Disability Act 2006
Authorised Version incorporating amendments as at 1 July 2021
Section Page Part 1—Preliminary 1 Purposes Commencement Definitions 3A Disability service provider taken to be providing residential services Part 2—Objectives and principles 26 4 Objectives of Act 26 5 Principles 26 6 Persons with an intellectual disability 31 7 Provision of advice, notification or information under this Act 33 Part 3—Administration 35 Division 1—The Secretary 35 8 Role and functions of the Secretary 35 9 Power of Secretary to provide funds 36 10 Power of Secretary to enter into contracts 37 10A Secretary's powers in relation to land 37 10B Committee of management 38 10C Record of dealings 38 10D Secretary's powers in relation to intellectual property 40 Division 2—The Victorian Disability Advisory Council 40 11 Victorian Disability Advisory Council 40 12 Functions of the Victorian Disability Advisory Council 41 13 Provisions applying to the Victorian Disability Advisory Council 42 Division 3—The Disability Services Commissioner 44 14 Disability Services Commissioner 44 15 Acting Disability Services Commissioner 44 Functions of the Disability Services Commissioner Powers of the Disability Services Commissioner Provision of staff and contractors Annual report 19A Protection from liability for Commissioner Division 4—The Disability Services Board 53 20 Constitution of the Disability Services Board 53 21 Procedure of the Disability Services Board 55 22 Functions of the Disability Services Board 56 Division 5—The Senior Practitioner 57 23 The Senior Practitioner 57 24 Functions of the Senior Practitioner 57 25 Power of Senior Practitioner to delegate 59 26 Provision of staff and contractors 59 27 Special powers of the Senior Practitioner 60 Division 6—Community visitors 63 Community visitors General provisions as to community visitors Functions of a community visitor in respect of premises where residential services are provided 30A Functions of a community visitor in respect of NDIS dwellings Certain persons deemed to be community visitors Community Visitors Board Matter may be referred Reports by community visitors Annual report of community visitors Secrecy provision Part 4—Disability services 74 Division 1—General provisions 74 State Disability Plan Disability Action Plans Information systems and disclosure, use and transfer of information 39A Disclosure of information about worker screening Application for registration as a disability service provider Registration Renewal of registration Revocation of registration Notice before refusal or revocation Application for review 46 Register of disability service providers 89 47 Disability service provider to notify changes 89 48 Certain persons or bodies deemed to be registered or may be registered as disability service providers 90 48A Secretary may exempt disability service providers from requirements 91 Division 2—Accessing disability services 91 49 Request for disability services 91 50 Request to Secretary for decision as to disability 92 51 Effect of decision of Secretary 94 Division 3—Planning 94 52 Guiding principles for planning 94 53 Planning 95 54 Support plan 95 55 Planning for persons with an intellectual disability 96 Part 5—Residential services 97 Division 1—General provisions 97 56 Purpose and application of Part 97 57 Residential statement 98 58 Duties of disability service provider providing residential services 100 59 Duties of residents 102 60 Entry to a resident's room 103 61 Manner of entry 105 62 Offences relating to interference with rights 105 Division 2—Group homes 106 63 Application of Division 106 64 Declaration of residential service as a group home 106 65 Residential charge 106 66 Notice of increase in residential charge 107 67 Limit on payment in advance 107 68 Method of payment 107 69 Receipts for payment 108 70 Residential charge must be reduced if service items are reduced 109 71 Disputes relating to notice of increase in residential charge 110 72 What can VCAT order on an application under section 71? 111 72A VCAT must dismiss certain applications 113 73 Payment of increased amount pending VCAT decision 116 74 Notice of temporary relocation 117 Termination of residency Notice to vacate by disability service provider Effect of notice to vacate Notice of no effect What if 2 or more notices can be given? Notice of intention to vacate by resident Withdrawal of notice Application to VCAT for review of notice to vacate Application to VCAT for possession order Possession orders Issue of warrant of possession 85A Extension of time for warrant to be executed 85B Warrant of possession 85C Lapsing of possession order and lapsing or cancellation of warrant of possession 85D Execution of warrant Part 6—Rights and accountability 132 Division 1—Provision of information 132 89 Disability service provider must provide information 132 Division 2—Provisions relating to the management of money 133 90 Management of money 133 91 Residents' Trust Fund 133 92 Money to be paid into the Residents' Trust Fund by the Secretary 134 93 Management of money of a resident 134 94 Investment of money 137 95 Limit on amount held 137 96 Trust money must be paid when person leaves 137 Division 3—Standards and monitoring of performance 138 97 Minister must determine standards 138 98 Secretary to specify performance measures and monitor performance 139 99 Power of Secretary to give directions 140 100 Further powers of Secretary 141 Division 4—Appointment of administrator 141 101 Displacement of other laws 141 102 Appointment of administrator 142 103 Additional provisions if disability service provider is providing residential services 145 Division 5—Complaints to disability service providers 148 103A Application of Division and references 148 104 Internal process for complaints 148 105 Report on complaints 148 106 Duty to take all reasonable steps to prevent adverse effects 149 Division 5A—Complaints to regulated service providers 149 106AA Application of Division and references 149 106A Internal process of regulated service provider for complaints 150 106B Report on complaints 150 106C Duty to take all reasonable steps to prevent adverse effects 150 Division 6—Complaints to Disability Services Commissioner 150 107 Purpose of Division 150 108 Application of Division 151 108A References to service provider 152 109 What matters can be the subject of a complaint? 152 110 Who may make a complaint? 153 111 How do you make a complaint? 153 112 Withdrawal of complaint 154 113 Preliminary assessment of complaint 155 114 Circumstances in which the Disability Services Commissioner may decline to consider a complaint 156 115 Notice of decision to consider or not to consider complaint 158 116 Consideration of complaint suitable for conciliation 158 117 Dealing with a complaint 160 118 Investigation of a complaint 162 119 Notice of decision and procedures 163 120 Circumstances in which notice is not to be given 165 121 Duty to stop proceedings 165 123 Powers not to be exercised during conciliation 167 Division 6A—Initiated investigations 168 Subdivision 1—Preliminary 168 127 Application of Division and references 168 128A Definition 169 Subdivision 2—Commissioner initiated investigations 169 128B Commissioner initiated investigations 169 128C Notice of initiated investigation 171 128D Decision of Commissioner on initiated investigation 172 128E Decision that action should be taken 173 128F Notice of decision of initiated investigation 174 128G Notice to take action 175 Division 6B—Referral investigations 175 Subdivision 1—Preliminary 175 128GA Application of Division and references 175 128H Definition 176 Subdivision 2—Referral investigations 176 128I Referral investigations 176 128J Publication of referral investigations 178 128K Notice of referral investigation 178 128L Decision of Commissioner on referral investigation 180 128M Decision that action should be taken 180 128N Notice to take action 180 Division 6C—Following up on investigations 181 Subdivision 1—Preliminary 181 128NA Application of Division and references 181 128O Definition 182 Subdivision 2—Reporting on action taken 182 128P Service provider to report on action taken 182 128Q Notice requiring service provider to report 183 Subdivision 3—Follow up investigations 184 128R Follow up investigations 184 128S Notice of follow up investigation 184 128T Decision of Commissioner on follow up investigation 185 128U Notice of decision on follow up investigation 185 Division 7—Visits by community visitors 186 Visiting of residential service or NDIS dwelling Powers of inspection 130A Obligations of service provider and staff Request to see a community visitor—resident in residential service 131A Request to see a community visitor—NDIS residents in NDIS dwelling Record of visits Division 8—Conduct of investigations, investigatory powers and related matters 192 Subdivision 1—Preliminary 192 132AA Application of Division and references 192 132A Definitions 193 Subdivision 2—Authorised officers 194 132B Appointment of authorised officers 132C Identification of authorised officers Subdivision 3—Inspection and search powers 194 132D Production of identification 132E Visit and inspection of premises 132F Powers during visit and inspection 132G Provisions relating to interviews 132H Search warrants 132I Obligations of person executing a warrant on entry 132J Offence to hinder or obstruct person exercising a power under this Subdivision 132K Requirement to give assistance Subdivision 4—Conduct of investigations 201 132L Principles applying to all investigations 132M Assistance to be provided 132N Requirements if there is no hearing 132O Requirements if there is a hearing 132P Investigation hearing notice 132Q Offence to fail to comply with investigation hearing notice 132R Variation or revocation of investigation hearing notice 132S Power to take evidence on oath or affirmation 132T Powers in relation to documents and things Subdivision 5—Offences, protections and other matters relating to investigations 207 132U Compellability of Commissioner or member of staff 207 132V Protection of participants in investigations 207 132W Disclosures made in good faith 207 132X Protection against self-incrimination 207 132Y Legal professional privilege and client legal privilege 208 132Z False statements 208 132ZA Person not to be penalised for making a complaint, providing information 208 Subdivision 6—Disclosure of information 209 132ZB Commissioner may give information to other persons or bodies 209 132ZC Offence to disclose or make a record of information 210 Division 9—General issues applying to investigations 212 132ZCA Application of Division and references 212 132ZD Definition 213 132ZE Reporting on investigations 132ZF Adverse comment on or opinion of service provider in report 132ZG Giving a report to Parliament 132ZH Avoiding unnecessary duplication Part 6A—Appointment of Authorised Program Officers by registered NDIS providers 217 132ZI Registered NDIS provider to appoint Authorised Program Officer 217 132ZJ Registered NDIS provider to seek approval from Senior Practitioner for appointment of Authorised Program Officer 217 132ZK Revocation of approval 218 132ZL Senior Practitioner to notify NDIS Commissioner 218 132ZM Senior Practitioner to notify registered NDIS provider before refusal or revocation 218 132ZN Application for review of appointment decision 219 132ZO Senior Practitioner may issue directions 219 Part 6B—Use of restrictive practices by registered NDIS providers 220 132ZP Purpose and application of Part 220 132ZQ Use of regulated restrictive practice only permitted after authorisation and approval given 220 132ZR Authorisation for use of regulated restrictive practices on NDIS participants with NDIS behaviour support plans 221 132ZS Independent person 223 132ZT Powers of Public Advocate 226 132ZU Information to be provided to Senior Practitioner and NDIS participant 226 132ZV Approval given by Senior Practitioner 227 132ZW Review by VCAT 230 132ZX Authorisation for use of regulated restrictive practices on NDIS participants in emergencies 232 132ZY Directions and other requirements of Senior Practitioner 233 Part 7—Use of restrictive practices by disability service providers 235 Purpose and application of Part Use of restrictive practice only permitted after approval given Approval to use restrictive practices Revocation of approval Notice before refusal or revocation Application for review Authorised Program Officers 139A Use of regulated restrictive practice permitted in certain circumstances Use of regulated restrictive practices Use of regulated restrictive practice must be included in behaviour support plan Review of behaviour support plan by disability service provider Independent person Powers of Public Advocate Requirements for the use of any regulated restrictive practice 145A Approval to use certain regulated restrictive practices Review by VCAT Use of regulated restrictive practices in an emergency 147A Senior Practitioner may issue directions Reports Offence Use of other restrictive practices Part 8—Compulsory treatment 261 Division 1AA—Preliminary 261 150A Restrictions on liberty or freedom of movement 261 Division 1—Residential treatment facilities 261 151 Proclamation of residential treatment facility 261 152 Admission to a residential treatment facility 262 153 Authorised Program Officer must prepare treatment plan 264 154 Annual review of treatment plan 267 155 Application for review of treatment plan 268 156 Leave of absence 269 157 Special leave 270 158 Suspension of leave of absence or special leave 272 159 Security conditions 273 160 Apprehension of resident absent without leave 273 161 Transfer of resident to another residential treatment facility 274 Division 2—Provisions applying to RTO residents 274 162 Extended leave 274 163 Appeals regarding extended leave 275 164 Suspension and revocation of extended leave 277 165 Appeals regarding revocation of extended leave 278 Division 3—Provisions applying to security residents 279 166 Transfer of person with an intellectual disability from a prison 279 167 Preparation of treatment plan 281 168 Annual review of security order and treatment plan 283 169 Application for review of treatment plan 284 175 Termination of a security order 285 176 Death of security resident 286 177 Request for transfer to prison 286 179 Notice of transfer of security resident to another residential treatment facility 287 Division 4—Provisions applying to forensic residents 287 180 Transfer of persons detained in prison under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 287 181 Status of forensic residents 289 182 Leave of absence for forensic resident 289 Division 5—Supervised treatment orders for implementation by disability service providers or registered NDIS providers 289 Purpose of Division Certain disability service providers not required to comply with Division Use of supervised treatment by a disability service provider Approval for disability service provider to use supervised treatment Revocation of approval for disability service provider to use supervised treatment Notice before refusal or revocation of approval for disability service provider to use supervised treatment Application by disability service provider for review Authorised Program Officers appointed by disability service provider 190A Authorised Program Officers appointed by registered NDIS provider Application by a disability service provider or registered NDIS provider for a supervised treatment order Disability service provider or registered NDIS provider may request interim supervised treatment order Supervised treatment order for persons with a disability and NDIS participants Application by the Public Advocate Supervision of supervised treatment order Application for review, variation or revocation 196A Application for determination regarding expiry of supervised treatment order 196B Senior Practitioner to notify NDIS Commissioner about certain matters Application for rehearing Rehearing Senior Practitioner may make assessment order 199A Application for review of assessment order 312 199B Senior Practitioner to notify NDIS Commissioner about assessment orders 313 200 Supervised treatment order to prevail over guardianship order 313 201 Apprehension of person subject to a supervised treatment order absent without approval 313 Division 6—Restrictive practices used by disability service providers implementing treatment plans 315 201A Purpose and application of Division 315 201B Use of restrictive practices 317 201C Authorised Program Officers 318 201D Use of regulated restrictive practices 319 201E Use of regulated restrictive practices must be included in treatment plan 320 201F Reports 322 201FA Senior Practitioner may issue guidelines and directions 323 201G Offence 323 201H Use of other regulated restrictive practices 323 201I Senior Practitioner may issue directions 325 Division 7—Restrictive practices used by registered NDIS providers on NDIS participants subject to supervised treatment orders 326 201J Purpose and application of Division 326 201K Use of restrictive practices only permitted in certain circumstances 327 201L Use of regulated restrictive practice only permitted in certain circumstances 327 201M Authorised Program Officers 329 201N Senior Practitioner may lodge evidence regarding use of regulated restrictive practices 329 201O Senior Practitioner may issue directions 329 Part 9—General provisions 332 202 False and misleading statements 332 203 Defacing documents 332 204 Delegation 332 205 Provision of staff services 333 206 Special powers of Secretary 333 207 Appointment of authorised officers 334 208 Identity cards 335 209 Production of identity card 335 210 Powers of authorised officers 335 211 Offence to give false or misleading information 336 212 Offence to hinder or obstruct authorised officer 336 213 Offence to impersonate authorised officer 337 214 Protection against self-incrimination 337 215 Legal professional privilege or client legal privilege 337 217 Persons who are liable for offences 338 218 Power to bring proceedings 338 219 Evidentiary 338 220 Recapture of person 339 221 Regulations 339 Part 10—Miscellaneous 343 Division 1—Savings and transitional 343 Repeals and Savings Transitional regulations 225A Order specifying land, leases, licences and interests in land to be transferred to Secretary 225B Vesting of land, leases, licences and interests in land in the Secretary 225C Action by Registrar of Titles 225D Taxes 225E Land etc. vests subject to encumbrances Community visitors Behaviour support plans Group homes Division 2—Transitional provisions—Disability Amendment Act 2017 350 232 Definitions 350 233 Pre-existing complaints 350 234 Information provisions 350 Division 3—Transitional provisions—Serious Offenders Act 2018 351 235 Saving of orders continued in effect after commencement by Serious Offenders Act 2018 351 Division 4—Transitional provisions—Disability (National Disability Insurance Scheme Transition) Amendment Act 2019 352 236 Declaration of residential service as a group home 352 237 Behaviour support plans taken to be NDIS behaviour support plans 353 238 Matters concerning persons subject to supervised treatment orders on becoming NDIS participants 354 239 Supervised treatment orders 355 240 Assessment orders 356 242 Long Term Residential Program taken to be residential treatment facility 356 Division 5—Transitional provisions—Worker Screening Act 2020 357 243 Definition 357 244 Transfer of information to Secretary to the Department of Justice and Community Safety 357 245 Continuation of safety screening requirements for notifications about persons providing services to NDIS participants 358 ═══════════════ Endnotes 360 1 General information 360 2 Table of Amendments 362 3 Amendments Not in Operation 368 4 Explanatory details 369
The main purposes of this Act are— (a) to provide a legislative scheme for persons with a disability which affirms and strengthens their rights and responsibilities and which is based on the recognition this requires support across the government sector and within the community; and (b) to provide a mechanism by which NDIS participants' rights are protected in relation to the use of restrictive practices and compulsory treatment.
Section 1 and this section come into operation on the day after the day on which this Act receives the Royal Assent.
Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
If a provision referred to in subsection (2) does not come into operation before 1 July 2007, it comes into operation on that day. S. 3(1) def. of accountability investigation inserted by No. 33/2017 S. 3(1) def. of Australian Industrial Relations Commission inserted by No. 74/2009 S. 3(1) def. of authorised officer substituted by No. 33/2017 S. 3(1) def. of Authorised Program Officer substituted by No. 22/2012
In this Act— accountability investigation means— (a) an investigation under section 118; or (b) an initiated investigation; or (c) a referral investigation in which section 128I(4) applies; or (d) a follow up investigation; Australian Industrial Relations Commission means the body established by section 61 of the Workplace Relations Act 1996 of the Commonwealth, as in force before its repeal; authorised officer— (a) in Part 6, means a person appointed as an authorised officer by the Disability Services Commissioner under Division 8 of Part 6; (b) other than in Part 6, means a person appointed as an authorised officer under section 207; Authorised Program Officer means— (a) in relation to a disability service provider who is the Secretary, a person appointed as an Authorised Program Officer by the Secretary; (b) in relation to any other disability service provider, a person appointed as an Authorised Program Officer by the disability service provider and approved by the Secretary; (c) in relation to a registered NDIS provider, a person appointed as an Authorised Program Officer by the registered NDIS provider and whose appointment is approved by the Senior Practitioner; behaviour support plan means a plan developed for a person with a disability which specifies a range of strategies to be used in supporting the person's behaviour including proactive strategies to build on the person's strengths and increase their life skills; benefit to the person means maximising a person's quality of life and increasing their opportunity for social participation; carer has the same meaning as in the Carers Recognition Act 2012; * * * * * Commissioner for Privacy and Data Protection has the same meaning as Commissioner has in the Privacy and Data Protection Act 2014; S. 3(1) def. of behaviour management plan substituted as behaviour support plan by No. 22/2012 S. 3(1) def. of carer inserted by No. 10/2012 S. 3(1) def. of chemical restraint repealed by No. 19/2019 S. 3(1) def. of Commis- sioner for Privacy and Data Protection inserted by No. 33/2017 S. 3(1) def. of Commission for Children and Young People inserted by No. 33/2017 S. 3(1) def. of community residential unit repealed by No. 22/2012 S. 3(1) def. of compulsory treatment amended by No. 19/2019 S. 3(1) def. of contracted service provider inserted by No. 22/2012 Commission for Children and Young People has the same meaning as Commission has in the Commission for Children and Young People Act 2012; common area means any area in which facilities are provided for the use of residents otherwise than as part of the room which the resident occupies; * * * * * community visitor means a person appointed under section 28; Community Visitors Board means the Board established under section 32; complaint, in Division 5 of Part 6, means a complaint within the meaning of section 109; compulsory treatment means treatment of a person who is— (a) admitted to a residential treatment facility under an order specified in section 152(2); or (b) subject to a supervised treatment order; contracted service provider means a person who has entered into a contract with the Secretary under section 10 to provide services to a person with a disability; CoS supported accommodation client means an older person— (a) who is receiving continuity of supports under the Commonwealth Continuity of Support Programme in respect of specialist services for older people; and (b) who is not an NDIS participant; Department means the Department of Health and Human Services; detain, in Part 8, means a form of restrictive practice used on a person for the purpose of reducing the risk of violence or the significant risk of serious harm the person presents to another person and includes— (a) physically locking a person in any premises; and (b) constantly supervising or escorting a person to prevent the person from exercising freedom of movement; developmental delay means a delay in the development of a child under the age of 6 years which— (a) is attributable to a mental or physical impairment or a combination of mental and physical impairments; and (b) is manifested before the child attains the age of 6 years; and (c) results in substantial functional limitations in one or more of the following areas of major life activity— (i) self-care; S. 3(1) def. of CoS supported accom- modation client inserted by No. 38/2018 S. 3(1) def. of Department amended by No. 19/2019 S. 3(1) def. of detain amended by No. 19/2019 (ii) receptive and expressive language; (iii) cognitive development; (iv) motor development; and (d) reflects the child's need for a combination and sequence of special interdisciplinary, or generic care, treatment or other services which are of extended duration and are individually planned and coordinated; disability in relation to a person means— (a) a sensory, physical or neurological impairment or acquired brain injury or any combination thereof, which— (i) is, or is likely to be, permanent; and (ii) causes a substantially reduced capacity in at least one of the areas of self-care, self-management, mobility or communication; and (iii) requires significant ongoing or long term episodic support; and (iv) is not related to ageing; or (b) an intellectual disability; or (c) a developmental delay; disability service means a service specifically for the support of persons with a disability which is provided by a disability service provider; disability service provider means— (a) the Secretary; or (b) a person or body registered on the register of disability service providers; disability service provider providing residential services includes a disability service provider taken to be providing residential services under section 3A; Disability Services Commissioner means the Disability Services Commissioner appointed under section 14 and includes the Acting Disability Services Commissioner appointed under section 15; Disability Services Board means the Disability Services Board established under section 20; Disability Worker Registration Board means the Disability Worker Registration Board of Victoria established under section 8 of the Disability Service Safeguards Act 2018; exempt service provider means a disability service provider or a regulated service provider— (a) who is prescribed as an exempt service provider; or (b) who is of a class of disability service provider or regulated service provider that is prescribed as exempt service providers; facilities means— (a) land or buildings intended for use for storage space or car parking; S. 3(1) def. of disability service provider providing residential services inserted by No. 22/2012 S. 3(1) def. of Disability Worker Registration Board inserted by No. 34/2020 S. 3(1) def. of exempt service provider inserted by No. 33/2017 S. 3(1) def. of Fair Work Australia inserted by No. 74/2009 S. 3(1) def. of follow up investigation inserted by No. 33/2017 S. 3(1) def. of former disability service provider inserted by No. 19/2019 (b) laundry facilities; (c) cooking facilities; (d) recreational areas; (e) garbage storage and disposal facilities; (f) bathroom, toilet and washing facilities; (g) appliances for heating or cooling premises; (h) communications facilities; (i) lawns, gardens and outhouses; (j) stairways— provided for the use of a resident otherwise than as a part of the room; Fair Work Australia has the same meaning as in the Fair Work Act 2009 of the Commonwealth; follow up investigation means an investigation under section 128R(1); forensic resident has the same meaning as it has in section 3(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; former disability service provider means a person or body whose registration as a disability service provider has lapsed or has been revoked; former regulated service provider means a person or body that has ceased to be a regulated service provider; funded service provider means a person who— (a) provides services to a person with a disability; and (b) receives from the Secretary funding provided under section 9 for the purpose of providing those services; group home means a residential service which is declared to be a group home under section 64; Health Complaints Commissioner has the same meaning as Commissioner has in the Health Complaints Act 2016; IBAC has the same meaning as in the Independent Broad-based Anti-corruption Commission Act 2011; individual initiated investigation means an initiated investigation under section 128B(1)(b); S. 3(1) def. of former regulated service provider inserted by No. 19/2019 S. 3(1) def. of funded service provider inserted by No. 22/2012 S. 3(1) def. of group home inserted by No. 22/2012 S. 3(1) def. of Health Complaints Commis- sioner inserted by No. 33/2017 S. 3(1) def. of individual initiated investigation inserted by No. 33/2017 S. 3(1) def. of initiated investigation inserted by No. 33/2017 S. 3(1) def. of leave of absence amended by No. 19/2019 S. 3(1) def. of mechanical restraint substituted by No. 19/2019 S. 3(1) def. of Mental Health Complaints Commis- sioner inserted by No. 33/2017 S. 3(1) def. of Minister repealed by No. 33/2017 initiated investigation means an investigation under section 128B(1); intellectual disability, in relation to a person over the age of 5 years, means the concurrent existence of— (a) significant sub-average general intellectual functioning; and (b) significant deficits in adaptive behaviour— each of which became manifest before the age of 18 years; leave of absence means temporary leave from a residential treatment facility under section 156 given to a resident in accordance with the resident's treatment plan; mechanical restraint has the same meaning as in the NDIS (Restrictive Practices and Behaviour Support) Rules; Mental Health Complaints Commissioner has the same meaning as Commissioner has in the Mental Health Act 2014; * * * * * NDIA has the same meaning as Agency has in the NDIS Act; NDIS means the National Disability Insurance Scheme within the meaning of the NDIS Act; NDIS Act means the National Disability Insurance Scheme Act 2013 of the Commonwealth; NDIS behaviour support plan means a plan developed by an NDIS behaviour support practitioner for an NDIS participant; NDIS behaviour support practitioner means a person whom the NDIS Commissioner considers is suitable to undertake behaviour support assessments and to develop NDIS behaviour support plans that may contain the use of restrictive practices; NDIS Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission referred to in section 181C of the NDIS Act; NDIS Act behaviour support plan inserted by No. 19/2019 behaviour support practitioner inserted by No. 19/2019 Commis- sioner inserted by No. 19/2019 S. 3(1) def. of NDIS dwelling inserted by No. 19/2019
