms Mackey also declined to comment on the proceedings.

Bill Shorten at a press conference
Bill Shorten says he wants to see "a complete culture change" at the NDIS Quality and Safeguards Commission.(ABC News: Harriet Tatham)

NDIS Minister Bill Shorten said it would be inappropriate to comment on an ongoing court matter, adding: "I have made it patently clear my expectation is that there needs to be a complete culture change at the commission and proactive participant safeguarding must be the highest priority."

Mr Shorten issued directions to Ms Mackey in October requiring her to report to him more regularly about actions taken by the regulator.

Since the Four Corners program aired, the NDIS Commission has banned four service providers and has issued more than $1 million in fines to 19 other providers over the use of restrictive practices.

The independent review into events at Irabina was commissioned in September with former judge Jennifer Boland due to report on December 31, with an option to extend that deadline.

The NDIS Quality and Safeguards Commission did not respond to the ABC's query about whether the review findings would be made public.