S. 3(1) def. of NDIS plan inserted by No. 19/2019 S. 3(1) def. of NDIS provider inserted by No. 19/2019 NDIS dwelling means— (a) an SDA enrolled dwelling; and (b) a short-term accommodation and assistance dwelling; NDIS participant means a person who is a participant in the NDIS; NDIS participant's guardian means— (a) the NDIS participant's guardian— (i) appointed under the Guardianship and Administration Act 2019; or (ii) appointed by the court; or (iii) if the NDIS participant is a child, the child's guardian, whether or not the natural parent of the child; or (b) the attorney of the NDIS participant appointed to be responsible for the NDIS participant's personal matters under an enduring power of attorney under the Powers of Attorney NDIS plan means a plan (other than an NDIS behaviour support plan) for an NDIS participant that is in effect under section 37 of the NDIS Act; NDIS provider has the same meaning as in the NDIS Act and includes registered NDIS providers; NDIS Quality and Safeguards Commission means the NDIS Quality and Safeguards Commission established under section 181A of the NDIS Act; NDIS (Restrictive Practices and Behaviour Support) Rules means the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 (however titled) of the Commonwealth, as in force from time to time, under the NDIS Act; * * * * * * * * * * * * * * * notice of intention to vacate means a notice given under section 80; S. 3(1) def. of NDIS Quality and Safeguards Commission inserted by No. 19/2019 (Restrictive Practices and Behaviour Support) Rules inserted by No. 19/2019 S. 3(1) def. of NDIS worker screening check inserted by No. 19/2019 S. 3(1) def. of NDIS worker screening legislation inserted by No. 19/2019 S. 3(1) def. of NDIS worker screening unit inserted by No. 19/2019 S. 3(1) def. of notice to take action inserted by No. 33/2017 S. 3(1) def. of Ombudsman inserted by No. 33/2017 S. 3(1) def. of physical restraint inserted by No. 19/2019 S. 3(1) def. of police officer inserted by No. 37/2014 S. 3(1) def. of Post Sentence Authority inserted by No. 57/2017 notice of temporary relocation means a notice given under section 74; notice to take action means a notice given by the Disability Services Commissioner under— (a) section 119(1)(a) that specifies action to be taken under section 119(1)(c); or (b) section 128F that specifies action to be taken under section 128G; or (c) section 128N that specifies action to be taken; notice to vacate means a notice given under section 76; Ombudsman means the Ombudsman appointed under the Ombudsman Act 1973; person includes a body or association (corporate or unincorporate) and a partnership; physical restraint has the same meaning as in the NDIS (Restrictive Practices and Behaviour Support) Rules; police officer has the same meaning as in the Post Sentence Authority means the Post Sentence Authority continued in existence under section 290 of the Serious Offenders premises means a structure that is designed to be used for human habitation and the area outside that structure which is part of the property on which the premises is located and includes— (a) the room occupied or to be occupied by a resident; (b) any common area; (c) any facilities; prescribed service provider means a person— (a) who provides services to a person with a disability specifically for the support of that person; and (b) who is— (i) prescribed for the purposes of this definition; or (ii) of a class of service provider prescribed for the purposes of this definition; prison has the same meaning as in the Public Advocate has the same meaning as in the referral investigation means an investigation under section 128I(1); S. 3(1) def. of prescribed service provider inserted by No. 33/2017 S. 3(1) def. of Public Advocate substituted by No. 13/2019 S. 3(1) def. of referral investigation inserted by No. 33/2017 S. 3(1) def. of region amended by No. 26/2014 S. 3(1) def. of registered medical practitioner inserted by No. 13/2010 S. 3(1) def. of registered NDIS provider inserted by No. 19/2019 S. 3(1) def. of regulated disability service inserted by No. 33/2017 S. 3(1) def. of regulated restrictive practice inserted by No. 19/2019 region has the same meaning as in the Supported Residential Services (Private Proprietors) Act 2010; register of disability service providers means the register of disability service providers kept under section 46; registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student); registered NDIS provider has the same meaning as in the NDIS Act; regulated disability service means any of the following— (a) a service provided to a person with a disability by a contracted service provider; (b) a service provided to a person with a disability by a funded service provider; (c) a service provided to a person with a disability specifically to support that person by a prescribed service provider; regulated restrictive practice has the same meaning as in the NDIS (Restrictive Practices and Behaviour Support) Rules; regulated service provider means any of the following— (a) a contracted service provider; (b) a funded service provider; (c) a prescribed service provider; rent component means an amount for the use by a resident of the room, any common area and the premises; resident means a person who receives disability services in a residential service; resident's administrator means the resident's attorney appointed under an enduring power of attorney under the Powers of Attorney Act 2014 to administer the resident's property or a person appointed by a court or tribunal as the administrator of the resident's property; resident's guardian means— (a) the resident's guardian— (i) appointed under the Guardianship and Administration Act 2019; or (ii) appointed by the court; or (iii) if the resident is a child, the child's guardian, whether or not the natural parent of the child; or (b) the attorney of the resident appointed to be responsible for personal matters under an enduring power of attorney under the Powers of Attorney S. 3(1) def. of regulated service provider inserted by No. 33/2017 S. 3(1) def. of resident's administrator amended by No. 57/2014 S. 3(1) def. of resident's guardian substituted by No. 57/2014 S. 3(1) def. of residential institution repealed by No. 19/2019 S. 3(1) def. of residential service substituted by No. 22/2012 S. 3(1) def. of restrictive practice inserted by No. 19/2019 residential charge means a charge comprising the rent component or both the rent component and the services component; * * * * * residential service means residential accommodation— (a) provided by, on behalf of, or by arrangement with, a disability service provider; and (b) provided as accommodation in which residents are provided with disability services; and (c) supported by rostered staff that are provided by a disability service provider; and (d) admission to which is in accordance with a process determined by the Secretary; residential treatment facility means a premises or program proclaimed to be a residential treatment facility under section 151; residential treatment order has the same meaning as it has in section 3(1) of the Sentencing Act 1991; Residents' Trust Fund means the Residents' Trust Fund continued under section 91; restrictive practice means any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with a disability or of an NDIS participant; RTO resident means a person who is subject to a residential treatment order; * * * * * * * * * * room means a room in a premises where the room is occupied or intended to be occupied by a person who has a right to occupy the room for the purpose of a residence together with a right to use in common with others common areas in the premises; SDA enrolled dwelling means a permanent dwelling— (a) that provides long-term accommodation for one or more SDA residents; and (b) that is enrolled as an SDA dwelling under the National Disability Insurance Scheme (Specialist Disability Accommodation) Rules 2016 of the Commonwealth as in force from time to time or under other rules made under the NDIS Act; and (c) that may comprise of— (i) an area or room exclusively occupied by an SDA resident and common areas shared by other SDA residents under an SDA residency agreement; or S. 3(1) def. of restraint repealed by No. 19/2019 S. 3(1) def. of restrictive intervention repealed by No. 19/2019 S. 3(1) def. of SDA enrolled dwelling inserted by No. 38/2018 S. 3(1) def. of SDA provider inserted by No. 38/2018 S. 3(1) def. of SDA recipient inserted by No. 19/2019 residency agreement inserted by No. 38/2018 S. 3(1) def. of SDA resident inserted by No. 38/2018 (ii) the dwelling as a whole occupied exclusively by an SDA resident under an SDA residency agreement; or (iii) the dwelling as a whole occupied under a residential rental agreement (within the meaning of the Residential Tenancies SDA provider means a person— (a) who is a registered NDIS provider; and (b) who provides specialist disability accommodation; and (c) who is the owner or leaseholder of an SDA enrolled dwelling; SDA recipient means an NDIS participant who is funded to reside in an SDA enrolled dwelling; SDA residency agreement means an agreement entered into or established under section 498F of the Residential Tenancies Act 1997 between an SDA provider and an SDA resident in respect of an SDA enrolled dwelling; SDA resident means— (a) a person who is an SDA recipient; (b) a person who is a CoS supported accommodation client; SDA resident's guardian means— (a) the SDA resident's guardian— (i) appointed under the Guardianship and Administration Act 2019; or (ii) appointed by the court; or (iii) if the SDA resident is a child, the child's guardian, whether or not the natural parent of the child; or (b) the attorney of the SDA resident appointed to be responsible for the SDA resident's personal matters under an enduring power of attorney under the Powers of Attorney Act 2014; seclusion has the same meaning as in the NDIS (Restrictive Practices and Behaviour Support) Rules; Secretary means the Department Head (within the meaning of the Public Administration security order means a security order made under section 166; security resident means a person in respect of whom a security order is in force; Senior Practitioner means the person appointed as the Senior Practitioner under section 23; services component means an amount for whichever of the following service items are provided to a resident— (a) utilities; resident's guardian inserted by No. 19/2019 S. 3(1) def. of seclusion substituted by No. 19/2019 S. 3(1) def. of Secretary substituted by No. 29/2010 S. 3(1) def. of short-term accom- modation and assistance dwelling inserted by No. 19/2019 S. 3(1) def. of special leave amended by No. 19/2019 S. 3(1) def. of State Coroner inserted by No. 33/2017 (b) communications including telephone; (c) bedding and linen; (d) food; (e) general household consumable supplies; (f) communal furnishings and whitegoods; (g) household equipment and utensils; (h) replacement of items specified in subparagraphs (b), (c), (e), (f), or (g) following wear and tear or accidental damage; short-term accommodation and assistance dwelling means accommodation for an NDIS participant— (a) that is provided on a short-term basis and is not a private home; and (b) at which a registered NDIS provider provides supports and living assistance to the NDIS participant; special leave means leave from a residential treatment facility under section 157; State Coroner has the same meaning as in the supervised treatment means treatment used on a person with an intellectual disability under a supervised treatment order; supervised treatment order means a civil order made in respect of a person with an intellectual disability under section 191; support plan means a support plan prepared under section 54 for a person with a disability who is receiving on-going disability services; Supported Independent Living provider means a registered NDIS provider that provides supported independent living assistance; systemic initiated investigation means an initiated investigation under section 128B(1)(a); treatment plan means a plan for the use of treatment on a person with a disability or an NDIS participant prepared under section 153, 167, 180(6) or 191; urgent repairs means any work necessary to repair or remedy— (a) a burst water service; or (b) a blocked or broken lavatory system; or (c) a serious roof leak; or (d) a gas leak; or (e) a dangerous electrical fault; or (f) flooding or serious flood damage; or (g) serious storm or fire damage; or (h) a failure or breakdown of any essential service or appliance provided by a disability service provider for hot water, water, cooking, heating or laundering; or S. 3(1) def. of Supported Independent Living provider inserted by No. 19/2019 S. 3(1) def. of systemic initiated investigation inserted by No. 33/2017 S. 3(1) def. of treatment plan amended by No. 19/2019 S. 3(1) def. of Victoria Police inserted by No. 33/2017 S. 3(1) def. of Victorian Disability Advisory Council amended by No. 34/2020 S. 3(1) def. of Victorian Disability Worker Commission inserted by No. 34/2020 S. 3(1) def. of Victorian Disability Worker Commis- sioner inserted by No. 34/2020 (i) a failure or breakdown of the gas, electricity or water supply to a residential service; or (j) an appliance, fitting or fixture provided by a disability service provider that uses or supplies water and that is malfunctioning in a way that results or will result in a substantial amount of water being wasted; or (k) any fault or damage that makes a room or residential service unsafe or insecure; or (l) a serious fault in a staircase; or (m) any damage of a prescribed class; Victoria Police has the same meaning as in the Victorian Disability Advisory Council means the Council established under section 11; Victorian Disability Worker Commission means the Victorian Disability Worker Commission established under section 21 of the Disability Service Safeguards Act 2018; Victorian Disability Worker Commissioner means the Victorian Disability Worker Commissioner appointed under section 26 of the Disability Service Safeguards * * * * * A disability service provider is taken to be providing residential services in relation to accommodation that is provided by another person if the other person is providing the accommodation— (a) on behalf of the disability service provider; or (b) by arrangement with the disability service provider.
The objectives of this Act are to— (a) advance the inclusion and participation in the community of persons with a disability; (b) promote a strategic whole of government approach in supporting the needs and aspirations of persons with a disability; (c) facilitate the planning, funding and provision of services, programs and initiatives for persons with a disability; (d) promote and protect the rights of persons accessing disability services; (e) support the provision of high quality disability services; (f) make disability service providers accountable to persons accessing those disability services; (g) ensure the efficient and effective use of public funds in the provision of disability services; (h) provide a process for authorising the proper use of restrictive practices on NDIS participants; (i) provide for appropriate compulsory treatment of NDIS participants.
Persons with a disability have the same rights and responsibilities as other members of the community and should be empowered to exercise those rights and responsibilities.
Persons with a disability have the same right as other members of the community to— (a) be given respect for their human worth and dignity as individuals; (b) live free from abuse, neglect or exploitation; (c) realise their individual capacity for physical, social, emotional and intellectual development; (d) exercise control over their own lives; (e) participate actively in the decisions that affect their lives and have information and be supported where necessary, to enable this to occur; (f) access information and communicate in a manner appropriate to their communication and cultural needs; (g) services which support their quality of life.
Disability services and regulated disability services should— (a) advance the inclusion and participation in the community of persons with a disability with the aim of achieving their individual aspirations; (b) be flexible and responsive to the individual needs of persons with a disability; (c) maximise the choice and independence of persons with a disability; (d) be designed and provided in a manner that recognises different models of practice may be required to assist people with different types of disability and at different stages in their lives to realise their physical, social, emotional and intellectual capacities; (e) enable persons with a disability to access services as part of their local community and foster collaboration, coordination and integration with other local services; (f) as far as possible be provided in a manner so that a person with a disability need not move out of his or her local community to access the disability services required; (g) be of high quality and provided by appropriately skilled and experienced staff who have opportunities for on-going learning and development; (h) consider and respect the role of families, carers and other persons who are significant in the life of the person with a disability; (i) acknowledge the important role families and carers have in supporting persons with a disability; (j) acknowledge the important role families have in assisting their family member to realise their individual physical, social, emotional and intellectual capacities; (ja) acknowledge the important role carers have in assisting the people they care for to realise their individual physical, social, emotional and intellectual capacities; (k) where possible strengthen and build capacity of families and carers who are supporting persons with a disability; (l) have regard for the needs of children with a disability and preserve and promote relationships between the child, their family and other persons (including carers) who are significant in the life of the child with a disability; (m) be provided in a manner that respects the privacy and dignity of persons accessing the disability services; (ma) be provided in a manner that promotes the upholding of the rights, dignity, wellbeing and safety of persons with a disability; (mb) be provided in a manner that does not— (i) tolerate abuse, neglect or exploitation of persons with a disability; or (ii) normalise abuse, neglect or exploitation of persons with a disability; (n) be provided in a way which reasonably balances safety with the right of persons with a disability to choose to participate in activities involving a degree of risk; (o) have regard for any potential increased disadvantage which may be experienced by persons with a disability as a result of their gender, language, cultural or indigenous background or location; (p) be designed and administered in a manner so as to ensure that persons with a disability have access to advocacy support where necessary to enable adequate decision making about the services they receive; (q) be designed and provided in a manner which continues to reflect the role of the Secretary in providing and funding planning for persons with a disability; (r) be accountable for the quality of those services and for the extent to which the rights of persons with a disability are promoted and protected in the provision of those services. (3A) Restrictive practices used on NDIS participants and the compulsory treatment of NDIS participants should be provided in a manner that— (a) respects the privacy and dignity of NDIS participants; and (b) promotes the upholding of the rights, dignity, wellbeing and safety of NDIS participants; and (c) does not— (i) tolerate abuse, neglect or exploitation of NDIS participants; or (ii) normalise abuse, neglect or exploitation of NDIS participants.
If a restriction on the rights or opportunities of a person with a disability or an NDIS participant is necessary, the option chosen should be the option which is the least restrictive of the person as is possible in the circumstances.
It is the intention of Parliament that the principles specified in this section should wherever possible be given effect to in the administration of this Act and the provision of disability services and regulated disability services.
It is the intention of Parliament that the principles specified in subsections (3A) and (4) should wherever possible be given effect to in the administration of restrictive practices and compulsory treatment by registered NDIS providers.
The following principles apply specifically in respect of persons with an intellectual disability— (a) persons with an intellectual disability have a capacity for physical, social, emotional and intellectual development; (b) persons with an intellectual disability have the right to opportunities to develop and maintain skills and to participate in activities that enable them to achieve valued roles in the community; * * * * * (e) services for persons with an intellectual disability should be designed and provided in a manner that ensures developmental opportunities exist to enable the realisation of their individual capacities; (f) services for persons with an intellectual disability should be designed and provided in a manner that ensures that a particular disability service provider cannot exercise control over all or most aspects of the life of a person with an intellectual disability.
The repeal of the Intellectually Disabled Persons' Services Act 1986 by this Act does not affect the responsibility of the Minister and the Secretary for the provision, management, development and planning of services for persons with an intellectual disability.
For the purposes of determining whether or not a person over the age of 5 years has an intellectual disability— (a) if a standardised measurement of intelligence is used to assess general intellectual functioning and it— (i) indicates that the person has an intelligence not higher than 2 standard deviations below the population average, then he or she must be taken to have significant sub-average general intellectual functioning; (ii) indicates that the person has an intelligence not lower than 2 standard deviations below the population average, then he or she must be taken not to have significant sub-average general intellectual functioning; (iii) is inconclusive as to whether or not the person has an intelligence higher or lower than 2 standard deviations below the population average, then the Secretary may take into account other indicators of general intellectual functioning in determining whether or not the person has significant sub- average general intellectual functioning; (b) if a standardised measurement of adaptive behaviour is used to assess adaptive behaviour and it indicates a score at or below the second percentile of people of the same age and cultural group, then he or she must be taken to have significant deficits in adaptive behaviour.
In applying a standardised measurement of intelligence for the purposes of subsection (3)(a), the Secretary must consider the test result within the 95% confidence level as determined by the standard error of measurement of the test.
Nothing in subsection (3) requires the Secretary to use a standardised measurement in the assessment of intellectual disability.
Section 55 provides for planning for persons with an intellectual disability. * * * * *
Part 8 provides for persons with an intellectual disability who require compulsory treatment.
If the Secretary is satisfied that a person has an intellectual disability, the Secretary may for the purposes of any Act or regulation provide a statement that a person has an intellectual disability within the meaning of this Act.
The contents of any advice, notice or information given or provided to a person with a disability or an NDIS participant under this Act must be explained by the person giving the advice, notice or information to the maximum extent possible to the person with a disability or the NDIS participant in the language, mode of communication and terms which that person is most likely to understand.
An explanation given under subsection (1) must where reasonable be given both orally and in writing.
If a person with a disability or an NDIS participant appears to be incapable of reading and understanding information provided under this Act, a disability service provider or an NDIS provider, as the case requires, must use reasonable endeavours to convey the information to the person with a disability or NDIS participant in the language, mode of communication or terms which the person with a disability or NDIS participant is most likely to understand.
For the purposes of subsection (3), the disability service provider or NDIS provider, as the case requires, may give a copy of the advice, notice or information— (a) to a family member, carer, guardian, advocate or other person chosen by the person with a disability or NDIS participant; or (b) in the case of a person with a disability, if no person is chosen under paragraph (a), to a person who the disability service provider considers can assist the person with a disability and is not employed by, or a representative of, the disability service provider; or (c) in the case of an NDIS participant, if no person is chosen under paragraph (a), to a person who the NDIS provider considers can assist the NDIS participant and is not employed by, or a representative of, the NDIS provider.
For the purposes of this Act, the role of the Secretary is to— (a) plan, develop, provide and fund or purchase comprehensive services, programs and initiatives for persons with a disability; (b) provide and fund programs and initiatives that facilitate persons with a disability exercising their rights and meeting their responsibilities in the community; (c) collect and analyse data for the purpose of enabling the Secretary to achieve the objectives and perform the functions specified in this Act, including complying with reporting requirements for the purposes of this Act and the Commonwealth State Territory Disability Agreement; (ca) set requirements in relation to screening of persons employed or engaged, or to be employed or engaged, by disability service providers for the purpose of providing services to persons with a disability; (d) subject to the general direction and control of the Minister, administer this Act in accordance with the objectives and principles specified in this Act.
Without limiting the generality of subsection (1), the Secretary has the following functions— (a) to promote awareness and understanding of disability within the community; (b) to advance the inclusion and participation of persons with a disability in the community; (c) to develop policies for disability services; (d) to develop and publish criteria to enable priority of access to disability services to be determined in a fair manner; (e) to determine priorities in relation to policy development, resource allocation and the provision of disability services; (f) to monitor, evaluate and review disability services; (g) to promote the quality of disability services; (h) to promote the establishment of appropriate training courses and the availability of on-going training for persons employed in the provision of disability services; (i) to foster collaboration, coordination and integration in the provision to persons with a disability of disability services with other local services; (j) to make recommendations and reports to the Minister with respect to matters relating to persons with a disability and NDIS participants and to advise the Minister on the operation of this Act.
Subject to the approval of the Minister and having regard to the objectives and principles specified in this Act, the Secretary may allocate funds out of money available for the purpose to persons including municipal councils and non-government organisations.
The Secretary may allocate funds under subsection (1) to be used for the purposes and subject to the conditions considered by the Secretary to be appropriate.
Funds under subsection (1) may be provided to a person who has entered into a contract with the Secretary whether under section 10 or under any other Act provided that the contract requires that the funds provided under subsection (1) must be used for the purposes specified under subsection (2).
Without limiting the powers conferred on the Secretary whether under this or any other Act, the Secretary may, on behalf of the Crown, enter into a contract with a person for the provision of goods or services— (a) to persons with a disability; or (b) that relate to the administration of this Act.
A contract under this section— (a) remains in force for the period (not exceeding 3 years) specified in the contract; (b) may contain any conditions, requirements or other provisions that are not inconsistent with this Act.
The Secretary may, on behalf of the Crown and for the purposes of this Act— (a) acquire, hold or dispose of land; and (b) otherwise deal with any land held by the Secretary.
Any acquisition or disposition of or other dealing with land by the Secretary under this Act on behalf of the Crown must be made in the name of the "Secretary to the Department of Health and Human Services".
Without limiting subsections (1) and (2), the Secretary may, on behalf of the Crown, dispose of or otherwise deal with land held by the Secretary and that was acquired under this Act in the name of "Secretary to the Department of Human Services" or "Secretary to the Department of Health and Human Services" by any person who previously held, acted in or performed the duties of, the office of Secretary.
The Secretary may be a committee of management under the Crown Land (Reserves) Act 1978 under the name "Secretary to the Department of Health and Human Services".
On and after the day on which section 6 of the Disability (National Disability Insurance Scheme Transition) Amendment Act 2019 comes into operation, any record relating to a committee of management to which subsection (1) applies must refer to the committee of management in the name of "Secretary to the Department of Health and Human Services".
If the Secretary acquires any land on behalf of the Crown for the purposes of this Act, any recordings in the Register by the Registrar of Titles of the acquisition must be in the name of the "Secretary to the Department of Health and Human Services" as registered proprietor.
If the Secretary, on behalf of the Crown for the purposes of this Act, disposes of or otherwise deals with any land held in the name of "Secretary to the Department of Human Services" or "Secretary to the Department of Health and Human Services", any recording in the Register by the Registrar of Titles must be made in the name of "Secretary to the Department of Human Services" or "Secretary to the Department of Health and Human Services".
If the Secretary, on behalf of the Crown, lodges with the Registrar of Titles any dealing in relation to any land for the purposes of this Act, the Registrar must make any recording in relation to that dealing in the name of "Secretary to the Department of Health and Human Services".
To avoid doubt, land acquired in fee simple by the Secretary on behalf of the Crown for the purposes of this Act is Crown land.
Despite subsection (4) and anything to the contrary in the Land Act 1958 or the Transfer of Land Act 1958, if land acquired by the Secretary on behalf of the Crown for the purposes of this Act— (a) is under the operation of the Transfer of Land Act 1958, it remains under the operation of that Act; and (b) is not under the operation of the Transfer of Land Act 1958, it may be brought under the operation of that Act. The Secretary may, on behalf of the Crown— (a) acquire (whether by creation, lease, licence, receiving the assignment or grant of, or otherwise), hold, accept as security, or otherwise deal with any intellectual property right (for example, a trade mark, patent, design, copyright (including an associated moral right), plant breeder's right, circuit layout right, trade secret, or right arising from confidential information); (b) assign, grant, lease, licence, sell or dispose of, any intellectual property right; (c) seek any remedy in relation to, or do anything necessary to enforce, protect, maintain, register or exploit, any intellectual property right; (d) seek any remedy in relation to, or do anything necessary to enforce, protect, maintain, register or exploit any Crown copyright.
There is established a body to be known as the Victorian Disability Advisory Council.
The Victorian Disability Advisory Council is to consist of not less than 8 members and not more than 14 members as may be appointed by the Minister.
The Minister must ensure that members of the Victorian Disability Advisory Council are appointed from persons who— (a) reflect the diversity of persons with a disability; and (b) reflect the cultural and indigenous backgrounds of persons with a disability; and (c) have appropriate skills, knowledge and experience in matters relevant to persons with a disability, including children with a disability; and (d) in so far as is possible have personal experience of disability.
The Minister must ensure that a majority of the members of the Victorian Disability Advisory Council are persons with a disability.
The Minister must appoint one of the members to be the chairperson of the Victorian Disability Advisory Council.
The functions of the Victorian Disability Advisory Council are to— (a) provide advice to the Minister in respect of— (i) whole of government policy directions and strategic planning and the implementation of initiatives for persons with a disability; (ii) the barriers to full inclusion and participation in the community of persons with a disability and the strategies for the removal of those barriers; (iii) any matter relating to disability referred to the Victorian Disability Advisory Council by the Minister; (b) effectively communicate with persons with a disability, the Government of Victoria and the community; (c) raise community awareness of the rights of persons with a disability and of the role of government, the business sector and the community in promoting those rights; (d) consult and work with other disability advisory councils or bodies whether at a national, state or local government level; (e) monitor the implementation of strategies for promoting inclusion and participation in the community of persons with a disability and for removing barriers to inclusion and participation.
The Victorian Disability Advisory Council must report annually to the Minister on the performance of its functions.
A member of the Victorian Disability Advisory Council— (a) holds office for the period, not exceeding 3 years, as is specified in the instrument of appointment but, subject to paragraph (b), is eligible for re-appointment; (b) can not hold office for more than 2 consecutive terms; (c) holds office on the terms and conditions specified in the instrument of appointment; (d) is entitled to receive the remuneration and allowances as are fixed by the Governor in Council for the purposes of this section; (e) may resign from the office of member by notice in writing delivered to the Minister; (f) may be removed from the office of member by the Minister in accordance with subsection (2); (g) is in respect of the office of member subject to the Public Administration Act 2004 (other than Part 3 of that Act).
The Minister may remove a member of the Victorian Disability Advisory Council from the office of member if— (a) the member is unable to perform the duties of office because of illness or absence from Victoria; (b) in the opinion of the Minister the member has misbehaved, neglected the duties of the office or is incompetent; (c) the member is or becomes bankrupt; (d) the Minister is of the opinion that any other act or omission of the Member has adversely affected the operation of the Victorian Disability Advisory Council.
A majority for the time being of the members of the Victorian Disability Advisory Council constitutes a quorum of the Victorian Disability Advisory Council.
The Victorian Disability Advisory Council must keep minutes of its meetings.
Subject to the regulations, the Victorian Disability Advisory Council may regulate its own proceedings.
There shall be a Disability Services Commissioner.
The Disability Services Commissioner is to be appointed by the Governor in Council.
The Disability Services Commissioner is to hold office for a term, not exceeding 5 years, specified in the instrument of his or her appointment, but is eligible for re-appointment.
The Governor in Council may specify other terms and conditions of appointment in the Disability Services Commissioner's instrument of appointment.
The Disability Services Commissioner is entitled to receive any remuneration or allowances from time to time fixed by the Governor in Council.
The Disability Services Commissioner is, in respect of that office, not subject to the Public Administration Act 2004.
If immediately before his or her appointment, the Disability Services Commissioner was an officer within the meaning of the State Superannuation Act 1988, then while he or she is Disability Services Commissioner, he or she continues, subject to that Act, to be an officer within the meaning of that Act.
The Governor in Council may appoint a person to be the Acting Disability Services Commissioner— (a) during a vacancy in the office of Disability Services Commissioner; or (b) during any period when the Disability Services Commissioner is absent or, for any reason, is unable to perform the functions of the Disability Services Commissioner.
An acting appointment is for the period and on any other terms and conditions determined by the Governor in Council.
The Acting Disability Services Commissioner is entitled to receive any remuneration or allowances from time to time fixed by the Governor in Council.
While acting in the place of the Disability Services Commissioner, the Acting Disability Services Commissioner has all the powers, functions and duties of the Disability Services Commissioner.
The Acting Disability Services Commissioner is, in respect of that office, not subject to the Public Administration Act 2004.
This section does not affect the operation of section 110 of the Public Administration Act 2004.
The functions of the Disability Services Commissioner are to— (a) to investigate complaints relating to disability services and regulated disability services; (b) review and identify the causes of complaints and to suggest ways of removing and minimising those causes; (ba) review and identify the causes of abuse and neglect in the provision of disability services and regulated disability services to persons with a disability and suggest ways of removing and minimising those causes; (c) provide advice, inquire into or investigate matters referred by the Minister or the Secretary; (ca) to conduct investigations into the provision of services to persons with a disability as specified in this Act; (d) conciliate where a complaint has been made in relation to a disability service provider or a regulated service provider; (e) take steps to publish and make available in an accessible manner details of complaints procedures and procedures for accountability investigations; (f) maintain a record of all complaints received and investigations conducted by the Disability Services Commissioner; * * * * * (h) consider ways of improving disability services complaints systems or complaints systems of regulated service providers; (i) provide advice to the Disability Services Board; (j) refer issues to the Disability Services Board for advice; (k) develop programs for persons in the handling of complaints; * * * * * (m) subject to the approval of the Minister, to initiate inquiries into— (i) matters referred by the Disability Services Board; and (ii) broader issues concerning services for persons with a disability arising out of complaints received; (n) provide education and information about the prevention of conduct that leads to complaints and about the resolution of complaints relating to the provision of disability services and regulated disability services; (o) provide education and information about responding to allegations of abuse and neglect in the provision of disability services and regulated disability services; (oa) provide education and information about the prevention of abuse and neglect in the provision of disability services and regulated disability services; (p) conduct research into— (i) complaints relating to the provision of disability services and regulated disability services; and (ii) mechanisms for resolving complaints relating to the provision of disability services and regulated disability services; (pa) conduct research into— (i) abuse and neglect in the provision of disability services and regulated disability services; and (ii) mechanisms for preventing abuse and neglect in the provision of disability services and regulated disability services; (q) perform any other functions specified in this Act.
The functions of the Disability Services Commissioner referred to in subsection (1)(a) to (f) continue to apply in relation to a former disability service provider or former regulated service provider to the extent that Divisions 6, 6A, 6B, 6C, 8 and 9 of Part 6 apply to the former disability service provider or former regulated service provider, as the case requires.
In performing functions under this Act, the Disability Services Commissioner may do any of the following— (a) consult with any persons or bodies which the Disability Services Commissioner considers appropriate; (b) develop, and suggest ways of implementing, procedures for— (i) dealing with complaints relating to disability services or regulated disability services; and (ia) preventing and responding to abuse and neglect of persons with a disability receiving disability services or regulated disability services; and (ii) making existing procedures more effective; (c) provide advice to complainants of alternative means for dealing with complaints; (d) provide advice generally on any matter with respect to complaints to— (i) disability service providers and regulated service providers; and (ii) complainants; and (iii) the Minister; and (iv) the Secretary; (da) provide advice generally on any matter with respect to accountability investigations and the prevention and response to abuse and neglect to— (i) disability service providers and regulated service providers; and (ii) persons with a disability; and (iii) the Minister; and (iv) the Secretary; (e) encourage disability service providers and regulated service providers to distribute, display or make available material and information produced by the Disability Services Commissioner about the resolution of complaints; (f) seek information about the working of the complaints system and about any systems in place to prevent and respond to abuse and neglect from the following— (i) disability service providers; (ii) regulated service providers; (iii) users of services provided by disability service providers or regulated service providers; (g) anything necessary or convenient to be done for or in connection with the performance of those functions. (1A) In performing functions under this Act, the Disability Services Commissioner may exercise any power referred to in subsection (1)(a), (b), (c), (d), (da) and (g) in relation to a former disability service provider or former regulated service provider to the extent that Divisions 6, 6A, 6B, 6C, 8 and 9 of Part 6 apply to the former disability service provider or former regulated service provider, as the case requires.
The Disability Services Commissioner may by instrument delegate to a person or a class of persons employed under section 18 any power, duty or function of the Disability Services Commissioner other than this power of delegation.
There may be employed under Part 3 of the Public Administration Act 2004 any employees that are necessary to assist the Disability Services Commissioner in the performance of his or her powers, duties and functions under this Act.
The Disability Services Commissioner may enter into agreements or arrangements with a person or body for the purpose of obtaining appropriate expertise to assist the Disability Services Commissioner in the performance of functions and the exercise of powers under this Act.
The Disability Services Commissioner must include— (a) information about— (i) the number and type of complaints and the outcome of the complaints; and (ii) the number and type of follow up investigations for the complaints and the outcome of the follow up investigations; and (ab) information about any occasions on which the Disability Services Commissioner considered, under section 113(4)(b), that it was reasonable to take longer than 90 days for the preliminary assessment of a complaint, including— (i) the reasons why the Commissioner considered that it was reasonable; and (ii) information about how the complaint was or is being dealt with; and (b) information about— (i) the number and type of initiated investigations and the outcome of the investigations; and (ii) the number and type of any follow up investigations for those initiated investigations and the outcome of the follow up investigations; and (c) if so requested by the Minister in writing, information about— (i) the number and type of referral investigations and the outcome of the investigations; and (ii) the number and type of any follow up investigations for those referral investigations and the outcome of the follow up investigations; and (d) any other information specifically requested in writing by the Minister— during the financial year in the relevant annual report of operations under Part 7 of the Financial Management Act 1994.
In a report under subsection (1) the Disability Services Commissioner may name a service provider— (a) who has unreasonably failed to take action specified in a notice to take action; and (b) who has been given a notice under section 128Q.
Before naming a service provider in a report under subsection (1), the Disability Services Commissioner must, at least 14 days before naming that service provider— (a) notify the service provider in writing that the Disability Services Commissioner intends to name that service provider in a report; and (b) give the service provider an opportunity to object to the naming of that service provider in the report within the period specified in the notice. (3A) A reference to a service provider in subsections
and (3) includes a reference to a former disability service provider or a former regulated service provider, to the extent that Divisions 6, 6A, 6B, 6C, 8 and 9 of Part 6 apply to the former disability service provider or former regulated service provider, as the case requires.
The Disability Services Commissioner is not personally liable for anything done or omitted to be done in good faith— (a) in the exercise of a power or the performance of a function under this Act; or (b) in the reasonable belief that the act or omission was in the exercise of a power or the performance of a function under this Act.
Any liability resulting from an act or omission that, but for subsection (1), would attach to the Disability Services Commissioner attaches instead to the State.
Nothing in this section derogates from the effect of section 132U.
There is established a Disability Services Board.
The Disability Services Board consists of 11 persons appointed by the Minister.
The members of the Disability Services Board must include— (a) 3 persons who, in the Minister's opinion, have experience of and are able to express the interests of disability service providers; (b) 3 persons with a disability who, in the Minister's opinion, have experience of and are able to express the interests of disability service users; (c) 3 persons who, in the Minister's opinion, have expertise that will benefit the Disability Services Board and are not disability service providers or disability service users; (d) 1 person who is a representative of the Secretary; (e) 1 person who is a representative of the Health Complaints Commissioner within the meaning of the Health Complaints
The Minister must ensure that at least one of the members appointed under subsection (3) is a person who in the Minister's opinion has experience of and can represent the interests of children with a disability.
The Minister must appoint one of the members to be the President of the Disability Services Board.
Subject to subsection (6A), each member of the Disability Services Board holds office for 3 years from the date of the member's appointment and is eligible for re-appointment. (6A) The term of a member's office may be extended once for a period not exceeding 3 years.
The Minister may remove a member of the Disability Services Board from the office of member if— (a) the member is unable to perform the duties of office because of illness or absence from Victoria; (b) in the opinion of the Minister the member has misbehaved, neglected the duties of the office or is incompetent; (c) the member is or becomes bankrupt; (d) the Minister is of the opinion that any other act or omission of the member has adversely affected the operation of the Disability Services Board.
A question can not be decided at a meeting of the Disability Services Board unless there are at least 6 members present.
The President is to preside at meetings of the Disability Services Board at which the President is present.
If the President is not present at a meeting, the members present must elect one of their number to preside at the meeting.
The Disability Services Board must meet at the times and places that the Minister or the President fixes.
The decision of the majority of the members present and voting at any meeting is the decision of the Disability Services Board.
If there is a tied vote at any meeting, the person presiding at the meeting is to have an additional or casting vote.
If a member of the Disability Services Board disagrees with a majority of the Disability Services Board on any decision providing advice to the Minister, the member may require— (a) that his or her view be recorded with reasons; and (b) that his or her view and reasons accompany any presentation of the decision to the Minister.
A member of the Disability Services Board who is not an employee in the public service is entitled to receive remuneration and allowances as the Minister determines.
Subject to this Act and the regulations, the Disability Services Board may regulate its own procedure.
The functions of the Disability Services Board are to— (a) advise the Minister on the disability complaints system and the operations of the Disability Services Commissioner under this Act; (b) advise the Disability Services Commissioner on issues referred to the Disability Services Board by the Disability Services Commissioner; (c) provide expertise, guidance and advice to the Disability Services Commissioner; (d) promote the Disability Services Commissioner and the operations of the Disability Services Commissioner; (e) subject to the approval of the Minister, refer matters relating to disability services complaints to the Disability Services Commissioner for inquiry.
The Disability Services Board may perform its functions in any manner that the Disability Services Board determines to be appropriate.
The Disability Services Board may require the Disability Services Commissioner to report to the Disability Services Board on any matter relating to the operations of the Disability Services Commissioner under this Act.
Subject to the Public Administration Act 2004, there is to be appointed by the Secretary as the Senior Practitioner a person who in the opinion of the Secretary has the appropriate clinical qualifications and experience to perform the functions and exercise the powers conferred on the Senior Practitioner by or under this Act.
Subject to the general direction and control of the Secretary, the Senior Practitioner— (a) is generally responsible for ensuring that the rights of persons who are subject to restrictive practices and compulsory treatment are protected and that appropriate standards in relation to restrictive practices and compulsory treatment are complied with; (b) has the powers, duties, functions and immunities that are conferred or imposed on the Senior Practitioner by or under this or any other Act.
The functions of the Senior Practitioner are— (a) to develop guidelines and standards with respect to restrictive practices and compulsory treatment; The guidelines and standards may include clinical matters. (b) to provide education and information with respect to restrictive practices and compulsory treatment to disability service providers; (c) to provide information with respect to the rights of persons with a disability and NDIS participants who may be subject to the use of restrictive practices or compulsory treatment; (d) to provide advice to disability service providers and registered NDIS providers to improve practice in relation to the use of restrictive practices and compulsory treatment; (e) to give directions to disability service providers and registered NDIS providers about one or more of the following, as the case requires— (i) restrictive practices; (ii) compulsory treatment; (iii) behaviour support plans; (iv) treatment plans; (f) to develop links and access to professionals, professional bodies and academic institutions for the purpose of facilitating knowledge and training in clinical practice for persons working with persons with a disability; (g) to undertake research into restrictive practices and compulsory treatment and provide information on practice options to disability service providers and registered NDIS providers; (h) to evaluate and monitor the use of restrictive practices across disability services and to recommend improvements in practice to the Minister and the Secretary; (i) to undertake any other function relating to persons with a disability as may be directed in writing by the Secretary; (j) any other functions specified by or under this Act.
The Senior Practitioner must publish annually— (a) information on the performance of the functions of the Senior Practitioner; (b) data relating to the use of restrictive practices and compulsory treatment.
Subject to this section, the Senior Practitioner may by instrument delegate to a person employed in the Department under Part 3 of the Public Administration Act 2004 any power, duty or function of the Senior Practitioner other than— (a) this power of delegation; or (b) any power conferred by section 199.
The Senior Practitioner must only delegate to a person— (a) who in the opinion of the Senior Practitioner has sufficient knowledge and expertise in respect of persons with a disability and NDIS participants; and (b) who has appropriate skills and qualifications in respect of the power, duty or function being delegated.
There may be employed under Part 3 of the Public Administration Act 2004 any employees with the appropriate expertise and experience that are necessary to assist the Senior Practitioner in the performance of his or her powers, duties and functions under this Act.
Subject to the approval of the Secretary, the Senior Practitioner may enter into agreements or arrangements with a person or body for the purpose of obtaining appropriate expertise to assist the Senior Practitioner in the performance of his or her powers, duties and functions under this Act.
This section applies— (a) in respect of the use of restrictive practices or compulsory treatment by a disability service provider or a registered NDIS provider; or (b) if the Senior Practitioner believes on reasonable grounds that the use of restrictive practices or compulsory treatment is occurring as part of the provision of a disability service or a service provided by a registered NDIS provider whether or not an order specified in section 152(2) or a supervised treatment order is in effect.
If this section applies, the Senior Practitioner has the power to— (a) in the case of a disability service provider, visit and inspect any part of the premises where disability services are being provided, other than any premises or part of any premises used as a private residence that is not a residential service; (ab) in the case of a registered NDIS provider, visit and inspect any place (other than a place or part of a place used as a private residence that is not an NDIS dwelling) where services are provided under the NDIS; (b) if paragraph (a) or (ab) applies, see any person who is subject to any restrictive practice or compulsory treatment; (c) investigate, audit and monitor the use of restrictive practices and compulsory treatment; (d) inspect and make copies of, or take extracts from, any document relating to any person who is subject to any restrictive practice or compulsory treatment; (e) see any person involved in the development, implementation or authorisation of any restrictive practice or compulsory treatment upon request; (f) request a disability service provider or an NDIS provider, as the case requires, to provide information about any restrictive practice or compulsory treatment; (g) authorise by written order given to the disability service provider or registered NDIS provider the use of a restrictive practice.
The Senior Practitioner may by written order direct a disability service provider— (a) to discontinue or alter as specified in the order, a practice, procedure or treatment observed or carried out by the disability service provider; (b) to observe or carry out a practice, procedure or treatment specified in the order; (c) to provide a practice, procedure or treatment, or a particular practice, procedure or treatment specified in the order, to a person with a disability who is specified in the order.
If the Senior Practitioner gives a direction under subsection (3)(a) to discontinue a practice, procedure or treatment, the Senior Practitioner must provide assistance in developing alternative strategies for the management of the behaviour of the person affected.
The Senior Practitioner must as soon as practicable advise in writing the person with a disability or the NDIS participant, as the case requires, of— (a) any authorisation given under subsection (2)(g); or (b) any direction given under subsection (3). (5A) The Senior Practitioner may notify the NDIS Commissioner of any matter relating to an NDIS provider that has come to the Senior Practitioner's attention in the course of exercising a power or performing a function or duty under this Act. (5B) The Senior Practitioner may prohibit the use of restrictive practices or a specified form of restrictive practice on— (a) persons with a disability; or (b) NDIS participants; or (c) persons belonging to a specified class of persons with a disability or NDIS participants— by one or more of the following— (d) disability service providers; (e) registered NDIS providers; (f) a person belonging to a specified class of disability service providers or registered NDIS providers. (5C) Notice of a prohibition referred to in subsection (5B) must be— (a) published on the Department's internet site; and (b) given to each applicable provider referred to in that subsection.
On the request of the Senior Practitioner, the following persons must provide the Senior Practitioner with any reasonable assistance that the Senior Practitioner requires to perform or exercise a power, duty or function under this Act— (a) a disability service provider; (b) a registered NDIS provider; (c) a member of the staff or management of a disability service provider; (d) a member of the staff or management of a registered NDIS provider.
A person referred to in subsection (6) must— (a) reasonably render assistance when required to do so under subsection (6); (b) give full and true answers to the best of that person's knowledge to any questions asked by the Senior Practitioner in the performance or exercise of any power, duty or function under this Act. Penalty: 60 penalty units.
The Governor in Council may on the recommendation of the Public Advocate appoint community visitors.
A community visitor— (a) holds office for a period of 3 years; (b) is eligible for re-appointment at the end of the term of office; (c) is entitled to be paid any fees and travelling and other allowances fixed by the Governor in Council; (d) is not in respect of the office of community visitor subject to the provisions of the Public Administration Act 2004.
A person can not be appointed as a community visitor if that person— (a) holds any appointment or employment with the Department; or (b) has any direct interest in any contract with the Department.
In nominating persons for appointment as community visitors, the Public Advocate must as far as practicable nominate an equal number of males and females.
The Governor in Council may specify terms and conditions of appointment in the instrument of appointment of a person as a community visitor.
The Governor in Council may on the recommendation of the Public Advocate remove a community visitor from office.
A person may resign from the office of community visitor by writing signed by that person and delivered to the Governor in Council.
The office of a community visitor becomes vacant if that community visitor— (a) becomes bankrupt; or (b) is convicted of an indictable offence or of an offence which, if committed in Victoria, would be an indictable offence; or (c) becomes incapable of performing the duties of the office of community visitor; or (d) is removed from office or resigns from office.
The functions of a community visitor are to visit any premises where a disability service provider is providing residential services and to inquire into— (a) the appropriateness and standard of premises for the accommodation of residents; (b) the adequacy of opportunities for inclusion and participation by residents in the community; (c) whether the residential services are being provided in accordance with the principles specified in section 5; (d) whether information is being provided to residents as required by this Act; (e) any case of suspected abuse or neglect of a resident; (f) the use of restrictive practices and compulsory treatment; (g) any failure to comply with the provisions of this Act; (h) any complaint made to a community visitor by a resident.
The functions of a community visitor in respect of an SDA enrolled dwelling that is the dwelling of an SDA resident in accordance with an SDA residency agreement are to visit the dwelling and to inquire into— (a) the appropriateness and standard of the SDA enrolled dwelling for the SDA resident; and (b) the adequacy of opportunities for inclusion and participation by the SDA resident in the community; and (c) whether the SDA enrolled dwelling is being provided in accordance with the Residential Tenancies Act 1997, the NDIS Act and any regulations, rules or instruments made under the NDIS Act; and (d) whether information is being provided to the SDA resident as required by the Residential Tenancies Act 1997, the NDIS Act and any regulations, rules or instruments made under the NDIS Act; and (e) any case of suspected abuse or neglect of the SDA resident; and (f) the use of a restrictive practice or compulsory treatment on the SDA resident; and (g) any failure by the SDA provider to comply with this Act, the Residential Tenancies Act 1997, the NDIS Act and any regulations, rules or instruments made under the NDIS Act; and (h) any complaint made to a community visitor by the SDA resident.
The functions of a community visitor in respect of a short-term accommodation and assistance dwelling and support provided by a registered NDIS provider to an NDIS participant at the short-term accommodation and assistance dwelling are to visit the dwelling and to inquire into— (a) the appropriateness and standard of the short-term accommodation and assistance dwelling for the NDIS participant; and (b) the adequacy of opportunities for inclusion and participation by the NDIS participant in the community; and (c) whether the short-term accommodation and assistance dwelling is being provided in accordance with the principles specified in section 4 of the NDIS Act; and (d) whether information is being provided to the NDIS participant as required by this Act, the NDIS Act and any regulations, rules or instruments made under the NDIS Act; and (e) any case of suspected abuse or neglect of the NDIS participant; and (f) the use of a restrictive practice or compulsory treatment on the NDIS participant; and (g) any failure by the registered NDIS provider to comply with the provisions of this Act, the NDIS Act and any regulations, rules or instruments made under the NDIS Act; and (h) any complaint made to a community visitor by the NDIS participant.
Subject to subsection (4), the functions of a community visitor in respect of an SDA enrolled dwelling let under a residential rental agreement (within the meaning of the Residential Tenancies Act 1997), are to visit the dwelling and to inquire into— (a) the appropriateness and standard of the SDA enrolled dwelling for the SDA resident; and (b) the adequacy of opportunities for inclusion and participation by the SDA resident in the community; and (c) whether the SDA enrolled dwelling is being provided in accordance with the Residential Tenancies Act 1997, the NDIS Act and any regulations, rules or instruments made under the NDIS Act; and (d) whether information is being provided to the SDA resident as required by the Residential Tenancies Act 1997, the NDIS Act and any regulations, rules or instruments made under the NDIS Act; and (e) any case of suspected abuse or neglect of the SDA resident; and (f) the use of a restrictive practice or compulsory treatment on the SDA resident; and (g) any failure by the SDA provider to comply with this Act, the Residential Tenancies Act 1997, the NDIS Act and any regulations, rules or instruments made under the NDIS Act; and (h) any complaint made to the community visitor by an SDA resident.
A community visitor must not perform any functions under subsection (3) unless one of the following persons has requested that a community visitor visit the SDA enrolled dwelling in accordance with section 131A for the purposes of the community visitor exercising functions under subsection (3)— (a) an SDA resident living in the SDA enrolled dwelling under a residential rental agreement (within the meaning of the Residential Tenancies Act 1997); or (b) a person on behalf of an SDA resident living in the SDA enrolled dwelling under a residential rental agreement (within the meaning of the Residential Tenancies
Any person who is appointed by the Minister or the Secretary for the purpose of any investigation in connection with the administration of this Act— (a) is by virtue of that office or appointment deemed to be a community visitor; and (b) has and may exercise all the powers conferred on a community visitor by this Act.
Subsection (1) does not require a person deemed to be a community visitor to perform any of the functions or duties of a community visitor.
The Community Visitors Board established by section 61 of the Intellectually Disabled
The Community Visitors Board consists of— (a) the Public Advocate; and (b) 2 community visitors elected in accordance with the regulations by community visitors.
The functions of the Community Visitors Board are to— (a) represent community visitors; (b) prepare and circulate publications explaining the role of community visitors; (c) supervise the training of community visitors; (d) report a matter to the Public Advocate or the Minister; (e) refer a matter under section 33; (f) prepare an annual report.
Without limiting the discretion of the Community Visitors Board to refer a matter to any other person, the Community Visitors Board may refer a matter reported by a community visitor to whichever of the following the Community Visitors Board considers is the appropriate person to deal with that matter— (a) the Secretary; (b) the Disability Services Commissioner; (c) the Senior Practitioner; (d) the Ombudsman; (e) the NDIS Quality and Safeguards Commission; (f) the NDIA; (g) the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012.
The community visitors who visit premises or NDIS dwellings in a particular region must at least twice a year submit a report to the Community Visitors Board on visits made in that region since the last report.
The Minister may require the Community Visitors Board to report to the Minister on any matter specified by the Minister at the time and in the manner directed by the Minister.
The Community Visitors Board may at any time submit a report to the Minister if the Community Visitors Board considers that any matter should be considered personally by the Minister.
A community visitor may at any time submit a report to the Community Visitors Board containing any recommendations that the community visitor considers should be considered by the Community Visitors Board.
The Community Visitors Board must as soon as practicable after the end of each financial year but not later than the following 30 September, submit to the Minister a report on the activities of community visitors during the financial year.
The Minister must cause the annual report of the community visitors to be laid before the Legislative Council and the Legislative Assembly before the expiration of the fourteenth sitting day of the Legislative Council or the Legislative Assembly as the case may be after the annual report has been received by the Minister.
Unless subsection (2) applies, a person who is or has been, at any time, a community visitor must not, either directly or indirectly make a record of, or divulge or communicate to any person, or make use of, any information that is or was acquired by the person because the person is or was appointed as a community visitor, for any purpose, except to the extent necessary for the person— (a) to perform any official duties; or (b) to perform or exercise any function or power under this Act. Penalty: 60 penalty units.
Subsection (1) does not prevent a person from— (a) producing a document to a court in the course of criminal proceedings or in the course of any proceedings under this Act or the Residential Tenancies Act 1997; or (b) divulging or communicating to a court, in the course of any proceedings referred to in paragraph (a), any matter or thing coming under the notice of the person in the performance of official duties or in the performance of a function or in the exercise of a power referred to in subsection (1); or (c) producing a document or divulging or communicating information that is required or permitted by any Act to be produced, divulged or communicated, as the case may be, if, where the document or information relates to the personal affairs of another person, that other person has given consent in writing. See also Part 5A of the Family Violence Protection Act 2008 in respect of the use and disclosure obligations of persons or bodies prescribed to be information sharing entities under that Act.
The Minister must ensure that a State Disability Plan is prepared— (a) as at 1 January 2013; and (b) at the end of each period of 4 years thereafter.
The State Disability Plan 2002-2012 as in existence before the commencement of this section has effect as if it had been prepared under this section.
The purpose of a State Disability Plan is to establish goals to assist in furthering the objectives and principles specified in this Act.
Without limiting the generality of subsection (3), a State Disability Plan must— (a) identify the needs of persons with a disability; (b) establish goals and priorities for the support of persons with a disability; (c) identify objectives and policy priorities for the development and delivery of services for persons with a disability; (d) identify strategies for achieving those objectives and priorities.
In preparing a State Disability Plan, regard must be had to the different needs of persons with different types of disabilities which may require different strategies.
A public sector body must ensure that a Disability Action Plan is prepared for the purpose of— (a) reducing barriers to persons with a disability accessing goods, services and facilities; (b) reducing barriers to persons with a disability obtaining and maintaining employment; (c) promoting inclusion and participation in the community of persons with a disability; (d) achieving tangible changes in attitudes and practices which discriminate against persons with a disability.
Any plan lodged by a public sector body or a Council with the Human Rights and Equal Opportunity Commission in compliance with Part 3 of the Commonwealth Disability Discrimination Act 1992 is to be taken to be a Disability Action Plan prepared by that public sector body or Council for the purposes of this section.
A public sector body must report on the implementation of their Disability Action Plan in its annual report.
If a Council determines to prepare a Disability Action Plan, the Disability Action Plan is to be prepared for the purposes referred to in subsection (1).
If a Council determines to prepare a Disability Action Plan or is taken to have prepared a Disability Action Plan under subsection (2), the Council must report on the implementation of the Disability Action Plan in its annual report under section 98 of the Local Government Act 2020. (5A) A Council must ensure that the matters referred to in subsection (1) are addressed in the Council Plan prepared under the Local Government Act 2020 if the Council— (a) has determined not to prepare a Disability Action Plan; and (b) is not taken to have prepared a Disability Action Plan under subsection (2).
In this section— Council has the same meaning as it has in section 3(1) of the Local Government Act 2020; public sector body means— (a) a Department within the meaning of section 4(1) of the Public Administration Act 2004; (b) a statutory authority which is prescribed for the purposes of this section; (c) a statutory corporation which is prescribed for the purposes of this section.
The Secretary must ensure that the Department maintains information systems for the purposes of enabling— (a) the planning, monitoring, evaluating, provision and funding of disability services for persons with a disability; (b) the Secretary to achieve the objectives and perform the functions conferred on the Secretary under this Act or any other law relating to disability.
Subsection (3) applies to— (a) a person who is or has been appointed to any office under this Act or employed or engaged under this Act; (b) a disability service provider; (ba) a former disability service provider; (bb) a person who is, or has been, employed or engaged by a disability service provider or former disability service provider; (bc) a person who otherwise provides, or has provided, services under this Act; (c) a person who is or has been a member of staff of the public service for the purposes of this Act.
A person or body to whom this subsection applies must not, directly or indirectly, disclose to any other person or body any information relating to the provision of disability services to any person that is gained by or given to that person or body in their official capacity and that identifies, or is likely to lead to the identification of, the person to whom the information relates. Penalty: 20 penalty units. (3A) Despite anything to the contrary in subsection (3), a person or body referred to in subsection (2) may disclose information about disability services or regulated disability services provided to a person with a disability to the following— (a) the Secretary to the department for which the Minister administering the Financial Framework (Supplementary Powers) Act 1997 of the Commonwealth is responsible; (b) the Secretary to the department for which the Minister responsible for the Commonwealth Continuity of Support Programme is responsible.
Subsection (3) does not prevent the disclosure of information— (a) to the extent that is reasonably required in connection with the performance of a duty or the exercise of a power or function under this or any other Act including without limiting the generality of this paragraph— (i) for the purpose of developing or maintaining and improving the information systems required to be maintained by subsection (1); (ii) for the purpose of planning, managing, monitoring, evaluating and improving the provision of disability services and which is of a statistical nature; (b) by a disability service provider to the Secretary of information of a statistical nature which the disability service provider is required to provide under this Act for the purpose of enabling the Secretary to perform functions conferred, and meet obligations imposed, on the Secretary under this Act or any Commonwealth Act; (c) with the consent of the person to whom the information relates or of that person's guardian or of that person's next-of-kin if that person is dead; (ca) to a supportive attorney under a supportive attorney appointment, within the meaning of the Powers of Attorney Act 2014; (cb) to a medical treatment decision maker within the meaning of the Medical Treatment Planning and Decisions Act 2016, to the extent that it is necessary to enable the medical treatment decision maker to make medical treatment decisions on behalf of the person to whom the information relates; (cc) to a support person within the meaning of the Medical Treatment Planning and Decisions Act 2016 to the extent that is necessary to enable the support person to carry out the functions of a support person under that Act; (cd) to a supportive administrator acting under a supportive administration order within the meaning of the Guardianship and Administration Act 2019; (ce) to a supportive guardian acting under a supportive guardianship order within the meaning of the Guardianship and Administration Act 2019; (d) to another person or body to whom subsection (3) applies, if the disclosure is reasonably required in connection with the provision by that other person or body of services under this Act to the person to whom the information relates; (e) to any person or body to the extent that is necessary in connection with the provision of care or treatment to the person to whom the information relates if the person to whom the information relates is unable to consent to the disclosure and without the disclosure he or she may, in the opinion of the discloser, suffer detriment; (f) to a court or tribunal in the course of a proceeding before it; (g) to the Minister; (h) to the Secretary; (i) to the Disability Services Commissioner; (j) to the Senior Practitioner; (k) to the Public Advocate; (ka) to the Commission for Children and Young People (established by section 6 of the Commission for Children and Young People Act 2012) if the information is a reportable allegation within the meaning of the Child Wellbeing and Safety Act 2005; (l) to a person or body to whom in the opinion of the Minister it is in the public interest that the disclosure be made; (m) to the NDIA and to any prescribed person or body, and to any person or body of a prescribed class of person or body, for the purposes of the NDIS; (n) to the Secretary to the department for which the Minister administering the Financial Framework (Supplementary Powers) Act 1997 of the Commonwealth is responsible; (o) to the Secretary to the department for which the Minister responsible for the Commonwealth Continuity of Support Programme is responsible.
For the purposes of subsection (4)(a), "any other Act" does not include the Health Privacy Principles in the Health Records Act 2001 or Part 3 or 5 of that Act.
Despite anything to the contrary in subsection (3), any person or body is authorised, for any purpose for or with respect to the NDIS or its implementation, to use the following information or to transfer or disclose that information to the NDIA, the NDIS Quality and Safeguards Commission, an NDIS provider or any prescribed person or body or any person or body of a prescribed class of person or body— (a) information about— (i) disability services, regulated disability services or any prescribed services; (ii) services provided by persons or bodies that are former disability service providers, former regulated service providers or providers that have ceased providing prescribed services; (b) information about the provision of disability services or regulated disability services, including information about the services any person requires, the carer of a person or any support structure of a person; (c) information about any persons who are or were employed or engaged for the purpose of providing disability services or regulated disability services or services under the NDIS; (d) information about persons who received or are receiving disability services, regulated disability services or services under an NDIS plan; (e) information about current and former disability service providers, regulated service providers or NDIS providers; (f) information about compliance by current and former disability service providers with the relevant standards determined by the Minister under section 97; (g) information about incidents reported to the Secretary arising from the provision of disability services or regulated disability services; (h) information about complaints relating to disability services or regulated disability services; (i) information about the use of restrictive practices or compulsory treatment.
A person or body to whom information is disclosed under subsection (6) is authorised to use or transfer that information for any purpose for or with respect to the NDIS or the implementation of the NDIS.
A person or body to whom information is disclosed under subsection (6) must not use or transfer that information unless— (a) the person or body does so for the purpose for which the information has been disclosed to the person or body; or (b) if the person or body is authorised by or under an Act or other law to do so. Penalty: 20 penalty units.
Subsections (3A), (6), (7) and (8) have effect despite any other Act or law, other than the Charter of Human Rights and Responsibilities Act 2006. * * * * *
The Secretary is authorised to transfer or disclose any information about worker screening to the following in relation to a person who provided, provides, or seeks to provide, disability services or services in accordance with an NDIS plan— (a) the NDIS Quality and Safeguards Commission; (b) the Disability Worker Registration Board; (c) the Victorian Disability Worker Commission; (d) the Victorian Disability Worker Commissioner; (e) the Secretary to the Department of Justice and Community Safety, for the purposes of performing functions in relation to screening checks under the Worker Screening (f) an NDIS worker screening unit within the meaning of the Worker Screening (g) the relevant disability services provider; (h) the relevant registered NDIS provider.
The Secretary may transfer or disclose information about worker screening to an entity referred to in subsection (1) at the Secretary's own initiative or on request of the entity.
For the purposes of this section— information about worker screening means one or more of the following— (a) whether or not the person is the subject of a prohibition order in relation to health services or disability services or other services involving the care of children that is made under another Act; (b) whether or not the Secretary has information relating to the person's suitability to provide disability services to persons with a disability or services under the NDIS to NDIS participants and, if so, that information which includes but is not limited to the following— (i) whether or not a person has been assessed as posing an unacceptable risk to persons with a disability or NDIS participants; (ii) whether or not a notification or complaint has been made about the person that is relevant to the person's suitability to provide disability services to persons with a disability or services under the NDIS to NDIS participants; (iii) details of any notification or complaint or investigation made into a notification or complaint referred to in subparagraph (ii); (iv) whether or not the person has been screened in relation to the person's suitability to provide disability services to persons with a disability or services under the NDIS to NDIS participants.
A person may apply to the Secretary for registration of the person as a disability service provider.
A person may apply to the Secretary on behalf of an unincorporated body for registration of the unincorporated body as a disability service provider.
The Secretary may require a person or an unincorporated body who has applied for funding under this Act to apply for registration as a disability service provider before any funds are provided.
An application for registration as a disability service provider must be in the form approved by the Secretary.
The Secretary may register a person or an unincorporated body as a disability service provider if the Secretary is satisfied that— (a) the person or unincorporated body can provide a service for persons with a disability; and (b) the service can be provided in compliance with the requirements of this Act.
The Secretary may impose at any time any conditions or restrictions that the Secretary considers appropriate on the registration of a disability service provider and may vary at any time any condition or restriction so imposed or impose a new condition or restriction.
Without limiting the generality of subsection (2), the Secretary may impose conditions with respect to staffing arrangements and the appointment, numbers and qualifications of persons to be employed or engaged by the disability service provider in the provision of disability services.
Unless revoked, the registration of a disability service provider has effect for a period of 3 years or a longer period as determined by the Secretary in each case.
A registered disability service provider may apply to the Secretary for renewal of registration as a disability service provider.
An application for renewal of registration as a disability service provider must be in the form approved by the Secretary.
Unless revoked, the renewal of registration of a disability service provider has effect for a period of 3 years or a longer period as determined by the Secretary in each case.
The Secretary may revoke the registration of a disability service provider if— (a) the disability service provider has made a written application to the Secretary for the registration to be revoked; or (b) the disability service provider is a registered NDIS provider and— (i) has not received or has ceased receiving funds for the provision of disability services under this Act; or (ii) is not a party to a contract with the Secretary under section 10 to provide services to a person with a disability; or (c) in any other case, the Secretary considers it appropriate to do so.
For the purposes of subsection (1), the Secretary may have regard to the following— (a) the Secretary has ceased providing funding to the disability service provider; (b) the Secretary has terminated a contract with the disability service provider for the provision of disability services; (c) the disability service provider has failed to comply with requirements under this Act; (d) any other circumstances that the Secretary considers relevant.
The Secretary must revoke the registration of a disability service provider if the disability service provider has ceased to provide disability services.
The Secretary must not refuse an application under section 40 or 42 unless the Secretary— (a) has given a written notice to the person or disability service provider, as the case requires, making the application that specifies— (i) the proposed decision and the reasons for the proposed decision; and (ii) that the person or disability service provider, as the case requires, may make a submission in writing within 14 days after the notice is given; and (b) has considered any submission made by the person or disability service provider.
The Secretary must not revoke a registration under section 43(1)(b) or (c) unless the Secretary— (a) has given a written notice to the disability service provider that specifies— (i) the proposed decision and the reasons for the proposed decision; and (ii) that the disability service provider may make a submission in writing within 14 days after the notice is given; and (b) has considered any submission made by the disability service provider.
If the Secretary revokes a registration under section 43(1)(a) or (b), the disability service provider must give to every person to whom it provides disability services a written notice containing any information required by the Secretary.
A person or a disability service provider may apply to VCAT for a review of a decision by the Secretary— (a) to refuse an application under section 40; or (b) to refuse an application under section 42; or (c) to revoke the registration of a disability service provider under section 43(1)(c).
An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the person or the disability service provider requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the disability service provider or the person or the disability service provider is informed under section 46(5) of that Act that a statement of reasons will not be given.
The Secretary must keep a register of disability service providers.
The Secretary must make available for public inspection a list of disability service providers.
The Secretary must include the following information in the register of disability service providers in respect of each disability service provider— (a) the name of the disability service provider; (b) the address of the disability service provider; (c) contact information for the disability service provider.
The Secretary is not required to include the details of any natural person in the register of disability service providers.
A disability service provider must notify the Secretary in writing within 14 days if there is a change to the information recorded in the register of disability service providers in respect of that disability service provider. Penalty: 10 penalty units.
A person or body receiving funds for the provision of a disability service under the Intellectually Disabled Persons' Services Act 1986 or the Disability Services Act 1991 immediately before the commencement of section 222 is deemed to be registered as a disability service provider under this Act.
Unless revoked in accordance with section 43, a registration by virtue of subsection (1) continues in effect irrespective of whether or not the agreement under which the funds are provided ends or is terminated.
Despite anything to the contrary in section 41(1) and subject to subsection (4), the Secretary may register as a disability service provider— (a) a person or body; or (b) a person or body belonging to a class of persons or bodies specified in the relevant notice referred to in subsection (6).
The Secretary may impose a condition on a registration referred to in subsection (3) that the operation of the registration is limited to those provisions of this Act that are specified in the notice referred to in subsection (5) or (6), as the case requires.
Before registering a person or body under subsection (3)(a), the Secretary must give written notice to the person or body of the Secretary's intention to register the person or body.
Before registering a person or body under subsection (3)(b), the Secretary must publish in the Government Gazette notice of the Secretary's intention to register as disability service providers, persons or bodies belonging to a specified class of persons or bodies.
The Secretary may exempt a disability service provider from complying with any requirement of this Act that is specified in a written notice provided to the disability service provider.
The Secretary, by notice published in the Government Gazette, may exempt disability service providers belonging to a class of disability service providers from complying with any requirement of this Act that is specified in the notice.
A person with a disability or a person on behalf of a person with a disability may request disability services from a disability service provider.
If a disability service provider receives a request under subsection (1), the disability service provider may— (a) agree to the request; or (b) refuse the request.
For the purpose of making a decision on a request under subsection (1), the disability service provider may require— (a) the person making the request to provide more information; (b) the person with a disability to undergo an assessment.
If a disability service provider refuses a request under subsection (2)(b), the disability service provider must within 14 days of deciding to refuse the request advise in writing the person making the request— (a) that the request has been refused and the reason for the refusal; and (b) if the reason for the refusal is that the disability service provider is of the opinion that the person for whom the disability services are requested does not have a disability, that the person in respect of whom disability services have been requested has a right to have the issue of whether the person has a disability decided by the Secretary.
If a disability service provider agrees to provide disability services without requiring an assessment of the person, the provision of disability services to the person is not of itself to be taken to be evidence that the person to whom the disability services are provided is a person with a disability.
A person to whom section 49(4)(b) applies may request the Secretary to decide whether or not the person has a disability.
For the purposes of making a decision under this section, the Secretary may require the person making the request and the disability service provider to provide any relevant information.
The Secretary may determine the appropriate process to enable the Secretary to make a decision as to disability.
If the Secretary decides that a formal assessment is necessary, the Secretary must ensure that the formal assessment is commenced within 30 days of receiving the request for a decision.
Despite subsection (4), the Secretary may— (a) defer the commencement of a formal assessment for up to 3 months after receiving the request for a decision; or (b) discontinue any uncompleted formal assessment and defer the undertaking of a further formal assessment for up to 3 months after discontinuing the formal assessment— if the Secretary believes on reasonable grounds that any formal assessment completed before then is unlikely to establish reliably that the person has a disability.
The Secretary must within 14 days of making a decision as to whether a person has a disability advise in writing the person who made the request— (a) of the decision; and (b) that the person can apply to VCAT for a review of the decision.
An application for a review must be made within 28 days after the person receives the advice under subsection (6).
On an application for a review under subsection (7), VCAT may— (a) confirm the decision of the Secretary; or (b) order that the decision of the Secretary be substituted by the decision of the Tribunal; or (c) remit the matter to the Secretary for further consideration in accordance with this section.
A decision of VCAT under subsection (8)(b) has effect as if it were the decision of the Secretary.
A decision by the Secretary under section 50 that a person has a disability does not of itself entitle the person to the provision of disability services.
Planning for the purposes of this Division should be undertaken to the extent to which it is reasonably practicable in accordance with the principles specified in subsection (2).
Planning should— (a) be individualised; (b) be directed by the person with a disability; (c) where relevant, consider and respect the role of family, carers and other persons who are significant in the life of the person with a disability; (d) where possible, strengthen and build capacity of families and carers to support children with a disability; (e) consider the availability to the person with a disability of informal support and other support services generally available to any person in the community; (f) support communities to respond to the individual goals and needs of persons with a disability; (g) be underpinned by the right of the person with a disability to exercise control over their own life; (h) advance the inclusion and participation in the community of the person with a disability with the aim of achieving their individual aspirations; (i) maximise the choice and independence of the person with a disability; (j) facilitate tailored and flexible responses to the individual goals and needs of the person with a disability; (k) provide the context for the provision of disability services to the person with a disability and where appropriate coordinate the delivery of disability services where there are more than one disability service providers. * * * * *
A person with a disability or a person on their behalf may request the disability service provider to provide assistance with planning.
The disability service provider must within a reasonable period of receiving the request for assistance arrange for the assistance to be provided.
This section applies if a person is receiving on- going disability services.
If this section applies, the disability service provider must, in consultation with the person with a disability, ensure that a support plan identifying the disability services being provided to that person is prepared within 60 days of the person commencing to regularly access the disability services.
While a person is receiving on-going disability services, a support plan— (a) may be reviewed at any time by the disability service provider or at the request of the person with a disability or a person on their behalf; (b) must be reviewed at least once during each period of 3 years commencing from when the support plan is first prepared.
If a person ceases to receive on-going disability services, the support plan is terminated.
Without derogating from the general application of section 53, if a person with an intellectual disability or a person on their behalf has requested disability services from a disability service provider, the disability service provider must offer assistance with planning in accordance with the principles specified in section 52.
If an offer of assistance under subsection (1) is accepted, the disability service provider must arrange for the assistance to be provided within a reasonable period after the offer is accepted. * * * * *
The purpose of this Part is to create specific rights for persons residing in residential services and to impose specific obligations on disability service providers providing residential services— (a) whilst enabling the support needs of persons with a disability to be met and the obligations of disability service providers to be fulfilled; (b) which balance the rights and needs of individuals and the demands of providing disability services throughout the State of Victoria; (c) which apply regardless of whether the disability service provider is the owner or landlord of the property where the residential services are provided.
The Residential Tenancies Act 1997 does not apply in respect of residential services.
The regulations may provide that a prescribed class of disability service provider is, subject to any prescribed conditions, exempted from complying with prescribed provisions of this Part specified in respect of that prescribed class of disability service provider.
This Part does not apply in respect of persons residing in residential treatment facilities and the provision of residential services in residential treatment facilities.
This Part does not apply in respect of SDA residents residing in SDA enrolled dwellings.
This Part does not apply to disability service providers to the extent that the disability service provider is an SDA provider providing SDA enrolled dwellings to SDA residents.
Subject to subsection (1A), a disability service provider providing residential services must— (a) give a person with a disability a residential statement in writing when they commence residing at the residential service; and (b) provide a copy of the residential statement to the resident's guardian or the resident's administrator, if any. (1A) A disability service provider providing residential services is not required to give a residential statement under subsection (1) when a person with a disability commences residing at the residential service if— (a) the person with a disability is only residing at the residential service on a short term basis; and (b) the disability service provider is providing the accommodation for the purpose of providing respite to a carer of the person with a disability. (1B) Nothing in subsection (1A) affects the obligation of a disability service provider to provide information under section 89.
The residential statement must specify— (a) the period to which the residential statement relates; (b) details of the residential services to be provided; (c) the name and contact details of the disability service provider; (d) a statement as to the amount of the residential charge, what components will be provided and when and how the amount is to be paid; (e) any conditions which apply to the provision of the residential services; A resident may have a behaviour support plan with which the resident must comply. (f) information relating to a matter which is prescribed for the purposes of this section.
A residential statement may include other information.
A residential statement must not include information that is inconsistent with this Act.
If any information provided under subsection (3) is inconsistent with this Act or with the information required to be provided under subsection (2), the information cannot be used or relied upon.
A statement of the duties of the disability service provider and the rights and duties of residents in the form approved by the Secretary must be attached to the residential statement.
The statement of resident's rights and duties must state the rights and duties of a resident under this Act including— (a) the right to see a community visitor; (b) the right to make a complaint; (c) the procedures for making a complaint or seeking a review under this Act.
The disability service provider must give the resident reasonable notice in writing of any change in the information provided in the residential statement.
If notice of any change in the information provided in the residential statement is given in accordance with another provision of this Act, the notice is also to be taken to have been given under subsection (8).
The information provided in a residential statement is to be taken to have been updated to include the information provided under subsection (8). * * * * *
If a disability service provider fails to provide information required under this section or fails to give reasonable notice of any change in the information, the disability service provider cannot rely on that information to enforce a provision of this Act.
A disability service provider providing residential services must— (a) take reasonable measures to ensure that residents are treated with dignity and respect and with due regard to their entitlement to privacy; (b) ensure that the premises in which the residential services are provided and any fixtures, furniture and equipment provided are maintained in good repair; (c) minimise any inconvenience or disruption to residents when undertaking repairs or renovations; (d) take reasonable steps to ensure that any repairs or renovations are completed in a timely and reasonable manner; (e) subject to subsection (2), not unreasonably limit or interfere with a resident's access to his or her room or to the toilet, bathroom or other common areas in the premises which are available for the resident's use; (f) not unreasonably interfere with a resident's right to privacy or proper use and enjoyment of the premises; (g) take reasonable measures to ensure the security of a resident's property; (h) be accessible to residents by— (i) providing the contact details of the disability service provider; and (ii) ensuring that the times during which the disability service provider can be contacted are reasonable having regard to all the circumstances including the kind of support services being provided to residents; (i) ensure that residents receive any information which they are required to be given under this Part.
For the purposes of subsection (1)(e), a resident's access is not unreasonably limited or interfered with if the limitation or restriction is imposed by the disability service provider in accordance with— (a) the resident's behaviour support plan which has been lodged with the Senior Practitioner; or (b) the resident's treatment plan; or (c) a direction in respect of the resident given to the disability service provider by the Senior Practitioner, including a direction requiring an amendment to the resident's behaviour support plan or treatment plan.
A disability service provider must implement strategies to minimise the impact on other residents in the residential service of a limitation or restriction to which subsection (2) applies.
The duties imposed on a disability service provider by this section are to be given effect to having regard to the need to ensure that there is a reasonable balance between the rights of residents and the safety of all the residents in the residential service.
A resident must— (a) use the premises for residential purposes only unless the resident has obtained the consent in writing of the disability service provider to the use by the resident of the room for another purpose; (b) pay the specified charges on the due date and in the specified manner; (c) maintain their room and any common areas in a manner that does not create a fire, health or safety hazard; (d) notify the disability service provider of any damage caused knowingly and intentionally which is not the result of fair wear and tear; (e) contribute to the cost of repairing damage notified under paragraph (d).
A resident must not— (a) use the premises for a purpose that is illegal at common law or under an Act; (b) knowingly and intentionally do anything which interferes with the right of other residents to privacy or the proper use and enjoyment of the premises; (c) knowingly and intentionally damage or destroy any part of the premises; (d) install any fixtures in the premises without first obtaining the consent in writing of the disability service provider.
After giving the resident 24 hours notice in writing of the intention to do so and the reason, a disability service provider may enter a resident's room— (a) to undertake refurbishment, maintenance or repairs or for the purpose of preparing for refurbishment, maintenance or repairs; (b) for the purpose of showing the room to a prospective resident; (c) for the purpose of showing the room to a prospective buyer or lender because the residential service is to be sold or used as security for a loan; (d) for valuation or insurance purposes.
A disability service provider may enter a resident's room without giving notice only if— (a) the resident agrees to the entry at the time entry is sought; or (b) there is an emergency; or (c) if the disability service provider believes on reasonable grounds that entry is necessary to protect the health or safety of the resident or of any other person on the premises; or (d) if the disability service provider believes on reasonable grounds that the resident has abandoned the room; or (e) it is necessary to do so to undertake urgent repairs; or (f) it is necessary to do so to provide support services or to provide support as otherwise specified in the resident's support plan; or (g) entry is required to implement the resident's behaviour support plan or treatment plan.
For the purposes of subsection (2)(f), support services means— (a) assistance with one or more of the following— (i) health needs; or (ii) bathing, showering or personal hygiene; or (iii) toileting; or (iv) dressing or undressing; or (v) meals; or (b) physical assistance for persons with mobility problems; or (c) assistance for persons who are mobile but require some form of supervision or assistance; or (d) development of independent living skills; or (e) provision of developmental or emotional support.
This section does not affect the exercise of a right of entry conferred on the Senior Practitioner, a Community Visitor, the Disability Services Commissioner or the Secretary by or under this Act.
A disability service provider exercising a right of entry under this Division— (a) must do so in a reasonable manner; and (b) must not stay in the room longer than is necessary to achieve the purpose of the entry without the resident's consent.
Except in accordance with this Act, a person must not— (a) require or force or attempt to require or force a resident to vacate his or her room; or (b) take or attempt to take possession of a room in which a resident resides. Penalty: 20 penalty units.
Except in accordance with this Act, a person must not, for the purposes of causing a resident to abandon a room— (a) interfere with the proper use and enjoyment by the resident of the room; or (b) do any other act or thing intended or designed to cause the resident to abandon the room. Penalty: 20 penalty units.
This section does not apply to a restriction or limitation to which section 58(2) applies.
This Division applies in respect of a group home in addition to any other provisions that apply generally in respect of the provision of residential services.
The Minister may by a notice published in the Government Gazette declare a residential service to be a group home.
If a residential service declared to be a group home is managed by the Secretary, the Secretary is the disability service provider in respect of that group home for the purposes of this Division.
A disability service provider may charge a residential charge for the provision to a resident of residential services in a group home.
The residential charge is to consist of an amount for the components which are provided to the resident in accordance with the residential statement.
The Secretary may make and publish guidelines with respect to residential charges.
A disability service provider must give at least
Subject to subsection (3), a disability service provider must not increase the rent component of the residential charge payable by a resident at intervals of less than 6 months.
If a disability service provider provides an additional service item to the resident at the resident's request, the disability service provider may increase the residential charge without complying with this section if the amount of the increase relates only to the services component.
Any proposed increase in the residential charge made in contravention of this section is invalid.
A disability service provider must not require a resident to pay the residential charge more than 30 days in advance.
A resident may pay the residential charge in the form agreed with the disability service provider. The form of payment may include cash, cheque, electronic payment or direct debit.
A disability service provider must give a written receipt in accordance with this section to the person making a payment of the residential charge— (a) immediately, if the payment is made in person; (b) if the payment is not made in person and a written receipt is requested at the time the payment is made, within 30 days of receiving the payment. Penalty: 10 penalty units.
A receipt under this section must— (a) be signed by the disability service provider; (b) state— (i) the name of the resident; (ii) the name of the disability service provider; (iii) the location of the group home; (iv) the date the payment is received; (v) the period in respect of which the payment was made; (vi) the amount paid; (vii) whether the payment was made for the rent component or the services components or both components.
If the payment is not made in person and a written receipt is not requested, the disability service provider must keep a record of the payment of a residential charge until the earlier of— (a) the end of 12 months after receiving the payment; or (b) if a resident requests a copy of the record before the end of 12 months after making the payment, the provision of a copy of the record to the resident. Penalty: 5 penalty units.
The disability service provider must provide a copy of a record requested in accordance with subsection (3)(b) within 30 days of receiving the request. Penalty: 5 penalty units.
For the purposes of subsection (3), a record must contain information which enables the details specified in subsection (2)(b) to be identified.
The regulations may provide that a prescribed class of disability service provider is exempted from complying with subsection (1), (2) or (3) subject to any conditions which may be prescribed.
If a disability service provider reduces the service items provided in the services component included in a residential charge, the disability service provider must reduce the residential charge by— (a) the amount agreed between the disability service provider and the resident; or (b) if agreement cannot be reached, an amount determined by VCAT on an application by the disability service provider or the resident.
In determining an amount under subsection (1)(b), VCAT must have regard to— (a) what other residents in the group home are being charged for those service items; (b) guidelines issued by the Secretary for the purposes of section 65.
If VCAT determines an amount under subsection (1)(b), it may also order that— (a) the reduction in the residential charge is to take effect from the time the disability service provider reduced the service items provided to the resident; (b) the disability service provider is to refund to the resident any excess residential charge paid by the resident from the time the disability service provider reduced the service items provided to the resident until the date of the order.
In this section, a reduction in the service items provided in the services component included in a residential charge includes— (a) a reduction of a service item by reducing the level or range of services provided in that item; (b) a termination in the provision of a service item.
If a resident has a dispute in respect of a notice of increase in the residential charge, the resident may apply to VCAT for a review of the decision of the disability service provider to issue the notice of increase in the residential charge.
An application to VCAT under subsection (1) must be made within 28 days of the issue of the notice of increase under section 66.
Subject to section 72A, on an application made under section 71, VCAT may— (a) make an order declaring that the proposed residential charge is excessive; (b) make an order directing that for the period specified in the order the residential charge cannot exceed the amount specified in the order; (c) make orders under paragraphs (a) and (b); (d) dismiss the application.
For the purposes of subsection (1), VCAT must have regard to— (a) the amount paid by other residents in the same premises for the rent component and the service items provided in the services component included in the proposed residential charge; (b) the amount payable by residents of similar group homes in similar locations for similar premises and service items provided in the services component; (c) the state of repair and general condition of the premises and the room; (d) the number of increases in the preceding
(e) any changes in the condition of the room or the service items provided in the services component since the resident commenced residency; (f) any variation in the cost of providing the service items provided in the services component; (g) any improvements made to the room that should not result in an increase because they were made by or on behalf of the resident; (h) guidelines issued by the Secretary for the purposes of section 65.
For the purposes of subsection (1)(a), a residential charge is not to be considered to be excessive if the charge, as an annual amount, does not exceed the relevant prescribed amount.
An order cannot be made under subsection (1)(b) which specifies an amount that is less than the amount which the resident was being charged before notice of the proposed increase was given.
Sections 50(3) and 51(1), (2) and (5) of the Victorian Civil and Administrative Tribunal Act 1998 do not apply in relation to a proceeding for review of a decision to issue a notice of a proposed increase in a residential charge.
Without limiting any other means of determining an amount for the purposes of subsection (3), the regulations may prescribe an amount by reference to any specified pension or allowance payable under Commonwealth law, including by use of a formula.
VCAT must dismiss an application under section 71 if the proposed charge— (a) does not exceed the relevant prescribed amount referred to in section 72(3); and (b) does not exceed the amount determined in accordance with the relevant formula.
For the purposes of subsection (1)(b), the relevant formula is— (a) if the previous charge was a charge based on DSP only and the proposed charge is a charge based on CRA and DSP— (PC × (D 1 ÷ D 2 )) + C where— is the maximum DSP on the day on which the notice is issued; is the maximum DSP on the previous charge day; (b) if the previous charge was a charge based on CRA and DSP and the proposed charge is a charge based on CRA and DSP— ((PC C 1 ) × (D 1 ÷ D 2 )) + C 2 where— is the amount that was— (i) included in the previous charge; and (ii) determined on the basis of the whole or any part of Commonwealth rent assistance; is the maximum DSP on the day on which the notice is issued; is the maximum DSP on the previous charge day; is the maximum CRA on the day on which the notice is issued multiplied by 26; or (c) in any other case— PC × (D 1 ÷ D 2 ) where— is the maximum DSP on the day on which the notice is issued; is the maximum DSP on the previous charge day.
In determining whether to dismiss the application under this section, VCAT must not have regard to the matters referred to in section 72(2).
In this section— charge based on CRA and DSP means a residential charge— (a) determined on the basis of— (i) the whole or any part of Commonwealth rent assistance; and (ii) the whole or any part of the Commonwealth disability support pension; and (b) charged to a resident who receives Commonwealth rent assistance; charge based on DSP only means a residential charge— (a) determined on the basis of the whole or any part of the Commonwealth disability support pension and not on the basis of the whole or any part of Commonwealth rent assistance; and (b) charged to a resident who does not receive Commonwealth rent assistance; Commonwealth disability support pension means an amount determined in accordance with Part 2.3 of the Social Security Act 1991 of the Commonwealth; Commonwealth rent assistance means an amount determined in accordance with Part 3.7 of the Social Security Act 1991 of the Commonwealth; maximum CRA means, in relation to a day, the maximum rent assistance, within the meaning of section 1070L of the Social Security Act 1991 of the Commonwealth as in force on that day, that applies to a person who is, within the meaning of that Act— (a) not a member of a couple; and (b) not a single person sharing accommodation; maximum DSP means, in relation to a day, the maximum basic rate, within the meaning of point 1064-B1 of the Social Security Act 1991 of the Commonwealth as in force on that day, that applies to a person who is not a member of a couple (within the meaning of that Act); previous charge means the residential charge, as an annual amount, that a notice under section 66 proposes to increase; previous charge day means the day on which the residential charge was set at, or increased to, the previous charge; proposed charge means the residential charge, as an annual amount, that would result from the residential charge being increased as proposed by a notice under section 66.
Pending the decision of VCAT under section 72, the resident must pay, from the time the proposed increase is to apply whichever is the lesser of— (a) the increased residential charge specified in the notice of increase under section 66; or (b) 110% of the residential charge payable immediately before the notice of increase under section 66 was given.
If VCAT makes an order under section 72(1), other than an order dismissing the application, VCAT may also make an order— (a) requiring that any excess residential charge paid by the resident from the time that the increase took effect until the date of the order be refunded; and (b) specifying the procedure for the refund to the resident.
A disability service provider may give a resident a written notice of temporary relocation from a group home if— (a) the resident by act or omission endangers the safety of other residents or staff of the group home; (b) the resident is causing serious disruption to the proper use and enjoyment of the premises by other residents; (c) the resident is a danger to themselves and the disability service provider cannot continue to support the resident in the group home; (d) it is for the resident's safety or well-being; (e) the resident has knowingly or intentionally damaged the room or the premises; (f) the resident has used the premises for a purpose that is illegal at common law or under an Act; (g) the premises is not suitable for the provision of disability services; (h) the disability service provider intends to repair the room immediately after the notice of temporary relocation has effect and has obtained all necessary permits and consents to carry out the work and the work cannot be properly carried out unless the resident vacates the room; (i) the level and kind of support services provided in the group home is not appropriate to the needs of the resident because of a change in the resident's support needs.
A notice of temporary relocation— (a) has effect immediately it is given or from the time specified in the notice of temporary relocation; (b) must specify a relocation period ending not more than 90 days after the date on which the notice has effect.
If— (a) the proposed repairs will affect a resident's room but will not affect all the rooms in a group home; and (b) a room equivalent to the resident's room at an equivalent residential charge is available in the group home— the disability service provider must not give the notice under subsection (1)(h) unless the disability service provider has first offered an equivalent room to the resident and the resident has refused to occupy that room in place of the resident's current room.
The disability service provider must notify the Secretary and the Public Advocate of the details of a notice of temporary relocation within
During the relocation period specified under subsection (2), the resident is excluded from the room or the group home as specified in the notice of temporary relocation and is to be relocated by the disability service provider in alternative accommodation.
The disability service provider may seek the assistance of the Secretary to obtain suitable alternative accommodation for the resident who is to be relocated.
Except as provided in subsection (8), a disability service provider must not use the room for another resident during the relocation period specified in the notice of temporary relocation.
If the notice of temporary relocation was given on a ground other than the ground specified in subsection (1)(h), the room may only be used— (a) for emergency purposes; or (b) on a short term basis for the purpose of providing respite to a carer of a person with a disability.
At the expiry of a notice of temporary relocation, a resident is entitled to return to the group home unless a notice to vacate has been given under section 76.
If the notice of temporary relocation was given on a ground other than the ground specified in subsection (1)(h), the disability service provider must ensure that if a review of the resident's support plan has not been conducted in the period of 3 months before the notice of temporary relocation was given, a review of the resident's support plan is completed under section 54 before the notice of temporary relocation expires.
If the notice of temporary relocation was given on a ground specified in subsection (1)(a), (1)(b), (1)(c), (1)(e) or (1)(f), the disability service provider must ensure that— (a) if a review of the resident's behaviour support plan has not been conducted in the period of 3 months before the notice of temporary relocation was given, that a review of the resident's behaviour support plan is completed before the notice of temporary relocation expires; or (b) if the resident does not have a behaviour support plan, that a behaviour support plan is prepared before the notice of temporary relocation expires.
During the period that a resident is relocated to alternative accommodation, including another group home, the resident is to be taken to be accommodated in emergency or transitional housing and Division 2 does not apply in respect of that accommodation.
The disability service provider must take reasonable steps to resolve the matter giving rise to the issue of the notice of temporary relocation as soon as is reasonably possible in the circumstances.
The taking of reasonable steps to resolve the matter giving rise to the issue of the notice of temporary relocation does not affect the continued application of that matter as the ground for the issue of the notice of temporary relocation.
A residency in a group home is terminated— (a) by agreement in writing between the disability service provider and the resident; (b) if the disability service provider gives the resident a notice to vacate in accordance with section 76, on the earliest of the following days— (i) the day on which the resident vacates the room and group home; or (ii) the day specified in a possession order made under section 84 in relation to the notice to vacate as the day by which the resident must vacate the room and group home; (c) by notice of intention to vacate given to the disability service provider by, or on behalf of, the resident in accordance with section 80; (d) if the resident dies; (e) if the resident has abandoned the room; (f) if the resident moves to another principal place of residence without giving notice of intention to vacate to the disability service provider; (g) if the resident becomes subject to a criminal order or a supervised treatment order which prevents the resident from residing in the premises for a period of more than 3 months; (h) if VCAT makes an order terminating the residency.
A disability service provider may give a resident a written notice to vacate a group home if— (a) the resident by act or omission endangers the safety of other residents or staff of the group home; (b) the resident is causing serious disruption to the proper use and enjoyment of the premises by other residents; (c) the resident is a danger to themselves and the disability service provider cannot continue to support the resident in the group home; (d) it is for the resident's safety or well-being; (e) the resident has knowingly or intentionally damaged the room or the premises; (f) the resident has used the premises for a purpose that is illegal at common law or under an Act; (g) the resident has failed to pay the residential charge; (h) the disability service provider intends to repair, renovate, reconstruct or demolish the premises immediately after the termination date and has obtained all necessary permits and consents to carry out the work and the work cannot be properly carried out unless the resident vacates the group home; (i) disability services will not continue to be provided at the premises; (j) the premises is not suitable for the provision of disability services; (k) the level and kind of support services provided in the group home is not appropriate to the needs of the resident because of a change in the resident's support needs; (l) the premises is to be sold or offered for sale with vacant possession; (m) no reason is to be specified.
A notice to vacate on a ground specified under paragraph (a), (b), (c), (d), (e), (f), (j) or (k) of subsection (1)— (a) cannot be given unless a temporary relocation notice issued on the same ground has already been given at least 24 hours previously; and (b) may specify a termination date that is not less than 28 days after the date on which the notice is given.
A notice to vacate on a ground specified under paragraph (g), (h), (i) and (l) of subsection (1) may specify a termination date that is not less than 60 days after the date on which the notice is given.
A notice to vacate under paragraph (m) of subsection (1) may specify a termination date that is not less than 120 days after the date on which the notice is given.
If— (a) the proposed repairs, renovations or reconstruction will affect a resident's room but will not affect all the rooms in a group home; and (b) a room equivalent to the resident's room at an equivalent residential charge is available in the group home— the disability service provider must not give the notice under subsection (1)(h) unless the disability service provider has first offered an equivalent room to the resident and the resident has refused to occupy that room in place of the resident's current room.
A notice to vacate under this section— (a) must specify the ground on which the notice is given; (b) must state the termination date in accordance with this section; (c) must be signed by the disability service provider; (d) must be given to— (i) the resident; and (ii) the resident's guardian or the resident's administrator, if any.
The disability service provider must notify the Secretary and the Public Advocate of the details of a notice to vacate within 24 hours of the notice to vacate being given.
For the purposes of subsection (1)(k), "support services" has the same meaning as it has in section 60(3).
If a notice to vacate is issued while a notice of temporary relocation is in force— (a) the temporary notice to relocate continues in force only until the end of the period of notice applying to the notice to vacate; (b) the disability service provider must continue to provide alternative accommodation for the resident until— (i) the end of the period of notice applying to the notice to vacate; or (ii) if a review or appeal is lodged, until the review or appeal is determined; or (iii) other alternative accommodation is provided for the resident.
Until the end of the relevant period under subsection (1)(b), the disability service provider cannot accommodate another resident in the vacancy in the room in the group home created by a notice of temporary relocation or notice to vacate.
A notice to vacate given under section 76(1)(m) is of no effect if it was given in response to the exercise, or proposed exercise, by the resident of a right under this Act.
If a person is or becomes entitled to give 2 or more notices of intention to vacate or notices to vacate under this Division— (a) the invalidity of any of the notices does not affect the validity of any other notice; and (b) each valid notice has full force and effect.
A resident may give a notice of intention to vacate to the disability service provider at any time.
A notice of intention to vacate must— (a) be given in writing; (b) specify the date on which the resident intends to vacate their room.
A notice of intention to vacate may be given in writing on behalf of the resident by the resident's guardian or resident's administrator, if any.
The disability service provider must notify the Secretary of the details of a notice of intention to vacate within 24 hours of the notice of intention to vacate being received by the disability service provider.
A notice of temporary relocation, a notice to vacate or a notice of intention to vacate can only be withdrawn if a notice of withdrawal is given.
A notice of withdrawal may be given at any time before the resident has vacated the room.
A notice of withdrawal must be— (a) in writing; (b) signed by the person who gave the notice that is being withdrawn; (c) given to the person who was given the notice that is being withdrawn.
A resident may apply to VCAT for a review of the issue of a notice to vacate on the ground that the notice to vacate is not valid because— (a) of a defect on the face of the notice to vacate; or (b) the notice to vacate was not issued in accordance with this Act; or (c) the ground on which the notice was issued is not established.
An application to VCAT under subsection (1) must be made within 28 days of the day on which the notice to vacate was received.
On an application under this section, VCAT may only determine whether or not the notice to vacate is valid.
VCAT may— (a) if it determines that the notice to vacate is valid, confirm the notice to vacate; or (b) if it determines that the notice to vacate is not valid, declare that the notice to vacate is invalid; or (c) dismiss the application. * * * * *
A disability service provider may apply to VCAT for a possession order for a room if the disability service provider has given the resident a notice to vacate the room.
An application under subsection (1) may be made at any time after the notice to vacate is given but not later than 30 days after the termination date specified in the notice to vacate.
VCAT must make a possession order under section 83 requiring a resident to vacate the room and group home on the day specified in the order if VCAT is satisfied that— (a) the disability service provider was entitled to give the notice to vacate; and (b) the notice to vacate has not been withdrawn.
The day specified in the order of VCAT under subsection (1) cannot be earlier than the termination date specified in the notice to vacate.
VCAT may dismiss or adjourn an application for a possession order under section 83 if— (a) the application is supported with a notice to vacate under section 76(1)(g); and (b) VCAT considers that satisfactory arrangements have been or can be made to avoid financial loss to the disability service provider.
An adjournment may be on any terms VCAT considers appropriate.
On the resumption of an adjourned hearing, VCAT— (a) may make a possession order if the resident has continued to accrue arrears of residential charge during the adjournment period; and (b) must dismiss the application if the resident— (i) has paid all the arrears which were the subject of the original application; and (ii) has accrued no further arrears of residential charge from the time of the application to the date of resumption of the adjourned hearing.
A possession order must include— (a) the day (being a day not more than 30 days after the day on which the possession order is made) by which the resident must vacate the room and group home; and (b) a direction to the resident to vacate the room and group home by the day specified in the order; and (c) a direction to the principal registrar to issue a warrant of possession in accordance with section 85 on the application of the person who obtained the possession order.
A possession order for a room in a group home must also include a warning that if the resident fails to comply with the direction in subsection (6)(b), he or she may be forcibly vacated from the room and group home by a police officer or an authorised person carrying out a warrant of possession.
A person who obtains a possession order under section 83 may apply to the principal registrar for a warrant of possession— (a) immediately if the possession order so provides; or (b) within 6 months after the date of the possession order if the resident fails to comply with the possession order.
An application under this section must be accompanied by the prescribed fee, if any. * * * * *
On the application of the person who obtained the warrant of possession, VCAT may from time to time make an order extending the time in which the warrant of possession may be executed.
An order under subsection (1) must not at any one time extend the time in which a warrant of possession may be executed by more than 30 days after the day on which the time for execution of the warrant would otherwise expire.
An order may not be made under subsection (1) if the time for execution of the warrant has passed.
A warrant of possession must— (a) be in a form prescribed by rules made under the Victorian Civil and Administrative Tribunal Act 1998; and (b) be directed— (i) to a police officer; or (ii) to an authorised person; and (c) give brief details of the possession order; and (d) be signed by the principal registrar.
The warrant of possession authorises the person to whom it is directed— (a) to enter the room and group home, by force if necessary; and (b) with such assistance as is necessary, to compel all persons for the time being occupying the room to vacate the room and the group home and give possession of the room to the applicant for the possession order.
A warrant of possession does not authorise the person to whom it is directed to remove any goods from the room or group home.
Entry under a warrant of possession must not be made— (a) between the hours of 6 p.m. and 8 a.m.; or (b) on a Sunday or public holiday.
The Secretary may authorise any person or class of persons either generally or in a particular case to execute warrants of possession.
A possession order is discharged if the person who obtained the order does not apply to the principal registrar for a warrant of possession within 6 months after the date of the order.
A warrant of possession issued under section 85 lapses if it is not executed within the time stated in the possession order which must not exceed
VCAT may at any time cancel a warrant of possession issued under section 85. As soon as practicable, but not later than 60 days after a warrant of possession is issued, the person to whom the warrant is directed must— (a) return the warrant to the principal registrar; and (b) specify in writing whether the warrant has or has not been executed. * * * * *
A disability service provider must, as soon as a person commences to use disability services, provide the person with written information which is relevant to the services provided by the disability service provider to that person.
For the purposes of this section, relevant information includes information— (a) about the disability services being provided to that person and any associated costs; (b) about conditions that may apply to the disability services being provided to that person; (c) explaining the procedures for making a complaint to the disability service provider and to the Disability Services Commissioner; (d) setting out legal rights, entitlements and obligations under this Act; (e) which the Secretary or the Senior Practitioner by notice in writing may require; (f) required to be provided in an order made by VCAT.
If a person using disability services is a resident in a residential service, a disability service provider is not required to provide information under this section if the information required by this section is included in the residential statement required under section 57.
This section does not limit the information that a disability service provider can provide.
Except in accordance with this Division, a disability service provider, or a person employed by a disability service provider, must not act as a financial administrator for a person with a disability provided with disability services by that disability service provider. Penalty: 60 penalty units.
Subsection (1) does not apply if the disability service provider is the Secretary providing a service in the performance of a function or the exercise of a power in accordance with another Act.
The Residents' Trust Fund established under section 45 of the Intellectually Disabled Persons' Services Act 1986 is continued under this Act.
The Secretary must maintain the Residents' Trust Fund for money held in trust on behalf of a resident in a residential service.
The money in the Residents' Trust Fund must be held in one or more of the following ways— (a) in an account or accounts at an authorised deposit-taking institution in the name of the Secretary; (b) as an investment or investments in accordance with section 94; (c) as cash in a secure place at a residential service.
The Secretary must ensure that money is only held under subsection (3)(c) to cover likely withdrawals from the Residents' Trust Fund and that the amount held does not exceed the limit specified by the Secretary.
The Secretary must ensure that there is paid into the Residents' Trust Fund as soon as is practicable— (a) any money that is received by any officer or employee of the Department from, or on behalf of, a person with a disability residing at a residential service for the benefit or use of the person with a disability; and (b) all income earned on any money in the Residents' Trust Fund.
A disability service provider providing residential services may manage or control an amount of money of a resident, being not greater than the prescribed amount, if the disability service provider has written consent to do so from— (a) the resident; or (b) the resident's guardian; or (c) the resident's administrator; or (d) a person who gives the disability service provider money to be managed for the resident, if the disability service provider is satisfied that the person— (i) is a member of the resident's family or is otherwise significant in the life of the resident; and (ii) informally manages or controls the resident's money.
If at any time the amount of the money of a resident held by a disability service provider under subsection (1) exceeds the prescribed amount and the money of the resident is not to be used within the next 14 days, the money must be— (a) held on trust on behalf of the resident; and (b) deposited in a trust account until it is dealt with on behalf of the resident. Penalty: 60 penalty units.
If a disability service provider providing residential services manages, controls or holds on trust under subsection (2) the money of a resident, the disability service provider must— (a) keep a copy of the consent given in accordance with subsection (1) in relation to that money; (b) if the money is not deposited in a trust account in accordance with subsection (2), keep the money of the resident in a secure place; (c) maintain an accurate and up to date financial management system which provides a record of— (i) the money of the resident; (ii) the receipt and expenditure by the disability service provider of the money of the resident; (iii) any investment of the money of the resident; (d) ensure that records kept under paragraph (c) individually itemise each transaction made on behalf of the resident. Penalty: 60 penalty units.
A disability service provider who manages, controls or holds on trust under subsection (2) the money of a resident must provide a statement at the end of each month to the person who gave consent under subsection (1) specifying— (a) the current balance held on behalf of the resident; (b) any income received and expenditure incurred on behalf of the resident since the previous statement; (c) the current status of any liabilities incurred on behalf of the resident. Penalty: 60 penalty units.
The disability service provider must, upon request, give access to the resident's financial records held by the disability service provider to the person who gave consent under subsection (1). Penalty: 60 penalty units.
The disability service provider or a person employed by the disability service provider must not accept appointment as a resident's guardian or resident's administrator in respect of any resident of the residential service. Penalty: 60 penalty units.
In this section, money of a resident does not include money— (a) payable to the disability service provider in relation to services provided by the disability service provider; or (b) paid by the Secretary to a person to purchase disability services to be provided to the resident.
The Secretary may invest any money in the Residents' Trust Fund that is not immediately required for use.
A disability service provider, other than the Secretary, may invest any money held on behalf of a resident that is not immediately required for use by the resident.
Money invested under this section may be invested in any manner in which money may be invested under the Trustee Act 1958.
The amount standing to the credit of a resident in that person's trust account must not exceed the amount prescribed for the purposes of this section.
If the Secretary or the disability service provider considers that an amount to be credited to a person's trust account will result in the amount standing to the credit of the person exceeding the amount prescribed under subsection (1), the Secretary or the disability service provider must advise the person, or arrange for the person or the person's representative to be advised, to invest the money in an appropriate manner.
When a person ceases to reside at a residential service, the Secretary must pay all money standing to the credit of the person in the Residents' Trust Fund to the person or the person's representative.
When a person ceases to reside at a residential service, the disability service provider must pay all money standing to the credit of the person in any trust account kept in respect of the person by the disability service provider to the person or the person's representative.
The Minister must determine standards to be met by disability service providers in the provision of disability services under this Act.
Without limiting the generality of subsection (1), a determination made under subsection (1) may specify standards in respect of the provision of disability services including with respect to— (a) service delivery; (b) support plans; (c) complaints management; (d) information management and privacy and confidentiality.
Standards specified for the purposes of subsection (2)(d) must not be lower than the standards that would apply if the Health Records Act 2001 and the Privacy and Data Protection Act 2014 applied in respect of the provision of disability services by disability service providers.
The Minister must ensure that a determination made under subsection (1) is published in the Government Gazette.
A determination made under subsection (1)— (a) has effect— (i) on the day that is 30 days after the day that the determination is published in the Government Gazette; or (ii) on any later day specified in the determination; (b) may be amended or revoked by another determination made in accordance with this section.
A disability service provider must comply with the relevant standards applicable to the disability service provider. Penalty: 60 penalty units.
The Secretary must by notice published in the Government Gazette specify in respect of standards determined under section 97 different performance measures for different categories of disability service providers and different categories of disability services.
The Secretary may monitor the compliance of a disability service provider with the relevant performance measures in respect of the standards.
For the purposes of this section, the Secretary may in writing authorise a person or body as an assessor to conduct an independent review of the compliance of the disability service provider with relevant performance measures.
A disability service provider must ensure that an assessor authorised under subsection (3) is provided with reasonable assistance and access to enable the assessor to conduct the independent review. Penalty: 60 penalty units.
This section applies if the Secretary considers that a disability service provider has breached or failed to comply with— (a) any relevant performance measure under section 98; or (b) any condition subject to which funding for the disability service is provided by the Secretary under section 9 or 10; or (c) this Act or any other requirement made in accordance with this Act.
If this section applies, the Secretary may by notice in writing direct the disability service provider— (a) to remedy the breach or comply with the relevant performance measure, condition or requirement within the period specified in the direction; or (b) to provide the disability service in accordance with conditions specified in the notice.
A direction under subsection (2)(a) may include advice as to measures to be taken to remedy the breach or comply with the condition or requirement.
A disability service provider must comply with a direction given under subsection (2). Penalty: 60 penalty units.
This section applies if the Secretary considers that a disability service provider has failed to comply with a direction under section 99.
If this section applies, the Secretary may— (a) stop any payments under section 9 or 10 until the breach is remedied or the condition complied with; or (b) terminate the contract; or (c) take action to remove the committee of management of the disability service provider in accordance with the legislation under which the committee of management was appointed.
The provisions of this Division are declared to be Corporations legislation displacement provisions for the purposes of section 5G of the Corporations Act in relation to the provisions of Chapter 5 of that Act. Section 5G of the Corporations Act provides that if a State law declares a provision of a State law to be a Corporations legislation displacement provision for the purposes of that section, any provision of the Corporations legislation with which the State provision would otherwise be inconsistent does not operate to the extent necessary to avoid the inconsistency.
This Division applies despite anything to the contrary in the Co-operatives National Law (Victoria) and the Associations Incorporation Reform Act 2012 or any other Act establishing a body that is a disability service provider under this Act.
This section applies if in the opinion of the Minister a disability service provider— (a) is inefficiently or incompetently managed; or (b) has breached or failed to comply with a relevant standard under section 97; or (c) has breached or failed to comply with any condition subject to which funding is provided by the Secretary under section 9 or 10; or (d) has requested the Minister to appoint a person as administrator to take over the functions of the disability service provider under this Act or under a contract or agreement under this Act.
If this section applies, the Governor in Council may, on the recommendation of the Minister, by Order in Council published in the Government Gazette appoint a person as administrator to take over the functions of the disability service provider under this Act or under a contract or agreement under this Act.
If the request has been made under subsection (1)(a), (1)(b) or (1)(c), the Minister must not make a recommendation under subsection (2) unless the Minister— (a) has given reasonable notice in the circumstances to the disability service provider specifying in writing— (i) the ground on which it is intended to make a recommendation to appoint an administrator; and (ii) the extent to which the Minister considers it is necessary for the purpose of performing functions under this Act or under a contract or agreement under this Act for the administrator to replace the committee of management or other governing body; and (iii) that the disability service provider may object in writing within the period specified in the notice and may request to be represented at a hearing into the objection; and (b) has considered any objection made under paragraph (a).
An administrator appointed under this section— (a) is deemed to be the committee of management or other governing body of the disability service provider to the extent that the Minister considers necessary for the purpose of performing functions under this Act or under a contract or agreement under this Act; and (b) for the purposes of those functions has all the powers and may exercise any of the duties of the committee of management or other governing body or its members; and (c) is subject to all the duties of the committee of management or other governing body or its members.
On the day on which an administrator is appointed under this section in respect of a disability service provider for the purposes of its functions under this Act or under a contract or agreement under this Act, the members of the committee of management or other governing body cease to constitute the committee of management or other governing body to the extent that the administrator is deemed to be the committee of management or other governing body.
If an administrator is appointed in respect of part of the business of the disability service provider, the administrator and the committee of management or other governing body must ensure that there is in place a process for consultation and decision-making to enable the continuity of operation of the whole of the business of the disability service provider.
If an administrator appointed under this section recommends that a contract under section 10 with a disability service provider should be terminated, the Secretary may terminate that contract with immediate effect.
The salary of the administrator and any expenses of the administrator necessarily incurred in an administration under this section are to be paid by the Secretary.
The Governor in Council may, on the recommendation of the Minister, by Order in Council published in the Government Gazette extend the appointment of an administrator appointed under this section for a further period as is specified in the Order in Council.
The Governor in Council may by Order in Council published in the Government Gazette declare that on the day specified in the Order in Council— (a) the committee of management or other governing body is re-instated as the committee of management or governing body of the disability service provider, or if its members ceased to hold office, is to be re-established by appointment or election as the case may be; and (b) the administrator ceases to be the administrator.
This section applies if an administrator is appointed under section 102 in respect of a disability service provider providing residential services.
If this section applies, while the appointment of an administrator has effect, an administrator, in the name of, or as agent of, the disability service provider, may do any thing necessary or desirable for the purpose of carrying out his or her function as an administrator in respect of the residential service.
Without limiting the generality of subsection (2), the administrator may— (a) enter and occupy the residential service; (b) manage and operate the residential service; (c) put into place a financial management system in relation to the residential service including— (i) receiving residential charges from or on behalf of a resident; (ii) receiving money from or on behalf of a resident as an allowance for a resident and appropriately distributing that money to the resident or using it for the benefit of the resident; (iii) establishing and maintaining a trust account with a financial institution into which money received from or on behalf of residents may be paid; (iv) making payments in relation to the exercise of any power referred to in this section; (d) inspect and take possession of any document in connection with the operation and management of the residential service; (e) use, repair or replace any equipment or facilities in the residential service; (f) prepare and distribute to the residents for consumption any food stored at the residential service; (g) enter into or renew any contract for the provision of goods or services or any lease contract or any contract of insurance in relation to the operation and management of the residential service; (h) engage additional members of staff to work at the residential service.
In carrying out his or her function as an administrator in respect of the residential service and in exercising a power under this section, an administrator must comply with— (a) any direction given by the Secretary; and (b) any guidelines issued by the Secretary in relation to administrators of residential services.
If a person is appointed as administrator of a residential service any contract, agreement or arrangement for the provision of equipment or services or the use of premises for the purposes of carrying on the disability service continues in force despite the appointment.
If a person is appointed as administrator of a residential service, a person must not, without the consent of the administrator, remove from the residential service any equipment or other property (whether or not owned by the disability service provider) which is reasonably necessary for the proper and efficient functioning of the disability service. Penalty: 120 penalty units.
A person who suffers loss as a result of— (a) the appointment of an administrator; and (b) the operation of subsection (5) or (6)— is entitled to be paid the amount of compensation as the Minister, on the recommendation of the Secretary, determines.
Any liability of the Secretary under this section is to be paid from the Consolidated Fund which is hereby to the necessary extent appropriated accordingly.
A person who is or has been the disability service provider of a residential service of which an administrator has been appointed is liable to pay to the Secretary the amount determined by the Secretary as the amount of costs incurred— (a) in connection with the appointment of the administrator; or (b) by the administrator in connection with the carrying on of the disability service.
If a person has been appointed as an administrator of a residential service under this section, a resident of the residential service may make payments of residential charges to the administrator.
This Division applies to— (a) a disability service provider; and (b) a former disability service provider in relation to any matter that occurred, or is alleged to have occurred, during the
A reference in this Division (other than in section 105) to a disability service provider is a reference to, as the case requires— (a) a disability service provider; or (b) a former disability service provider.
A disability service provider must institute and operate a system to receive and resolve complaints received by the disability service provider in respect of disability services provided by the disability service provider. Penalty: 120 penalty units.
A disability service provider must provide an annual report to the Disability Services Commissioner including information about the number and type of complaints and the outcome of the complaints.
Subsection (1) does not apply to a disability service provider who is an exempt service provider.
A disability service provider to whom a complaint is made must take all reasonable steps to ensure that the following persons are not adversely affected because the complaint has been made— (a) the person who made the complaint; (b) if the complaint was made on behalf of another person, that other person; (c) a person with a disability.
This Division applies to— (a) a regulated service provider; and (b) a former regulated service provider in relation to any matter that occurred, or is alleged to have occurred, during the
A reference in this Division (other than in section 106B) to a regulated service provider is a reference to, as the case requires— (a) a regulated service provider; or (b) a former regulated service provider. A regulated service provider must institute and operate a system to receive and resolve complaints received by the regulated service provider in respect of regulated disability services provided by the regulated service provider. Penalty: 120 penalty units. A regulated service provider, other than an exempt service provider, must provide an annual report to the Disability Services Commissioner including information about the number and type of complaints and the outcome of the complaints. A regulated service provider to whom a complaint is made must take all reasonable steps to ensure that the following persons are not adversely affected because a complaint has been made— (a) the person who made the complaint; (b) if the complaint was made on behalf of another person, that other person; (c) a person with a disability.
The purpose of this Division is to provide for an independent and accessible process for dealing with complaints about— (a) the provision of services by disability service providers; and (b) the provision of services to persons with a disability by contracted service providers and funded service providers; and (c) the provision of services by prescribed service providers to persons with a disability specifically for the support of those persons.
This Division does not apply to a complaint about a matter that could be the subject of a complaint to— (a) the Health Complaints Commissioner under the Health Records Act 2001; or (b) the Information Commissioner under the
This Division applies to— (a) a disability service provider; and (b) a regulated service provider; and (c) a former disability service provider in relation to any matter that occurred, or is alleged to have occurred, during the
(d) a former regulated service provider in relation to any matter that occurred, or is alleged to have occurred, during the
To avoid doubt, in this Division, a reference to the service provider, in relation to a complaint, is a reference to the service provider about whom the complaint has been made.
A reference in this Division to service provider is a reference to, as the case requires— (a) a disability service provider; or (b) a former disability service provider; or (c) a regulated service provider; or (d) a former regulated service provider.
A complaint may be made to the Disability Services Commissioner if the complaint— (a) arises out of the provision of disability services or regulated disability services by a service provider; or (b) is that a service provider has acted unreasonably by not properly investigating, or not taking proper action on, a complaint made to the service provider. * * * * *
A complaint about a provision of services by an exempt service provider may not be made to the Disability Services Commissioner under this section.
Any person may make a complaint to the Disability Services Commissioner.
A person may make a complaint to the Disability Services Commissioner— (a) orally; or (b) in writing; or (c) by any other means which is appropriate in the circumstances.
If the Disability Services Commissioner receives an oral complaint, the Disability Services Commissioner must require the person who made the complaint to confirm the complaint in writing unless the Disability Services Commissioner is satisfied that there is good reason why the complaint should not be confirmed in writing.
The Disability Services Commissioner may require a person who makes a complaint to the Disability Services Commissioner to give more information about the complaint in a form and within a time fixed by the Disability Services Commissioner.
Subject to subsection (6), a person who complains to the Disability Services Commissioner must give their name and any other information relating to their identity as the Disability Services Commissioner may require.
The Disability Services Commissioner may determine to keep information given to the Disability Services Commissioner under subsection (4) confidential if the Disability Services Commissioner considers that— (a) there are special circumstances; and (b) it is in the complainant's interest to keep the information confidential.
The Disability Services Commissioner may determine to consider a complaint despite the person making the complaint refusing to comply with subsection (4) if the Disability Services Commissioner is satisfied that the complaint requires investigation.
If subsection (6) applies, the Disability Services Commissioner is not required to comply with any provision of this Division requiring notice of any matter to be given to the person making the complaint unless the Disability Services Commissioner becomes aware of the identity of the person who made the complaint.
It is the duty of the Disability Services Commissioner to provide appropriate assistance to a person who wishes to make a complaint and requires assistance to formulate the complaint.
The person who made a complaint to the Disability Services Commissioner may at any time withdraw the complaint by notifying the Disability Services Commissioner.
Subject to subsection (3), if the Disability Services Commissioner is notified under subsection (1), the Disability Services Commissioner must then stop dealing with the complaint.
The Disability Services Commissioner may continue to deal with a complaint despite the complaint being withdrawn under subsection (1) if the Disability Services Commissioner considers that— (a) the health, safety or welfare of the person accessing the service may be affected; or (b) the complaint may have been withdrawn due to victimisation, coercion or duress.
The Disability Services Commissioner must within the specified period decide whether to consider the complaint.
For the purpose of making a decision under subsection (1), the Disability Services Commissioner may by written notice invite a person to— (a) attend before the Disability Services Commissioner to discuss the complaint; or (b) produce a document specified in the notice.
The Disability Services Commissioner may attempt to resolve the complaint informally if the Disability Services Commissioner considers it appropriate to do so.
For the purposes of subsection (1), specified period means— (a) the period of 90 days; or (b) a period longer than 90 days that the Disability Services Commissioner considers reasonable— after the complaint is received by the Disability Services Commissioner.
The Disability Services Commissioner may decline to consider a complaint if— (a) the person has not complied with a requirement under section 111; or (b) the Disability Services Commissioner considers that the complaint— (i) is frivolous; or (ii) is vexatious; or (iii) is misconceived; or (iv) is lacking in substance; or (v) does not warrant investigation; or (c) the complaint has already been determined by a court, board or tribunal and does not raise any matter or issue that was not considered in that determination; or (d) the complaint is being considered by a court, board or tribunal; or (e) the complaint relates to an incident which occurred more than 12 months before the complaint is made and the Disability Services Commissioner considers the person who made the complaint has not shown a good reason for the delay; or (f) the Disability Services Commissioner considers that the Disability Services Commissioner does not have the jurisdiction to consider the complaint under this Act; or (g) the Disability Services Commissioner considers that the complaint raises issues which require investigation by another person, court, board or tribunal.
If subsection (1)(f) or (1)(g) applies, the Disability Services Commissioner may refer the complaint and any relevant information to the person, court, board or tribunal which the Disability Services Commissioner considers has power to resolve or deal with the matter.
Unless subsection (4) applies, the Disability Services Commissioner must not conciliate or investigate a complaint unless the Disability Services Commissioner is satisfied that all reasonable steps have been taken to resolve the matter with the service provider.
Despite subsection (3), the Disability Services Commissioner may refer a complaint for conciliation or investigate a complaint if the Disability Services Commissioner considers that if he or she does not do so— (a) the health, safety or welfare of the person accessing the service may be affected; or (b) there is a risk that the person accessing the service may be victimised or intimidated because the matter has been raised with the service provider.
Within 14 days of deciding not to consider a complaint, the Disability Services Commissioner must give written notice of the decision to the person who made the complaint.
Unless section 120 applies, within 14 days after deciding to consider a complaint, the Disability Services Commissioner must give written notice of the decision to the service provider.
If— (a) the Disability Services Commissioner decides to consider a complaint in whole or in part; and (b) the Disability Services Commissioner considers that the complaint is suitable for conciliation— the Disability Services Commissioner must make all reasonable endeavours to conciliate the complaint.
The purpose of conciliation is to encourage the settlement of the complaint by— (a) arranging for the service provider and the person who made the complaint to hold informal discussions about the complaint; and (b) facilitating those discussions; and (c) if possible, assisting the service provider and the person who made the complaint to reach agreement.
Unless section 120 applies, within 14 days after the Disability Services Commissioner decides to conciliate the complaint, the Disability Services Commissioner must— (a) give written notice of the decision to conciliate the complaint to the service provider and the person who made the complaint; and (b) include in the notice details of the arrangements made for conciliation discussions between the service provider and the person who made the complaint; and (c) state in the notice that a service provider may make submissions for the conciliation to the Disability Services Commissioner.
The Disability Services Commissioner may require the person who made the complaint and the service provider to attend a conciliation either personally or by a representative who has authority to settle the matter on their behalf.
If agreement with respect to the subject matter of the complaint is reached following the conciliation, the person who made the complaint or the service provider may within 30 days after agreement is reached request a written record of the conciliation agreement.
If a written record of the conciliation agreement is requested— (a) the Disability Services Commissioner must prepare the record; (b) the record must be signed by or on behalf of the person who made the complaint and the service provider; (c) the Disability Services Commissioner must certify the record signed under paragraph (b); (d) the Disability Services Commissioner must give a copy of the certified record to the person who made the complaint and the service provider.
Evidence of anything said or admitted during the conciliation process is not admissible in proceedings before a court or tribunal.
The Disability Services Commissioner may stop dealing with a complaint if the Disability Services Commissioner is of the view that— (a) the complaint cannot be conciliated; or (b) no further action is warranted; or (c) it is reasonable to stop dealing with the complaint. (1A) Within 14 days after the Disability Services Commissioner decides to stop dealing with a complaint, the Disability Services Commissioner must give written notice of the decision to the service provider and the person who made the complaint. (1B) The notice must specify the reasons for the decision to stop dealing with the complaint.
If a person who made a complaint and the service provider have resolved the matter by agreement and the Disability Services Commissioner becomes aware that the complaint has been resolved, the Disability Services Commissioner must stop dealing with the complaint under this Division unless the Disability Services Commissioner considers that the person making the complaint has been subjected to victimisation, coercion or duress.
At any time after the Disability Services Commissioner has received a complaint, the person who made it and the service provider may resolve the matter by agreement, whether through the conciliation process or not.
If the person who made a complaint and the service provider resolve the matter by agreement, the person who made the complaint must without delay give notice of the fact to the Disability Services Commissioner.
The Disability Services Commissioner may re-open any complaint that the Disability Services Commissioner has stopped dealing with under subsection (1) if— (a) the person who made the complaint has provided new or additional information; and (b) the Disability Services Commissioner considers that the person who made the complaint is able to show good reason as to why the information was not previously provided.
The Disability Services Commissioner may re-open any complaint that the Disability Services Commissioner has stopped dealing with under subsection (1)(c) if the Disability Services Commissioner considers it is reasonable to do so.
A complaint is re-opened under subsection (5) or (6) when the Disability Services Commissioner gives written notice of the decision to re-open the complaint to the service provider and the person who made the complaint.
The notice must specify the reasons for the decision to re-open the complaint.
The Disability Services Commissioner must— (a) investigate a complaint which— (i) the Disability Services Commissioner has decided to accept and the Disability Services Commissioner considers is not suitable for conciliation; or (ii) the Disability Services Commissioner is of the view that conciliation has failed and further action is required; and (b) decide whether or not the complaint is justified.
Unless section 120 applies, within 14 days after starting to investigate a complaint the Disability Services Commissioner must give written notice of the investigation and details of the complaint to the service provider. * * * * *
If— (a) the Disability Services Commissioner considers that the person who made the complaint and the service provider cannot resolve the complaint; and (b) after investigating the complaint the Disability Services Commissioner determines that the complaint is justified— the Disability Services Commissioner must decide what action should be taken to remedy the complaint.
If the Disability Services Commissioner determines that a complaint is justified, the Disability Services Commissioner must give the appropriate notice under section 119.
The Disability Services Commissioner must not determine whether a complaint is justified or what action is to be taken in a way which conflicts with the provisions of any Act or subordinate instrument or any rule of law or practice.
The Disability Services Commissioner must in determining whether a complaint is justified or what action is to be taken have regard to the impact on the service provider and any other person accessing the services of the service provider who may be affected.
If, in the course of investigating a complaint, the Disability Services Commissioner determines the complaint is suitable for conciliation, the Disability Services Commissioner must make all reasonable endeavours to conciliate the complaint in accordance with section 116.
Within 14 days after deciding whether or not a complaint is justified the Disability Services Commissioner must— (a) give written notice of the decision to the person who made the complaint and the service provider; and (b) include in the written notice the reasons for the decision; and (c) if the Disability Services Commissioner decides that the complaint is justified, specify in the written notice any action which the Disability Services Commissioner considers ought to be taken to remedy the complaint.
A written notice under subsection (1) must also advise the person who made the complaint and the service provider that the Disability Services Commissioner may conduct an inquiry into what action the service provider has taken upon the complaint. * * * * * * * * * * * * * * * * * * * * * * * * *
The Disability Services Commissioner need not comply with section 115(2), 116(3) or 118(2) if the Disability Services Commissioner considers that if a notice or document under that section is given to a service provider— (a) the health, safety or welfare of a person to whom the service provider is providing services may be affected; or (b) the proper investigation of the complaint would be prejudiced.
If subsection (1) applies, the Disability Services Commissioner must give written notice to the service provider without delay after the Disability Services Commissioner is satisfied that— (a) the risk is at an end; or (b) there is no further likelihood of prejudice to the proper investigation of the complaint— but in any case not later than 6 months after the complaint was made or, if the investigation ends before that time, before the end of the investigation.
The Disability Services Commissioner must stop dealing with an issue raised in a complaint if— (a) the Disability Services Commissioner becomes aware that the person who made the complaint or the service provider has begun legal proceedings which relate to that issue; or (b) the Disability Services Commissioner becomes aware that proceedings relating to that specific issue have been initiated before Fair Work Australia or the Australian Industrial Relations Commission; or (c) the Disability Services Commissioner considers that the issue should properly be dealt with by a court or VCAT.
Within 14 days after the Disability Services Commissioner stops dealing with a complaint under subsection (1), the Disability Services Commissioner must give written notice that the Disability Services Commissioner has stopped dealing with the complaint to the person who made the complaint and the service provider.
Despite subsection (1)(a), the Disability Services Commissioner may, with the consent of— (a) the person who made the complaint; and (b) the service provider— continue dealing with the matter, but only by conciliation.
If subsection (3) applies, the Disability Services Commissioner must stop dealing with the complaint when the Disability Services Commissioner becomes aware that a court has commenced to hear a proceeding relating to the complaint.
If subsection (1)(a) applies and the Disability Services Commissioner subsequently becomes aware that the legal proceedings relating to the complaint have been withdrawn, the Disability Services Commissioner may on the request of the person who made the complaint re-open proceedings under this Division. * * * * *
The Disability Services Commissioner must not exercise a power under Division 8 while a complaint is being conciliated. * * * * * * * * * * * * * * * * * * * * * * * * *
Subject to subsection (2), this Division applies to— (a) a disability service provider or regulated service provider; and (b) a former disability service provider or former regulated service provider in relation to— (i) any matter that occurred, or is alleged to have occurred, during the 24 month period immediately before— (A) in the case of a former disability service provider, the lapse or revocation of its registration; or (B) in the case of a former regulated service provider, it ceased to be a regulated service provider— irrespective of whether an investigation has commenced; or (ii) any initiated investigation not concluded before the relevant event referred to in subparagraph (i).
This Division does not apply to a former disability service provider or a former regulated service provider in relation to a systemic initiated investigation across 2 or more service providers unless the systemic initiated investigation commenced before each service provider ceased to be a disability service provider or regulated service provider, as the case requires.
A reference in this Division to a service provider is a reference to, as the case requires— (a) a disability service provider; or (b) a former disability service provider; or (c) a regulated service provider; or (d) a former regulated service provider. In this Division— Commissioner means the Disability Services Commissioner.
The Commissioner, on the Commissioner's own initiative, may conduct an investigation into— (a) the provision of— (i) disability services by a disability service provider or former disability service provider; or (ii) regulated disability services by a regulated service provider or former regulated service provider; or (b) the provision of— (i) a disability service by a disability service provider or former disability service provider to a person with a disability; or (ii) a regulated disability service by a regulated service provider or former regulated service provider to a person with a disability.
The Commissioner may conduct an investigation under subsection (1)(a) if the Commissioner identifies a persistent or recurring systemic issue about abuse or neglect in the provision of the services.
The Commissioner may conduct an investigation under subsection (1)(b) if the Commissioner receives information that abuse or neglect may have occurred in the provision of the service to the person with the disability.
The Commissioner must not conduct an investigation under this section unless the Commissioner considers that the investigation— (a) will assist the improvement of the provision of the services; and (b) can be conducted within the resources of the Commissioner.
The Commissioner must not conduct an investigation under this section about a provision of services by an exempt service provider.
If the Commissioner decides to conduct a systemic initiated investigation, the Commissioner— (a) must give written notice of the investigation, to any service provider whom the Commissioner decides to investigate within 14 days after making the decision to investigate the service provider; and (b) may give written notice of the investigation, within 14 days after making the decision to conduct the investigation, to any person with a disability who is the subject of the investigation, or, if the person does not have legal capacity, the guardian of the person, or, if none, the next of kin of the person.
Within 14 days after deciding to conduct an individual initiated investigation, the Commissioner must give written notice of the investigation to— (a) the person with a disability who is the subject of the investigation or, if the person does not have legal capacity, the guardian of the person, or, if none, the next of kin of the person; and (b) any person who is alleged to have abused or neglected the person with a disability; and (c) the service provider who provided the service.
If the Commissioner or an authorised officer is exercising a power under Subdivision 3 or 4 of Division 8 and notice under subsection (1) or (2) has not been given to the person in respect of whom the power is being exercised, the notice must be given at the same time as the Commissioner or authorised officer begins to exercise the power.
The Commissioner is not required to comply with subsection (1) or (2) if the Commissioner considers that— (a) if the notice is given, the health, safety or welfare of a person to whom the service provider being investigated is providing services may be affected; or (b) the proper investigation of the matter would be prejudiced.
If subsection (4) applies, the Commissioner must give written notice to any person specified in subsection (1) or (2) without delay after the Commissioner is satisfied that— (a) the risk is at an end; or (b) there is no further likelihood of prejudice to the proper investigation of the matter— but in any case not later than 6 months after the investigation is completed or, if the investigation ends before that time, before the end of the investigation.
On completing a systemic initiated investigation, the Commissioner must decide whether or not a persistent or recurring systemic issue about abuse or neglect in the provision of the services exists.
On completing an individual initiated investigation, the Commissioner must decide whether or not abuse or neglect has occurred in the provision of the service to the person with a disability.
If the Commissioner makes a relevant decision in a systemic initiated investigation, the Commissioner must decide if any action should be taken by the service provider, who was given notice under section 128C and investigated by the Commissioner, to improve services or prevent neglect or abuse.
If the Commissioner makes a relevant decision in an individual initiated investigation, the Commissioner must decide if any action should be taken by the service provider to improve services or prevent neglect or abuse.
The Commissioner must not make a relevant decision or determine that action should be taken under subsection (1) or (2) in a way which conflicts with the provisions of any Act or subordinate instrument or any rule of law or practice.
The Commissioner, in making a relevant decision or in determining that action should be taken under subsection (1) or (2), must have regard to the impact on any service provider who may be affected and any other person accessing the services of that service provider.
In this section— relevant decision means a decision of the Commissioner under section 128D that— (a) a persistent or recurring systemic issue about abuse or neglect in the provision of the services exists; or (b) abuse or neglect has occurred in the provision of the service to the person with a disability.
Within 14 days after making a decision on a systemic initiated investigation the Commissioner— (a) must give written notice of the decision to any service provider investigated by the investigation; and (b) may give written notice of the decision to any person with a disability who was the subject of the investigation or, if the person does not have legal capacity, the guardian of the person, or, if none, the next of kin of the person.
At least 14 days before giving a notice under subsection (1)(b), if the notice makes adverse comment on or gives an adverse opinion of an individual or a service provider, the Commissioner must— (a) give a copy of the relevant part of the notice to the individual or service provider; and (b) give the individual or service provider a reasonable opportunity to comment on the proposal to give the notice.
Within 14 days after making a decision on an individual initiated investigation the Commissioner must give written notice of the decision to— (a) any service provider investigated by the investigation; and (b) the person with a disability who was the subject of the investigation or, if the person does not have legal capacity, the guardian of the person, or, if there is no guardian, the next of kin of the person; and (c) any person who is alleged to have abused or neglected the person with a disability.
A notice under this section— (a) must be in writing; and (b) must set out reasons for the decision. If the Commissioner, under section 128E, has determined that a service provider should take action, the notice under section 128F must— (a) specify the action that the Commissioner has determined the service provider should take; and (b) include a statement setting out the powers of the Commissioner to conduct an investigation under Division 6C into the action, if any, that the service provider takes.
Subject to subsection (2), this Division applies to— (a) a disability service provider or a regulated service provider; and (b) a former disability service provider or former regulated service provider in relation to— (i) any matter that occurred, or is alleged to have occurred, during the 24 month period immediately before the provider ceased to be a disability service provider or regulated service provider, as the case requires, irrespective of whether a referral investigation has commenced; or (ii) any referral investigation not concluded before the provider ceased to be a disability service provider or regulated service provider, as the case requires.
This Division does not apply to a former disability service provider or a former regulated service provider in relation to a referral investigation regarding systemic matters across 2 or more service providers unless the referral investigation commenced before each service provider ceased to be a disability service provider or regulated service provider, as the case requires.
A reference in this Division to a service provider is a reference to, as the case requires— (a) a disability service provider; or (b) a former disability service provider; or (c) a regulated service provider; or (d) a former regulated service provider. In this Division— Commissioner means the Disability Services Commissioner.
The Commissioner may conduct an investigation into a matter referred to the Commissioner under subsection (2).
The Minister or the Secretary, in writing, may refer to the Commissioner for investigation any matter relating to— (a) the provision of— (i) disability services by a disability service provider or former disability service provider; or (ii) regulated disability services by a regulated service provider or former regulated service provider; or (b) complaints about— (i) disability services provided by a disability service provider or former disability service provider; or (ii) regulated disability services provided by a regulated service provider or former regulated service provider; or (c) abuse or neglect in the provision of— (i) disability services provided by a disability service provider or former disability service provider; or (ii) regulated disability services provided by a regulated service provider or former regulated service provider.
The Minister or Secretary may refer a matter under subsection (2) for the purpose of— (a) improving the services to be investigated; or (b) understanding issues in the services being investigated in order to develop improvements in response to those issues.
In a referral of a matter under subsection (2), the Minister or Secretary may ask the Commissioner, when conducting the investigation, to consider any action that the service provider should take to improve the services provided by the service provider.
To avoid doubt, the Minister or Secretary may refer a matter under subsection (2) that relates to— (a) a provision of services to one person only; or (b) a provision of services to a person who dies before the referral takes place; or (c) general issues about the provision of disability services or regulated disability services or about a specific group of persons with a disability.
The Commissioner must not conduct an investigation under subsection (1) into a provision of services by an exempt service provider.
The Commissioner must publish details of any referral investigation on the Internet site of the Commissioner, within 14 days after receiving the referral.
In publishing details under subsection (1), the Minister or Secretary may require the Commissioner not to publish identifying details of any person.
If the Commissioner decides to conduct a referral investigation to which section 128I(4) applies, within 14 days after that decision, the Commissioner must give notice of the investigation to each service provider being investigated.
If the Commissioner decides to conduct a referral investigation in which a power under
(a) before the exercise of the power or when starting to exercise the power; or (b) within 14 days after the decision to conduct the investigation, if the power is not exercised before then.
The Commissioner is not required to comply with this section if the Commissioner considers that— (a) if the notice is given to a service provider, the health, safety or welfare of a person to whom the service provider is providing services may be affected; or (b) the proper investigation of the matter would be prejudiced.
If subsection (3) applies, the Commissioner must give written notice to the service provider without delay after the Commissioner is satisfied that— (a) the risk is at an end; or (b) there is no further likelihood of prejudice to the proper investigation of the matter— but in any case not later than 6 months after the investigation is completed or, if the investigation ends before that time, before the end of the investigation. On completing a referral investigation the Commissioner may make recommendations and give advice to the Minister or the Secretary on the improvements that may be made to the services investigated.
If the Commissioner has conducted a referral investigation to which section 128I(4) applies, the Commissioner may decide that any service provider so investigated should take action to improve the services investigated.
The Commissioner must not make a decision under subsection (1) in a way which conflicts with the provisions of any Act or subordinate instrument or any rule of law or practice.
The Commissioner, in making a decision under subsection (1), must have regard to the impact on any service provider who may be affected and any other person accessing the services of that service provider.
Within 14 days after making a decision under section 128M on a referral investigation that a service provider should take action, the Commissioner must give notice of the decision to the service provider.
A notice under this section must be in writing and must— (a) specify any action that the Commissioner has decided that the service provider should take under section 128M; and (b) include the reasons for the decision; and (c) include a statement setting out the powers of the Commissioner to conduct an investigation under Division 6C into the action, if any, that the service provider takes.
Subject to subsection (2), this Division applies to— (a) a disability service provider or regulated service provider; and (b) a former disability service provider or former regulated service provider in relation to— (i) any matter that occurred, or is alleged to have occurred, during the 24 month period immediately before the provider ceased to be a disability service provider or regulated service provider, as the case requires, irrespective of whether an investigation has commenced; or (ii) any follow up investigation not concluded before the provider ceased to be a disability service provider or regulated service provider, as the case requires.
This Division does not apply to a former disability service provider or a former regulated service provider in relation to a follow up investigation regarding systemic matters across 2 or more service providers unless the follow up investigation commenced before each service provider ceased to be a disability service provider or regulated service provider, as the case requires.
A reference in this Division to a service provider is a reference to, as the case requires— (a) a disability service provider; or (b) a former disability service provider; or (c) a regulated service provider; or (d) a former regulated service provider. In this Division— Commissioner means the Disability Services Commissioner.
A service provider, who has been given notice to take action, must report in writing to the Commissioner about the action the service provider has taken to comply with the notice. Penalty: 60 penalty units.
A report under subsection (1) must be given within— (a) 45 days of receiving the notice; or (b) before the end of any extension of time given under subsection (4).
A service provider may apply to the Commissioner to extend the period of time within which the report must be given.
On application under subsection (3), the Commissioner may extend the period of time within which the report must be given by no more than 15 days, if the application is made before the expiry of the time within which the report must be given.
Whether or not a service provider reports to the Commissioner as required by section 128P, the Commissioner may give notice in writing to the service provider requiring the service provider to report in writing about any action the service provider has taken to comply with a notice to take action.
A notice under subsection (1)— (a) may require the service provider to produce any information required by the Commissioner, whether or not in addition to any information already reported to the Commissioner; and (b) may specify the time within which the information must be given to the Commissioner; and (c) must not be given unless the time specified in section 128P(2) has expired; and (d) must include a statement setting out that the Commissioner may conduct an investigation under Subdivision 3 into the action, if any, the service provider has taken.
The Commissioner may continue to give notices under subsection (1) until the Commissioner is satisfied that the notice to take action has been complied with.
A service provider to whom a notice under this section has been given must comply with the notice, within the period specified in the notice. Penalty: 60 penalty units.
If the Commissioner has issued a notice under section 128Q and the time specified in the notice under section 128Q(2)(b) has passed, the Commissioner, may conduct an investigation into what action the service provider has taken on a complaint, including action the service provider has taken in response to the notice to take action.
The Commissioner must not conduct an investigation under subsection (1) about a provision of services by an exempt service provider.
Within 14 days after deciding to conduct a follow up investigation, the Commissioner must give notice of the investigation to the service provider.
The Commissioner is not required to comply with subsection (1) if the Commissioner considers that— (a) if the notice is given to the service provider, the health, safety or welfare of a person to whom the service provider is providing services may be affected; or (b) the proper investigation of the matter would be prejudiced.
If subsection (2) applies, the Commissioner must give written notice to the service provider without delay after the Commissioner is satisfied that— (a) the risk is at an end; or (b) there is no further likelihood of prejudice to the proper investigation of the matter— but in any case not later than 6 months after the investigation is completed or, if the investigation ends before that time, before the end of the investigation.
On completing a follow up investigation, the Commissioner must decide whether or not the service provider has taken the action set out in the notice to take action.
The Commissioner must not make a decision under subsection (1) in a way which conflicts with the provisions of any Act or subordinate instrument or any rule of law or practice.
The Commissioner, in making a decision under subsection (1), must have regard to the impact on any service provider who may be affected and any other person accessing the services of that service provider.
Within 14 days after making a decision on a follow up investigation the Commissioner must give written notice of the decision to the service provider.
A notice under this section must be in writing and must— (a) specify whether or not the notice to take action has been complied with; and (b) specify the reasons for the decision.
A community visitor may visit any premises at which a disability service provider is providing a residential service with or without any previous notice at the times and periods that the community visitor thinks fit. (1A) A community visitor may visit any SDA enrolled dwelling provided under an SDA residency agreement with or without any previous notice at the times and periods that the community visitor thinks fit. (1B) A community visitor may visit any short-term accommodation and assistance dwelling with or without any previous notice at the times and periods that the community visitor thinks fit. * * * * *
The Minister may direct a community visitor to visit the premises at which a disability service provider is providing a residential service at the times that the Minister directs.
The Minister may direct a community visitor to visit an SDA enrolled dwelling provided under an SDA residency agreement at the times that the Minister directs.
The Minister may direct a community visitor to visit a short-term accommodation and assistance dwelling at the times that the Minister directs.
Except in accordance with section 131A, a community visitor must not visit an SDA enrolled dwelling provided to an SDA resident under a residential rental agreement (within the meaning of the Residential Tenancies Act 1997).
A community visitor is entitled when visiting a disability service provider providing a residential service to— (a) inspect any part of the premises in which the residential service is being provided; (b) see any resident; (c) make enquiries relating to the provision of services to the residents; (d) inspect any document relating to any resident which is not a medical record and any records required to be kept by or under this Act; (e) inspect any medical record relating to a resident with the consent of the resident or the resident's guardian.
A community visitor may perform or exercise the functions and powers specified in subsection (3) when visiting the following dwellings— (a) an SDA enrolled dwelling provided under an SDA residency agreement; (b) a short-term accommodation and assistance dwelling.
For the purposes of subsection (2), the following functions and powers are specified— (a) inspect any part of the dwelling in which the NDIS participant or SDA resident is living; (b) see any NDIS participant or SDA resident who is living in the dwelling; (c) make enquiries relating to the provision of services to any NDIS participant or SDA resident who is living in the dwelling; (d) inspect any document relating to any NDIS participant or SDA resident who is living in the dwelling, other than the medical records of the person, including documents required to be kept by a registered NDIS provider or a disability service provider that is providing services at the NDIS dwelling under this Act, the Residential Tenancies Act 1997, the NDIS Act or any regulations, rules or instruments made under the NDIS Act; (e) inspect any medical record of an NDIS participant or SDA resident who is living in the dwelling with the consent of the NDIS participant, the NDIS participant's guardian, the SDA resident or the SDA resident's guardian (as appropriate).
If a community visitor wishes to perform or exercise, or is performing or exercising, any power, duty or function under this Act, the disability service provider or the registered NDIS provider and any member of the staff or management of the disability service provider or the registered NDIS provider must provide the community visitor with such reasonable assistance as the community visitor requires to perform or exercise that power, duty or function effectively.
A disability service provider or member of the staff or management of a disability service provider or a registered NDIS provider or member of the staff or management of a registered NDIS provider must— (a) reasonably render assistance when required to do so under subsection (1); and (b) give full and true answers to the best of that person's knowledge to any questions asked by a community visitor in the performance or exercise of any power, duty or function under this Act. Penalty: 60 penalty units.
Any resident in a residential service or any person on behalf of the resident may request the disability service provider to arrange for the resident to be seen by a community visitor.
The disability service provider must within 72 hours of receiving a request under subsection (1) advise the Community Visitors Board that a request has been made. Penalty: 5 penalty units.
Unless subsection (4) applies, the Community Visitors Board must ensure a request is responded to within 7 days of the request being received under subsection (2).
For the purposes of subsection (3), if the Community Visitors Board considers that it would be appropriate in the circumstances, the Community Visitors Board may arrange for the Public Advocate to respond to the request.
The Community Visitors Board may refuse a request under subsection (2) if the Community Visitors Board considers that the request is— (a) vexatious; or (b) frivolous; or (c) lacking in substance.
Subject to subsection (2), any NDIS resident or any person on behalf of the NDIS resident may request the dwelling or support provider to arrange for the NDIS resident to be seen by a community visitor.
A person must not make a request under subsection (1) on behalf of an NDIS resident living in an SDA enrolled dwelling under a residential rental agreement (within the meaning of the Residential Tenancies Act 1997) unless the NDIS resident has consented to the person making the request on the NDIS resident's behalf.
The dwelling or support provider must advise the Community Visitors Board that a request has been made under subsection (1) within 72 hours of receiving the request. Penalty: 5 penalty units.
Unless subsection (5) applies, the Community Visitors Board must ensure a request is responded to within 7 days of the request being received under subsection (3).
For the purposes of subsection (4), if the Community Visitors Board considers that it would be appropriate in the circumstances, the Community Visitors Board may arrange for the Public Advocate to respond to the request.
The Community Visitors Board may refuse a request under subsection (3) if the Community Visitors Board considers that the request is— (a) vexatious; or (b) frivolous; or (c) lacking in substance.
In this section— dwelling or support provider means in respect of an NDIS resident living— (a) in an SDA enrolled dwelling— (i) an SDA provider; or (ii) a Supported Independent Living provider; or (iii) a disability service provider; and (b) in a short-term accommodation and assistance dwelling, the relevant registered NDIS provider; NDIS resident means— (a) an SDA resident living in an SDA enrolled dwelling; or (b) a person living in a short-term accommodation and assistance dwelling.
A disability service provider providing a residential service must keep a record of visits by community visitors to the residential service. Penalty: 5 penalty units.
If a dwelling or support provider is present when a community visitor visits an SDA enrolled dwelling or a short-term accommodation and assistance dwelling, the dwelling or support provider must keep a record of the visit. Penalty: 5 penalty units.
In this section— dwelling or support provider means in respect of an NDIS resident living— (a) in an SDA enrolled dwelling— (i) an SDA provider; or (ii) a Supported Independent Living provider; or (iii) a disability service provider; and (b) in a short-term accommodation and assistance dwelling, the relevant registered NDIS provider; NDIS resident means— (a) an SDA resident living in an SDA enrolled dwelling; or (b) a person living in a short-term accommodation and assistance dwelling.
Subject to subsection (2), this Division applies to— (a) a disability service provider or regulated service provider; and (b) a former disability service provider or former regulated service provider in relation to— (i) an accountability investigation into any matter that occurred, or is alleged to have occurred, during the 24 month period immediately before the provider ceased to be a disability service provider or regulated service provider, as the case requires, irrespective of whether the investigation has commenced; or (ii) an accountability investigation that is not concluded before the provider ceased to be a disability service provider or regulated service provider, as the case requires.
This Division does not apply to a former disability service provider or a former regulated service provider in relation to an accountability investigation regarding systemic matters across
A reference in this Division to a service provider is a reference to, as the case requires— (a) a disability service provider; or (b) a former disability service provider; or (c) a regulated service provider; or (d) a former regulated service provider. In this Division— Commissioner means the Disability Services Commissioner; investigation hearing notice means a notice served under section 132P, including a notice varied under section 132R.
The Commissioner, by instrument, may appoint any person who is employed under Part 3 of the Public Administration Act 2004, in the administration of this Act, to be an authorised officer.
Before appointing a person under subsection (1), the Commissioner must be satisfied that the person is— (a) appropriately qualified; and (b) has successfully completed appropriate training.
The Commissioner must issue an identification document to each authorised officer.
The identification document must contain— (a) a photograph of the authorised officer; and (b) the signature of the authorised officer and the Commissioner; and (c) any other information the Commissioner considers necessary.
An authorised officer must produce the authorised officer's identification document for inspection— (a) before exercising a power under this Division; and (b) at any time during the exercise of a power under this Division, if asked to do so. Penalty: 10 penalty units.
Subsection (1) does not apply to a requirement made by post.
For the purpose of the conduct of an accountability investigation, an authorised officer may visit and inspect any part of any premises on which a service provider who is being investigated provides, or provided, a service that is being investigated.
An authorised officer may visit and inspect premises under subsection (1) with any assistance the authorised officer reasonably requires.
Before exercising a power under this section, the authorised officer must— (a) produce the authorised officer's identification document for inspection by the person apparently in charge of the premises; and (b) explain the purpose of the inspection to the person apparently in charge of the premises.
A power under subsection (1) must not be exercised— (a) for a premises that is not a residential service, on the premises or any part of premises that is used for residential purposes; or (b) for a premises that is a residential service, on any part of the premises that is solely occupied by a resident unless the resident consents, or, if the resident is unable to consent the guardian of the resident or, if none, the next of kin of the resident, consents.
For the purposes of subsection (4)(b), if a room is occupied by more than one person, consent must be obtained for all occupants.
An authorised officer who visits and inspects a premises under section 132E may— (a) make any enquiries in relation to a person with a disability who is receiving, or has received, services on the premises from the service provider; and (b) require any thing on the premises to be produced for inspection and inspect that thing or any other thing on the premises to determine if the thing is relevant to the investigation; and (c) in the case of any document, or document of a particular kind, relevant to the investigation— (i) require the document to be produced for inspection; and (ii) examine, make copies of or take extracts from the document; and (iii) remove the document for so long as is necessary for the making of copies or the taking of extracts; and (d) make any still or moving image, audio recording or audio-visual recording relevant to the investigation; and (e) bring any equipment onto the premises that the authorised officer believes on reasonable grounds is necessary for the examination or processing of any documents found at the premises to determine if they are relevant to the investigation; and (f) if it is relevant to the investigation, see and interview— (i) any person with a disability who is on the premises; and (ii) any relative of the person with a disability who is on the premises; and (iii) any other person of significance to the person with a disability who is on the premises; and (g) if it is relevant to the investigation, require any of the following persons to answer any question— (i) the service provider; (ii) any person on the premises who is employed or engaged in providing the service; (iii) any person on the premises who is a volunteer involved in providing the service.
An authorised officer must not exercise a power under subsection (1)(c) in relation to the medical records of a person with a disability unless the authorised officer has first obtained the consent of the person with the disability, or, if the person is unable to consent, the consent of the guardian or, if none, the next of kin of the person.
An authorised officer must not— (a) exercise a power to interview a person with a disability under section 132F(1)(f)(i) unless the authorised officer has first obtained the consent of the person with a disability, or, if the person is unable to consent, the consent of the guardian, or, if none, the next of kin of the person; or (b) exercise a power to interview a person under section 132F(1)(f)(ii) or (iii), unless the authorised officer has first obtained the consent of that person.
If an authorised officer interviews a person with a disability under section 132F(1)(f)(i), the authorised officer must— (a) take all reasonable steps to mitigate any negative effect of the interview on the person; and (b) allow the person's guardian or next of kin to be present.
Before interviewing a person under section 132F(1)(f) or (g) the authorised officer must inform the person of the effect of sections 132X and 132Y.
The Commissioner may apply to a magistrate for the issue of a search warrant for particular premises, if the Commissioner believes on reasonable grounds that there is on the premises evidence that is relevant to an accountability investigation.
If the magistrate is satisfied, by evidence on oath or affirmation or by affidavit, that there are reasonable grounds to believe that there is evidence relevant to an accountability investigation on the premises, the magistrate may issue a search warrant in accordance with the Magistrates' Court Act 1989 authorising the Commissioner or an authorised officer to enter the premises and search for the evidence named or described in the warrant.
In addition to anything the person executing the warrant may do under section 78 of the Magistrates' Court Act 1989, under the warrant the magistrate may authorise the person to do any of the following— (a) require a document named or described in the warrant to be produced for inspection; (b) examine, make copies of or take extracts from a document named or described in the warrant; (c) remove a document named or described in the warrant for so long as is necessary to make copies of or take extracts from the document; (d) bring any equipment onto the premises that the person executing the warrant believes on reasonable grounds is necessary for the examination or processing of any document found at the premises to determine if it is named or described in the warrant.
A warrant issued under this section must state— (a) the purpose for which the search is required and the nature of the accountability investigation; and (b) any conditions to which the warrant is subject; and (c) whether entry is authorised to be made at any time of the day or night or during specified hours of the day or night; and (d) a day, not later than 20 business days after the issue of the warrant, on which the warrant ceases to have effect.
Except as provided by this Act, the rules to be observed with respect to search warrants under the Magistrates' Court Act 1989 apply to warrants issued under this section.
Despite subsection (5) and section 78(1)(b)(iii) of the Magistrates' Court Act 1989, a warrant issued under this section must not authorise the person executing the warrant to arrest a person.
A person who executes a warrant issued under section 132H— (a) must announce that the person is authorised by the warrant to enter the premises; and (b) if the person has been unable to obtain unforced entry, must give any person at the premises an opportunity to allow entry to the premises.
If the occupier is present at the premises where a warrant issued under section 132H is being executed, the person executing the warrant must— (a) identify themself to the occupier; and (b) give the occupier a copy of the warrant.
If the occupier is not present at the premises where a warrant issued under section 132H is being executed, the person executing the warrant must— (a) identify themself to the person apparently in charge of the premises; and (b) give the person a copy of the warrant. A person must not, without reasonable excuse, hinder or obstruct a person who is exercising a power under this Subdivision or under a warrant issued under this Subdivision. Penalty: In the case of a natural person, 60 penalty units; In the case of a body corporate, 300 penalty units. If it is reasonably necessary for the purposes of an accountability investigation, an authorised officer, exercising a power to visit a premises under this Subdivision or to enter a premises under a warrant under section 132H, who produces the authorised officer's identification document for inspection by the occupier of the premises or the person apparently in charge of the premises may require that person to give reasonable assistance to the authorised officer.
In an accountability investigation, the Commissioner may carry out any inquiries into the subject matter of the investigation that the Commissioner believes are necessary.
In an accountability investigation— (a) the procedure is at the discretion of the Commissioner; and (b) the Commissioner must act with as much expedition and with as little formality as the requirements of this Act and the proper investigation of the matter allow; and (c) the Commissioner is not bound by the rules of evidence; and (d) the Commissioner is bound by the rules of natural justice; and (e) before making a decision affecting a person, the Commissioner must give the person an opportunity to make submissions to the Commissioner about the decision. A person who is providing, or did provide, services that are the subject of an accountability investigation must ensure that the Commissioner or an authorised officer is provided with any assistance in connection with the investigation that the Commissioner or the authorised officer reasonably requires. In an accountability investigation if the Commissioner decides not to conduct a hearing, for the purpose of the investigation, the Commissioner— (a) may take oral or written submissions; and (b) may send for persons, documents or other things; and (c) must keep a record of all submissions given before the Commissioner and decisions made by the Commissioner.
If the Commissioner decides to conduct a hearing in an accountability investigation into a complaint, the Commissioner must give written notice of the hearing to the parties to the complaint.
If the Commissioner decides to conduct a hearing in an accountability investigation (other than for a complaint), the Commissioner— (a) must give written notice of the hearing to the service provider being investigated; and (b) if the investigation is to consider allegations of abuse or neglect of a person with a disability, may give written notice of the hearing to the person alleged to have been abused or neglected; and (c) if the investigation is to consider allegations against any person, must give written notice of the hearing to the person about whom the allegation has been made.
A notice under subsection (1) or (2) must— (a) be given at least 10 business days before the date on which the hearing is to commence; and (b) specify the date on which the hearing is to commence; and (c) specify the place at which the hearing is to be held.
For the purpose of a hearing in an accountability investigation, the Commissioner may serve written notice on a person requiring the person— (a) to produce a specified document or thing to the Commissioner before a specified time and in a specified manner; or (b) to attend the hearing at a specified time and place to produce any specified document or thing; or (c) to attend the hearing at a specified time and place, and from then on from day to day until excused, to give evidence; or (d) to attend the investigation at a specified time and place, and from then on from day to day until excused, to give evidence and to produce any specified document or thing.
On application under subsection (3), if a person with a disability is unable to attend the hearing, because of the person's disability, health or other personal circumstances, the Commissioner may agree that the person may give evidence— (a) by video link; or (b) by attending at another place agreed on by the Commissioner and the person.
A person with a disability on whom a notice to attend a hearing has been served under subsection
may apply to the Commissioner for an agreement under subsection (2).
The Commissioner must— (a) take all reasonable steps to mitigate any negative effect that the giving of evidence might have on a person with a disability; and (b) allow the person's guardian or next of kin to be present when the person with a disability gives evidence.
An investigation hearing notice— (a) must be in the prescribed form (if any); and (b) must contain the following information— (i) a statement that failure to comply with the notice without reasonable excuse is an offence, and stating the maximum penalty for that offence; (ii) examples of what may constitute a reasonable excuse for failing to comply with the notice; (iii) any other prescribed information.
A person who is served with an investigation hearing notice must not, without reasonable excuse, refuse or fail to comply with the notice. Penalty: In the case of a natural person, 120 penalty units or 12 months imprisonment or both; In the case of a body corporate, 600 penalty units.
For the purpose of subsection (1), it is a reasonable excuse if the person is acting under an agreement under section 132P(2).
A person on whom an investigation hearing notice is served may make a claim at the accountability investigation hearing— (a) that the person has or will have a reasonable excuse for failing to comply with the notice; or (b) that a document or thing specified in the notice is not relevant to the subject matter of the investigation hearing.
If the Commissioner is satisfied that the person's claim is made out, the Commissioner, by further written notice served on the person, may vary or revoke the investigation hearing notice.
The Commissioner, by further written notice served on a person, may, at any time on the Commissioner's own initiative, vary or revoke an investigation hearing notice served on the person.
In an accountability investigation hearing the Commissioner may require a person attending the hearing, whether under an investigation hearing notice or otherwise, to give evidence or answer questions on oath or affirmation.
The Commissioner, or a member of the staff of the Commissioner who is authorised to do so, may administer an oath or affirmation to a person for the purpose of subsection (1).
The Commissioner may— (a) inspect any document or thing produced at an accountability investigation hearing; and (b) retain the document or thing for so long as is reasonably necessary for the purposes of the investigation hearing to which the document or thing is relevant; and (c) copy any document or thing produced to the investigation hearing that is relevant to the subject matter of the hearing.
If the retention of a document or thing under subsection (1) ceases to be reasonably necessary for the purposes of the accountability investigation hearing, the Commissioner, at the request of any person who appears to be entitled to the document or thing, must cause the document or thing to be delivered to the person.
A person who is or was the Commissioner or a member of the staff of the Commissioner is not compellable to give evidence in a court in relation to an accountability investigation unless the court gives leave. A person who gives information or evidence or produces a document or thing to an accountability investigation has the same protection and immunity as a witness in a proceeding in the Supreme Court. A disclosure of information made to the Commissioner under or for the purposes of this Part in good faith— (a) does not for any purpose constitute unprofessional conduct or a breach of professional ethics on the part of the person who made the disclosure; and (b) does not make the person who made the disclosure subject to any liability in respect of the disclosure. It is a reasonable excuse for a person to refuse or fail to answer questions or do any other thing that the person is required to do by or under this Division, or by or under a search warrant issued under this Division if the giving of the information or the doing of that other thing would tend to incriminate the person. It is a reasonable excuse for a person to refuse or fail to answer questions or do any other thing that the person is required to do by or under this Division, or by or under a search warrant issued under this Division if the giving of the information or the doing of that other thing would be a breach of legal professional privilege or client legal privilege. A person who makes an oral or written statement in an accountability investigation or to the Commissioner under or for the purposes of this Part which the person knows to be false or misleading in a material respect is guilty of an offence and liable to a penalty not exceeding 60 penalty units.
A person must not, by threat or intimidation, persuade or attempt to persuade another person— (a) not to make a complaint to the Commissioner or not to continue discussion with or any proceeding before the Commissioner; or (b) not to provide information about allegations of abuse or neglect to the Commissioner; or (c) not to provide any other information to the Commissioner for the purposes of this Part. Penalty: 120 penalty units, in the case of a natural person;
A person must not dismiss or refuse to employ another person or subject another person to any detriment, because the other person— (a) intends to make a complaint, or has made a complaint, to the Commissioner; or (b) intends to take part in, is taking part in, or has taken part in, discussions with or proceedings before the Commissioner; or (c) intends to or provides information about allegations of abuse or neglect to the Commissioner; or (d) intends to or provides any other information to the Commissioner for the purposes of this Part. Penalty: 120 penalty units, in the case of a natural person;
The Commissioner may give information acquired in the course of administering Divisions 6, 6A, 6B, 6C or this Division, or conducting an inquiry under section 16(c), to any of the following persons if the information is relevant to the performance of a function by the Commissioner or that person— (a) the Minister; (b) the Secretary; (c) the Ombudsman; (d) IBAC; (e) the Commissioner for Privacy and Data Protection; (f) the Mental Health Complaints Commissioner; (g) the Health Complaints Commissioner; (h) the Public Advocate; (i) a community visitor; (j) the Commission for Children and Young People; (k) Victoria Police; (l) the State Coroner; (m) any person prescribed by the regulations.
A prescribed person must not disclose or make a record of any information gained by that person in the performance of functions or duties or the exercise of powers under this Act, except as authorised under subsection (2). Penalty: 60 penalty units.
For the purposes of subsection (1), a prescribed person is authorised to disclose or make a record of the information— (a) if it is necessary to do so for the purposes of, or in connection with, the performance of a function or duty or the exercise of a power under this Act; or (b) if the person or body to whom the information relates gives written consent to the disclosure or the making of the record; or (c) if the information or record is disclosed to a court or tribunal in the course of criminal proceedings or on the order of the court or tribunal; or (d) if the disclosure or the making of the record is for the purposes of obtaining legal advice; or (e) if the disclosure or the making of the record is otherwise authorised by this Act.
Without limiting subsection (1), a prescribed person must not disclose any information given to the prescribed person under a requirement under this Part (including information contained in a document required to be produced to the prescribed person) except as authorised under subsection (4). Penalty: 60 penalty units.
For the purposes of subsection (3), the prescribed person is authorised to disclose the information— (a) if— (i) the prescribed person has advised the person from whom the information was obtained of the proposal to disclose the information; and (ii) the prescribed person has given that person a reasonable opportunity to consent to the disclosure; and (iii) the person from whom the information was obtained has consented to the proposal to disclose that information; or (b) if the information is disclosed to another prescribed person for the purpose of that person or the Commissioner exercising powers or performing functions under this or any other Act.
In this section— prescribed person means a person who is, or has been— (a) the Commissioner; or (b) a delegate of the Commissioner; or (c) an employee in the office of the Commissioner; or (d) a consultant engaged by the Commissioner.
Subject to subsection (2), this Division applies to— (a) a disability service provider or regulated service provider; and (b) a former disability service provider or former regulated service provider in relation to— (i) an investigation under Division 6, 6A, 6B, 6C or 8 into any matter that occurred, or is alleged to have occurred, during the 24 month period immediately before the provider ceased to be a disability service provider or regulated service provider, as the case requires, irrespective of whether the investigation has commenced; or (ii) any investigation under Division 6, 6A, 6B, 6C or 8 that is not concluded before the provider ceased to be a disability service provider or regulated service provider, as the case requires.
This Division does not apply to a former disability service provider or a former regulated service provider in relation to an investigation regarding systemic matters across 2 or more service providers unless the investigation commenced before each service provider ceased to be a disability service provider or regulated service provider, as the case requires.
A reference in this Division to a service provider is a reference to, as the case requires— (a) a disability service provider; or (b) a former disability service provider; or (c) a regulated service provider; or (d) a former regulated service provider. In this Division— Commissioner means the Disability Services Commissioner.
As soon as possible after completing a systemic initiated investigation, the Commissioner must give the Minister and the Secretary a report of the investigation.
After completing an individual initiated investigation, the Commissioner may give the Minister or the Secretary a report of the investigation.
After completing a referral investigation, the Commissioner must give the Minister and the Secretary a report in writing of the investigation. If a report to the Minister or Secretary under section 132ZE makes an adverse comment on or gives an adverse opinion of an individual or a service provider, at least 14 days before giving the report the Commissioner must— (a) give a copy of the relevant part of the report to the individual or service provider; and (b) give the individual or service provider a reasonable opportunity to comment on the adverse comment or opinion.
Subject to subsection (2), the Commissioner may give a copy of a report under section 132ZE(1) to the clerk of each House of the Parliament— (a) no less than 14 days after giving the report to the Minister and Secretary under section 132ZE; and (b) if section 132ZF has been complied with.
The Commissioner must not give a copy of a report to the clerk of each House of the Parliament under subsection (1) if the report identifies or names an individual, or contains information which enables an individual to be identified.
The clerk of each House of the Parliament must cause the report to be laid before the House on— (a) the day on which it is received; or (b) the next sitting day of the House.
If the Commissioner proposes to give the report to Parliament when neither House of the Parliament is sitting, the Commissioner must— (a) give one business day's notice of the Commissioner's intention to do so to the clerk of each House of the Parliament; and (b) give the copy of the report to the clerk of each House of the Parliament on the day indicated in the notice; and (c) cause the report to be published by the Government Printer.
The clerk of a House of the Parliament must notify each member of the House of the receipt of a notice under subsection (4)(a) as soon as practicable after the clerk receives the notice.
On receiving a copy of the report under subsection (4)(b), the clerk of the House of the Parliament must— (a) as soon as practicable after the report is received, notify each member of the House of the receipt of the report and advise that the report is available on request; and (b) give a copy of the report to any member of the House on request; and (c) cause the copy of the report to be laid before the House on the next sitting day of the House.
A copy of a report that is given to the clerk of a House of the Parliament under subsection (1) or (4)(b) is taken to have been published by order, or under the authority, of that House. The Commissioner may liaise with other investigative authorities, official bodies and statutory officers— (a) to avoid unnecessary duplication of inquiries or investigations; and (b) to facilitate the coordination and expedition of inquiries or investigations that are to be separately conducted by different authorities, bodies or officers.
For the purposes of Part 6B or Part 8, a registered NDIS provider that intends to use restrictive practices or compulsory treatment on NDIS participants— (a) must appoint an Authorised Program Officer; and (b) may appoint more than one Authorised Program Officer.
A registered NDIS provider who proposes to appoint an Authorised Program Officer must apply to the Senior Practitioner for approval of the proposed appointment.
An application for approval must include— (a) the name of the proposed Authorised Program Officer; and (b) the qualifications of the proposed Authorised Program Officer; and (c) any other information requested by the Senior Practitioner.
The Senior Practitioner may approve the appointment of one or more Authorised Program Officers subject to any conditions that the Senior Practitioner considers appropriate.
The Senior Practitioner must keep a register of the name and qualifications of each Authorised Program Officer appointed under this Part. The Senior Practitioner may revoke the approval of the appointment of an Authorised Program Officer if the Senior Practitioner considers it appropriate to do so. The Senior Practitioner must give written notice to the NDIS Commissioner if the Senior Practitioner— (a) refuses to approve the appointment of an Authorised Program Officer; or (b) revokes the appointment of an Authorised Program Officer.
The Senior Practitioner must not refuse an application under section 132ZJ or revoke approval of the appointment of an Authorised Program Officer under section 132ZK unless the Senior Practitioner has given a written notice to the registered NDIS provider in accordance with subsection (2) and has considered any submission made by the registered NDIS provider.
The notice must specify— (a) the proposed decision and the reasons for the proposed decision; and (b) that the registered NDIS provider may make a written submission within 14 days after the notice is given.
A registered NDIS provider may apply to VCAT for a review of a decision by the Senior Practitioner— (a) to refuse an application for approval of an appointment of an Authorised Program Officer under section 132ZJ; or (b) to revoke the appointment of an Authorised Program Officer under section 132ZK.
An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the registered NDIS provider requests a statement of reasons for the decision, the day on which the statement of reasons is given to the registered NDIS provider or the registered NDIS provider is informed under section 46(5) of that Act that a statement of reasons will not be given.
The Senior Practitioner may issue directions to registered NDIS providers in relation to— (a) the minimum qualifications required to be held by persons who are proposed Authorised Program Officers; and (b) training to be completed by Authorised Program Officers; and (c) any other matter in relation to Authorised Program Officers.
A direction issued by the Senior Practitioner under this section must be published on the Department's internet site.
This Part applies to NDIS participants other than persons for whom a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider is in force.
The purpose of this Part is to protect the rights of NDIS participants to whom this Part applies by ensuring that regulated restrictive practices are used on those NDIS participants only if their use is authorised. A registered NDIS provider must not use a regulated restrictive practice on an NDIS participant unless— (a) an authorisation under section 132ZR(1) for use of the regulated restrictive practice is in force and— (i) if the regulated restrictive practice is in the form of seclusion, physical restraint or mechanical restraint, the use of that form has been approved by the Senior Practitioner; and (ii) if the regulated restrictive practice is in the form of a restrictive practice that requires the Senior Practitioner's approval under section 132ZV, the use of that form has been approved by the Senior Practitioner; and (iii) if the use of the regulated restrictive practice on a specified person or class of persons requires the Senior Practitioner's approval under section 132ZV, the use of the regulated restrictive practice in that circumstance has been approved by the Senior Practitioner; and (iv) the matters referred to in section 132ZR(1)(a), (b), (d) and (f) are satisfied; or (b) an authorisation under section 132ZX(2) is in force.
The Authorised Program Officer may authorise the use of a regulated restrictive practice on an NDIS participant if the Authorised Program Officer is satisfied that— (a) the proposed use of the regulated restrictive practice is necessary to prevent the NDIS participant from causing physical harm to the NDIS participant or another person; and (b) the use and form of the proposed regulated restrictive practice— (i) is the option which is the least restrictive of the NDIS participant as is possible in the circumstances; and (ii) is included in the NDIS participant's NDIS behaviour support plan; and (iii) is in accordance with the NDIS participant's NDIS behaviour support plan; and (iv) is not applied for longer than the period of time during which the use of the regulated restrictive practice is necessary under paragraph (a); and (c) the NDIS behaviour support plan is in accordance with the requirements of the NDIS (Restrictive Practices and Behaviour Support) Rules; and (d) if seclusion is to be used— (i) the NDIS participant is supplied with bedding and clothing which is appropriate in the circumstances; and (ii) the NDIS participant has access to adequate heating or cooling as is appropriate in the circumstances; and (iii) the NDIS participant is provided with food and drink at the appropriate times; and (iv) the NDIS participant is provided with adequate toilet arrangements; and (e) the Authorised Program Officer has complied with section 132ZS; and (f) any other requirements imposed by the Senior Practitioner are complied with.
An authorisation given under this section is in force until— (a) the authorisation is revoked; or (b) if the NDIS participant's NDIS behaviour support plan is reviewed and, in consequence of the review, a new plan is developed; or (c) the NDIS participant's NDIS behaviour support plan expires— whichever happens soonest.
An authorisation may be subject to any condition that the Authorised Program Officer considers appropriate, other than a condition requiring the variation of an NDIS behaviour support plan.
An Authorised Program Officer must ensure that an independent person is available to explain to an NDIS participant to whom this Part applies— (a) the proposed use of regulated restrictive practices on the NDIS participant; and (b) that the NDIS participant may seek, as the case requires— (i) a review of the Authorised Program Officer's decision to authorise the use of regulated restrictive practices under section 132ZR; or (ii) a joint review of the Authorised Program Officer's decision to authorise the use of regulated restrictive practices under section 132ZR and the Senior Practitioner's decision to approve the use of regulated restrictive practices under section 132ZV. Section 132ZR(1)(e) provides that authorisation for use of a regulated restrictive practice under this Part may only be given if the Authorised Program Officer has complied with this section.
Subject to subsection (3), if changes are proposed to an NDIS behaviour support plan as a result of a review of the plan by an NDIS behaviour support practitioner, an Authorised Program Officer must ensure that an independent person is available to explain to the NDIS participant for whom the NDIS behaviour support plan was reviewed— (a) the details of those changes; and (b) if those changes involve the inclusion of a more restrictive form or use of regulated restrictive practice, any matter related to the inclusion of the regulated restrictive practice.
An Authorised Program Officer is not required to ensure that an independent person is available under subsection (2) if— (a) it is not proposed, as a result of the review, that a more restrictive form or use of regulated restrictive practice be included in the NDIS behaviour support plan; and (b) the NDIS participant for whom the NDIS behaviour support plan was prepared has had the plan reviewed by the NDIS behaviour support practitioner in the last 12 months; and (c) during that review, an independent person was available in accordance with this section.
If the independent person considers that— (a) the NDIS participant is not able to understand the proposal to use the regulated restrictive practices; and (b) the requirements of this Part or the relevant requirements of the NDIS Act or NDIS (Restrictive Practices and Behaviour Support) Rules are not being complied with— the independent person may report the matter to the Public Advocate or the Senior Practitioner.
An independent person assisting the NDIS participant must not— (a) be a disability service provider or an NDIS provider for the NDIS participant; or (b) be a representative of a disability service provider or an NDIS provider for the NDIS participant; or (c) have any interest in a disability service provider or an NDIS provider for the NDIS participant; or (d) have any responsibility in relation to the development or review of the NDIS participant's NDIS behaviour support plan.
If an NDIS participant advises the registered NDIS provider or the Authorised Program Officer that the NDIS participant does not consider that the person assisting the NDIS participant is an independent person, the Authorised Program Officer must arrange for an independent person to assist the NDIS participant. After considering a report received under section 132ZS(4), the Public Advocate may do one or more of the following— (a) refer the matter to the Senior Practitioner; (b) within 28 days after receiving the report, initiate an application to VCAT to review the decision by the Authorised Program Officer to authorise the use of regulated restrictive practices and, as the case requires, the decision by the Senior Practitioner to approve the use of regulated restrictive practices; (c) disclose information to the NDIA or the NDIS Quality and Safeguards Commission about the use or proposed use of a regulated restrictive practice by a registered NDIS provider.
Within 2 working days after authorising the use of regulated restrictive practices on an NDIS participant under section 132ZR, the Authorised Program Officer must ensure the following is provided to the Senior Practitioner— (a) a copy of the NDIS participant's NDIS behaviour support plan; (b) the name and details of the independent person who assisted the NDIS participant; (c) any information provided to the NDIS Quality and Safeguards Commission in relation to the use of a regulated restrictive practice that is not included in the NDIS participant's NDIS behaviour support plan; (d) any other information required by the Senior Practitioner.
A registered NDIS provider must give an NDIS participant a notice in accordance with subsection
at least 2 working days before the use of the relevant regulated restrictive practice on the NDIS participant.
For the purposes of subsection (2), the notice must state that— (a) the Authorised Program Officer has authorised the use of a regulated restrictive practice on the NDIS participant under section 132ZR and, as the case requires, the Senior Practitioner has approved the use of a regulated restrictive practice under section 132ZV; and (b) the NDIS participant may seek, as the case requires— (i) a review of the Authorised Program Officer's decision to authorise the use of regulated restrictive practices under section 132ZR; or (ii) a joint review of the Authorised Program Officer's decision to authorise the use of regulated restrictive practices under section 132ZR and the Senior Practitioner's decision to approve the use of regulated restrictive practices under section 132ZV.
If the Senior Practitioner is satisfied of the matters set out in subsection (2), the Senior Practitioner may give approval to use— (a) a regulated restrictive practice in the form of seclusion, physical restraint or mechanical restraint; or (b) a form of regulated restrictive practice that is the subject of a direction issued by the Senior Practitioner that requires the Senior Practitioner's approval; or (c) a regulated restrictive practice on a specified person or class of persons that is the subject of a direction issued by the Senior Practitioner that requires the Senior Practitioner's approval.
For the purposes of subsection (1), the Senior Practitioner must be satisfied of the following— (a) the proposed use of the proposed regulated restrictive practice is necessary to prevent the NDIS participant from causing physical harm to the NDIS participant or another person; (b) the use and form of the proposed regulated restrictive practice is the option which is the least restrictive of the NDIS participant as is possible in the circumstances; (c) the use and form of the proposed regulated restrictive practice— (i) is included in the NDIS participant's NDIS behaviour support plan; and (ii) is in accordance with the NDIS participant's NDIS behaviour support plan; and (iii) is not applied for longer than the period of time during which the use of the regulated restrictive practice is necessary under paragraph (a); (d) the NDIS behaviour support plan is in accordance with the requirements of the NDIS (Restrictive Practices and Behaviour Support) Rules; (e) if seclusion is to be used, that— (i) the NDIS participant is supplied with bedding and clothing which is appropriate in the circumstances; and (ii) the NDIS participant has access to adequate heating or cooling as is appropriate in the circumstances; and (iii) the NDIS participant is provided with food and drink at the appropriate times; and (iv) the NDIS participant is provided with adequate toilet arrangements; (f) any other requirements imposed by the Senior Practitioner are complied with.
An approval given under this section is in force until— (a) the approval is revoked; or (b) if the NDIS participant's NDIS behaviour support plan is reviewed and, in consequence of the review, a new plan is developed; or (c) the NDIS participant's NDIS behaviour support plan expires— whichever happens soonest.
If satisfied that it is appropriate to do so, the Senior Practitioner may lodge evidence with the NDIS Commissioner or the registered NDIS provider that the proposed use of regulated restrictive practices on an NDIS participant is authorised by the Authorised Program Officer and, as the case requires, approved by the Senior Practitioner.
If an Authorised Program Officer authorises the use of a regulated restrictive practice on an NDIS participant under section 132ZR and that use does not also require the approval of the Senior Practitioner under section 132ZV, the NDIS participant may apply to VCAT for review of the Authorised Program Officer's decision to authorise the use within 28 days after the day on which the NDIS participant is notified of the decision.
If an Authorised Program Officer authorises the use of a regulated restrictive practice on an NDIS participant under section 132ZR and that use also requires the approval of the Senior Practitioner under section 132ZV, the NDIS participant may apply to VCAT for a joint review of the decision to authorise the use and the decision to approve the use within 28 days after the day on which the NDIS participant is notified of the Senior Practitioner's decision to approve the use.
A registered NDIS provider may apply to VCAT for review of a decision by the Senior Practitioner not to approve the use of a regulated restrictive practice under section 132ZV within 28 days after the day on which the registered NDIS provider is notified of the decision.
On an application under this section, VCAT must determine the review having regard to the requirements of this Part.
Following a review under subsection (1), VCAT may— (a) confirm the decision to authorise the use of the regulated restrictive practice and dismiss the application; or (b) order the registered NDIS provider to request a review of the NDIS participant's NDIS behaviour support plan by the NDIS behaviour support practitioner; or (c) direct that the regulated restrictive practice not be used on the NDIS participant.
Following a review under subsection (2), VCAT may— (a) confirm the decisions to authorise and approve the use of the regulated restrictive practice and dismiss the application; or (b) order the registered NDIS provider to request a review of the NDIS participant's NDIS behaviour support plan by the NDIS behaviour support practitioner; or (c) direct that the regulated restrictive practice not be used on the NDIS participant.
Following a review under subsection (3), VCAT may— (a) confirm the Senior Practitioner's decision not to approve the use of the regulated restrictive practice and dismiss the application; or (b) order the registered NDIS provider to request a review of the NDIS participant's NDIS behaviour support plan by the NDIS behaviour support practitioner; or (c) direct the Senior Practitioner to approve the use of the regulated restrictive practice on the NDIS participant.
This section applies if— (a) an NDIS participant— (i) does not have an NDIS behaviour support plan which provides for the use of regulated restrictive practices; or (ii) has an NDIS behaviour support plan which provides for the use of regulated restrictive practices but that use is not authorised by the Authorised Program Officer and, if the case requires, is not approved by the Senior Practitioner; and (b) the person in charge of the relevant registered NDIS provider is of the opinion that there is an emergency because— (i) there is an imminent risk of the NDIS participant causing serious physical harm to the NDIS participant or another person; and (ii) it is necessary to use a regulated restrictive practice to prevent that risk.
The registered NDIS provider is authorised to use a regulated restrictive practice on the NDIS participant if— (a) the proposed use and form of the regulated restrictive practice is the option which is the least restrictive of the NDIS participant as is possible in the circumstances; and (b) the use of the regulated restrictive practice is authorised by the person in charge of the registered NDIS provider and the Authorised Program Officer is notified without delay of the use of the regulated restrictive practice.
If an Authorised Program Officer has not been appointed for the registered NDIS provider and the registered NDIS provider intends to continue to use a regulated restrictive practice on the NDIS participant (subject to obtaining the required authorisation under section 132ZR and, as the case requires, approval under section 132ZV), the registered NDIS provider must appoint an Authorised Program Officer as soon as practicable in accordance with Part 6A.
The Senior Practitioner may give written directions in relation to one or more of the matters set out in subsection (2) to one or more of the following— (a) registered NDIS providers; (b) a specified registered NDIS provider; (c) registered NDIS providers belonging to a specified class of registered NDIS providers.
For the purposes of subsection (1) the matters are as follows— (a) prohibiting the use of a specified restrictive practice; (b) prohibiting the use of a specified class of restrictive practice; (c) regulating the use of a specified restrictive practice; (d) regulating the use of a specified class of restrictive practice; (e) prohibiting or regulating the use of a specified restrictive practice on a person belonging to a specified class of NDIS participants; (f) prohibiting or regulating the use of a specified class of restrictive practices on a person belonging to a specified class of NDIS participants; (g) requiring approval from the Senior Practitioner for the use of a specified restrictive practice; (h) requiring approval from the Senior Practitioner for the use of a specified class of restrictive practice; (i) requiring approval from the Senior Practitioner for the use of a specified class of restrictive practice on a person belonging to a specified class of NDIS participants; (j) guidelines and standards in relation to the use of restrictive practices.
The Senior Practitioner may in respect of restrictive practices used by registered NDIS providers require a registered NDIS provider to provide a report to the Senior Practitioner on the use of restrictive practices by the registered NDIS provider.
This Part applies to persons (other than persons for whom a treatment plan is in force or is required to be prepared under Part 8) who— (a) receive disability services; or (b) are children placed with an out of home care service under the Children, Youth and Families Act 2005 and— (i) are NDIS participants who do not have an NDIS behaviour support plan; or (ii) have a disability and whom the Secretary has declared, by notice provided to the out of home care service with whom the children are placed, to be persons to whom this Part applies.
The purpose of this Part is to protect the rights of persons to whom this Part applies by ensuring that restrictive practices are— (a) included in behaviour support plans for those persons only in accordance with this Part; and (b) used on those persons only if the requirements imposed by this Part are complied with.
A disability service provider is not required to comply with the requirements of this Part in relation to an NDIS participant if the disability service provider— (a) is a registered NDIS provider; and (b) complies with the requirements of Part 6B in relation to the NDIS participant.
A disability service provider must not use a restrictive practice on a person to whom this Part applies unless there is in force an approval under section 135. Penalty: 240 penalty units.
A disability service provider, other than the Secretary, who proposes to use restrictive practices in the provision of a disability service must apply to the Secretary for approval.
An application for approval must include— (a) the prescribed details; and (b) a request for approval of the title of any position and the name of the holder of the position to be appointed as an Authorised Program Officer for the disability service provider. (2A) An application for approval may request the approval of more than one person to be appointed as an Authorised Program Officer for the disability service provider.
The Secretary may grant an application for approval subject to any conditions that the Secretary considers appropriate.
In the case of a disability service in respect of which the disability service provider is the Secretary, the Secretary— (a) is to be taken to be approved to use restrictive practices; and (b) must ensure that an Authorised Program Officer is appointed for the disability service; and (c) must approve the title of any position and the name of the holder of the position to be appointed as an Authorised Program Officer.
The Secretary may approve more than one person to be appointed as an Authorised Program Officer for the disability service provider.
The Senior Practitioner may issue directions to disability service providers in relation to— (a) the minimum qualifications required to be held by persons who are proposed Authorised Program Officers; and (b) training to be completed by Authorised Program Officers; and (c) any other matter in relation to Authorised Program Officers.
A direction issued by the Senior Practitioner under this section must be published on the Department's internet site.
The Secretary may revoke the approval of a disability service provider to use restrictive practices if the Secretary considers it appropriate to do so.
For the purposes of subsection (1), the Secretary may have regard to the following— (a) the registration of the disability service provider has been revoked; (b) the disability service provider has failed to comply with requirements under this Act; (c) any other circumstances that the Secretary considers relevant.
The Secretary must not refuse an application under section 135 or revoke the approval of a disability service provider to use restrictive practices under section 136(1) unless the Secretary has given a notice in writing to the disability service provider in accordance with subsection (2) and has considered any submission made by the disability service provider.
The notice must specify— (a) the proposed decision and the reasons for the proposed decision; (b) that the disability service provider may make a submission in writing within 14 days of the notice being given.
A disability service provider may apply to VCAT for a review of a decision by the Secretary— (a) to refuse an application under section 135; or (b) to revoke the approval of a disability service provider to use restrictive practices under section 136(1).
An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the disability service provider requests a statement of reasons for the decision, the day on which the statement of reasons is given to the disability service provider or the disability service provider is informed under section 46(5) of that Act that a statement of reasons will not be given.
An Authorised Program Officer must ensure that any restrictive practice used on a person to whom this Part applies in the provision of a disability service for which the Authorised Program Officer is responsible is administered in accordance with this Part.
A disability service provider must advise the Senior Practitioner of the name and qualifications of any person appointed as an Authorised Program Officer in the manner and within the period determined by the Senior Practitioner. Penalty: 10 penalty units.
The Senior Practitioner must keep a register of the name and qualifications of each Authorised Program Officer.
Despite anything to the contrary in section 140, a disability service provider may use a regulated restrictive practice on a person to whom this Part applies and who is also an NDIS participant with an NDIS behaviour support plan if the matters set out in section 132ZQ(a) are met in relation to the person. Sections 134 and 135(1) apply in relation to a disability service provider using a regulated restrictive practice under subsection (1).
A disability service provider who uses regulated restrictive practices on a person under subsection
must within 7 days after the end of an interval specified by the Senior Practitioner provide a report to the Senior Practitioner that records— (a) all instances in which the regulated restrictive practices were used during the period for which the report is prepared; and (b) any other details required by the Senior Practitioner.
The Senior Practitioner may issue directions to disability service providers to whom subsection
applies in relation to the use of regulated restrictive practices under that subsection.
Regulated restrictive practices must not be used by a disability service provider on a person to whom this Part applies unless section 147 applies or— (a) the use of a regulated restrictive practice is necessary— (i) to prevent the person from causing physical harm to themselves or any other person; or (ii) to prevent the person from destroying property where to do so could involve the risk of harm to themselves or any other person; and (b) the use and form of a regulated restrictive practice is the option which is the least restrictive of the person as is possible in the circumstances; and (c) the use and form of a regulated restrictive practice— (i) is included in the person's behaviour support plan; and (ii) is in accordance with the person's behaviour support plan; and (iii) is not applied for longer than the shorter of the following periods— (A) the period of time that has been authorised by the Authorised Program Officer; or (B) the period of time during which the use of the regulated restrictive practice is necessary under paragraph (a); and (d) if seclusion is to be used— (i) the person is supplied with bedding and clothing which is appropriate in the circumstances; and (ii) the person has access to adequate heating or cooling as is appropriate in the circumstances; and (iii) the person is provided with food and drink at the appropriate times; and (iv) the person is provided with adequate toilet arrangements; and (e) any other requirements imposed by the Senior Practitioner are complied with. Section 201D is a corresponding provision in relation to persons for whom treatment plans are in force or are required to be prepared under Part 8.
This section applies if a disability service provider providing a disability service to a person to whom this Part applies— (a) is satisfied that the criteria specified in sections 140(a) and 140(b) apply; and (b) proposes to use a regulated restrictive practice on the person.
The disability service provider must develop a behaviour support plan for the person to whom this Part applies that includes provisions which— (a) state the circumstances in which the proposed form of a regulated restrictive practice is to be used for behaviour support; (b) explain how the use of a regulated restrictive practice will be of benefit to the person; (c) demonstrate that the use of a regulated restrictive practice is the option which is the least restrictive of the person as is possible in the circumstances.
In preparing the behaviour support plan, the disability service provider must consult with— (a) the person for whom the behaviour support plan is prepared; (b) if the person for whom the behaviour support plan is prepared has a guardian, the guardian; (c) if other disability service providers provide disability services to the person for whom the behaviour support plan is prepared, a representative of each disability service provider; (ca) if any registered NDIS providers provide services under the NDIS to the person for whom the behaviour support plan is prepared, a representative of each registered NDIS provider; (d) any other person that the disability service provider considers integral to the development of the behaviour support plan.
A behaviour support plan prepared under section 141 must be reviewed by the disability service provider at intervals of not more than— (a) 12 months; or (b) if the Authorised Program Officer or the Senior Practitioner specify a shorter period, the shorter period.
A person for whom a behaviour support plan has been prepared under section 141 may at any time request the disability service provider to review the behaviour support plan.
In reviewing the behaviour support plan, the disability service provider must consult with— (a) the person for whom the behaviour support plan was prepared; (b) if the person for whom the behaviour support plan was prepared has a guardian, the guardian; (c) if other disability service providers provide disability services to the person for whom the behaviour support plan was prepared, a representative of each disability service provider; (ca) if any registered NDIS providers provide services under the NDIS to the person for whom the behaviour support plan is prepared, a representative of each registered NDIS provider; (d) any other person that the disability service provider considers integral to the review of the behaviour support plan.
An Authorised Program Officer must ensure that an independent person is available to explain to a person to whom this Part applies— (a) the inclusion of the proposed use of a regulated restrictive practice in the person's proposed behaviour support plan; (b) that the person may seek, as the case requires— (i) a review of the Authorised Program Officer's decision to approve the inclusion of the proposed use of the regulated restrictive practice in the person's behaviour support plan under section 145; or (ii) a joint review of the Authorised Program Officer's decision to approve the inclusion of the proposed use of the regulated restrictive practice in the person's behaviour support plan under section 145 and the Senior Practitioner's decision to approve the use of the form of regulated restrictive practice under section 145A.
* * * * * (1A) Subject to subsection (1B), if changes are proposed to a behaviour support plan as a result of a review of the plan by a disability service provider, an Authorised Program Officer must ensure that an independent person is available to explain to the person for whom the behaviour support plan was prepared— (a) the details of those changes; and (b) if those changes involve the inclusion of a more restrictive form or use of a regulated restrictive practice, any matter related to the inclusion of the regulated restrictive practice. (1B) An Authorised Program Officer is not required to ensure that an independent person is available under subsection (1A) if— (a) it is not proposed, as a result of the review, that a more restrictive use or form of a regulated restrictive practice be included in the behaviour support plan; and (b) the person for whom the behaviour support plan was prepared has had his or her behaviour support plan reviewed by the disability service provider in the last
(c) during that review, an independent person was available in accordance with this section.
If the independent person considers that— (a) a person for whom a behaviour support plan was prepared is not able to understand the inclusion of the use of a regulated restrictive practice in the person's behaviour support plan; and (b) the requirements of sections 140, 141, 142 and 143 are not being complied with— the independent person may report the matter to the Public Advocate or the Senior Practitioner.
An independent person assisting a person to whom this Part applies must not— (a) be a disability service provider or an NDIS provider; or (b) be a representative of a disability service provider or an NDIS provider; or (c) have any interest in a disability service provider or an NDIS provider who provides services to the person.
If a person to whom this Part applies advises the disability service provider or the Authorised Program Officer that he or she does not consider that the person assisting him or her is an independent person, the Authorised Program Officer must arrange for an independent person to assist the person to whom this Part applies.
After considering a report received under section 143, the Public Advocate may— (a) refer the matter to the Senior Practitioner; or (b) within 28 days of receiving the report, initiate an application to VCAT to review the decision to include the use of a regulated restrictive practice in the behaviour support plan.
This section is in addition to the powers of the Public Advocate under the Guardianship and Administration Act 2019.
A regulated restrictive practice must not be used on a person unless— (a) the inclusion of the proposed use of the regulated restrictive practice in the behaviour support plan prepared under section 141 or reviewed under section 142 is approved by the Authorised Program Officer; and (b) if the regulated restrictive practice is in the form of seclusion, physical restraint or mechanical restraint, the use of that form has been approved by the Senior Practitioner; and (c) if the regulated restrictive practice is in the form of a restrictive practice that requires the Senior Practitioner's approval under section 145A, the use of that form has been approved by the Senior Practitioner; and (d) if the use of the regulated restrictive practice on a specified person or class of persons requires the Senior Practitioner's approval under section 145A, the use of the regulated restrictive practice in that circumstance has been approved by the Senior Practitioner.
The Authorised Program Officer must not approve the inclusion of the proposed use of regulated restrictive practices in the behaviour support plan unless the Authorised Program Officer is satisfied that the behaviour support plan has been prepared or reviewed in accordance with this Act.
If the Authorised Program Officer has approved the inclusion of the proposed use of regulated restrictive practices in the behaviour support plan under subsection (1) and, as the case requires, the Senior Practitioner has given approval under section 145A, the disability service provider must at least 2 days before the proposed use of regulated restrictive practices notify in writing the person to whom this Part applies— (a) that the Authorised Program Officer has approved the inclusion of the proposed use of regulated restrictive practices in the person's behaviour support plan and, as the case requires, the Senior Practitioner has given approval under section 145A; and (b) the person may seek, as the case requires— (i) a review of the Authorised Program Officer's decision to approve the inclusion of the proposed use of the regulated restrictive practice in the person's behaviour support plan under this section; or (ii) a joint review of the Authorised Program Officer's decision to approve the inclusion of the proposed use of the regulated restrictive practice in the person's behaviour support plan under this section and the Senior Practitioner's decision to approve the use of the form of regulated restrictive practice under section 145A.
The Authorised Program Officer must within 2 working days of approving the inclusion of regulated restrictive practices in the behaviour support plan under subsection (1) provide to the Senior Practitioner— (a) a copy of the behaviour support plan; and (b) the name and details of the independent person who assisted the person to whom this Part applies.
Unless the Senior Practitioner has given approval to do so, a disability service provider must not use— (a) a regulated restrictive practice in the form of seclusion, physical restraint or mechanical restraint; or (b) a form of regulated restrictive practice that is the subject of a direction issued by the Senior Practitioner requiring the Senior Practitioner's approval; or (c) a form of regulated restrictive practice if the use of the regulated restrictive practice on a specified person or class of persons is the subject of a direction issued by the Senior Practitioner requiring the Senior Practitioner's approval.
The Senior Practitioner may approve the use of a regulated restrictive practice of a form referred to in subsection (1) if the Senior Practitioner is satisfied that— (a) the use of the proposed regulated restrictive practice is necessary— (i) to prevent the person from causing physical harm to themselves or any other person; or (ii) to prevent the person from destroying property where to do so could involve the risk of harm to themselves or any other person; and (b) the use and form of regulated restrictive practice is the option which is the least restrictive of the person as is possible in the circumstances; and (c) the use and form of regulated restrictive practice— (i) is included in the person's behaviour support plan; and (ii) is in accordance with the person's behaviour support plan; and (iii) is not applied for longer than the period of time during which the use of the regulated restrictive practice is necessary under paragraph (a); and (d) if seclusion is to be used— (i) the person is supplied with bedding and clothing which is appropriate in the circumstances; and (ii) the person has access to adequate heating or cooling as is appropriate in the circumstances; and (iii) the person is provided with food and drink at the appropriate times; and (iv) the person is provided with adequate toilet arrangements.
If the Authorised Program Officer approves the inclusion of the proposed use of a regulated restrictive practice in a person's behaviour support plan under section 145, and the use of the regulated restrictive practice does not also require the approval of the Senior Practitioner under section 145A, the person may apply to VCAT for review of the Authorised Program Officer's decision within 28 days after the day on which the person is notified of the decision. (1A) If the Authorised Program Officer approves the inclusion of the proposed use of a regulated restrictive practice in a person's behaviour support plan under section 145, and the use of the regulated restrictive practice also requires the approval of the Senior Practitioner under section 145A, the person may apply to VCAT for a joint review of the Authorised Program Officer's decision and the Senior Practitioner's decision within 28 days after the day on which the person is notified of the Senior Practitioner's decision. (1B) A disability service provider may apply to VCAT for review of a decision by the Senior Practitioner under section 145A not to approve the use of a regulated restrictive practice within 28 days after the day on which a disability service provider is notified of the decision.
On an application under this section, VCAT must determine the review having regard to the requirements of this Part.
Following a review under subsection (1), VCAT may— (a) confirm the Authorised Program Officer's decision to approve the inclusion of the proposed use of the regulated restrictive practice in the behaviour support plan and dismiss the application; or (b) order the disability service provider to prepare a new behaviour support plan in accordance with the order; or (c) direct that the regulated restrictive practice be removed from the behaviour support plan.
Following a review under subsection (1A), VCAT may— (a) confirm the decisions of the Authorised Program Officer and Senior Practitioner and dismiss the application; or (b) order the disability service provider to prepare a new behaviour support plan in accordance with the order; or (c) direct that the regulated restrictive practice be removed from the behaviour support plan.
Following a review under subsection (1B), VCAT may— (a) confirm the Senior Practitioner's decision not to approve the use of the regulated restrictive practice and dismiss the application; or (b) order the disability service provider to prepare a new behaviour support plan in accordance with the order; or (c) direct that the regulated restrictive practice be removed from the behaviour support plan; or (d) direct the Senior Practitioner to approve the use of the regulated restrictive practice on the person.
This section applies if— (a) the person to whom this Part applies— (i) does not have a behaviour support plan approved by an Authorised Program Officer which provides for the use of regulated restrictive practices; or (ii) has a behaviour support plan which provides for the use of regulated restrictive practices and that inclusion is approved by the Authorised Program Officer but not yet approved by the Senior Practitioner, if the case so requires; and (b) an approved disability service provider is of the opinion that there is an emergency because— (i) there is an imminent risk of a person to whom this Part applies causing serious physical harm to themselves or any other person; and (ii) it is necessary to use regulated restrictive practices to prevent that risk.
If this section applies, the approved disability service provider may use regulated restrictive practices on the person to whom this Part applies if— (a) the use and form of regulated restrictive practices is the option which is the least restrictive of the person as is possible in the circumstances; (b) the use of regulated restrictive practices is authorised by the person in charge of the disability service; (c) the Authorised Program Officer is notified without delay of the use of regulated restrictive practices.
The Authorised Program Officer must within 7 days after the end of each month prepare and send to the Senior Practitioner a report in respect of the use of regulated restrictive practices in an emergency to which this section applies in accordance with subsection (4).
A report under subsection (3) must specify for each month— (a) the form of the regulated restrictive practice used and, if seclusion was used, the period of time during which it was used; (b) the reasons why the regulated restrictive practice was used; (c) the effect on the person's behaviour; (d) the name of the person who approved the use of the regulated restrictive practice; (e) the name of the person who applied the regulated restrictive practice or, if seclusion was used, kept the person in seclusion.
The Senior Practitioner may give written directions in relation to one or more of the matters set out in subsection (2) to— (a) disability service providers; or (b) a specified disability service provider; or (c) disability service providers belonging to a specified class of disability service providers.
For the purposes of subsection (1), the matters are the following— (a) prohibiting the use of a specified restrictive practice; (b) prohibiting the use of a specified class of restrictive practice; (c) regulating the use of a specified restrictive practice; (d) regulating the use of a specified class of restrictive practice; (e) prohibiting or regulating the use of a specified restrictive practice on a person belonging to a specified class of persons with a disability; (f) prohibiting or regulating the use of a specified class of restrictive practices on a person belonging to a specified class of persons with a disability; (g) requiring approval from the Senior Practitioner for the use of a specified restrictive practice; (h) requiring approval from the Senior Practitioner for the use of a specified class of restrictive practice; (i) requiring approval from the Senior Practitioner for the use of a specified class of restrictive practice on a person belonging to a specified class of persons with a disability; (j) guidelines and standards in relation to the use of restrictive practices.
The Senior Practitioner must— (a) monitor whether the use of the regulated restrictive practice is in accordance with this Part; and (b) subject to any guidelines issued under subsection (3), advise the Authorised Program Officer authorising the regulated restrictive practice as to the intervals, not exceeding 12 months, within which the Authorised Program Officer is to provide a report on the implementation of a person's behaviour support plan in accordance with subsection (2) to the Senior Practitioner.
A report required under subsection (1) must— (a) be provided within 7 days after the end of the interval advised under subsection (1); (b) contain the information required in a report under section 147; (c) include a record of all instances in which regulated restrictive practices have been applied during the period for which the report is prepared; (d) specify any details required by the Senior Practitioner in respect of each instance included under paragraph (b); (e) have attached a copy of the person's current behaviour support plan if the use of regulated restrictive practices is being continued.
For the purposes of this section, the Senior Practitioner may make and issue guidelines relating to the preparation of reports including enabling the preparation of a consolidated report by an Authorised Program Officer where more than one approved disability service providers are providing disability services to a person to whom this Part applies involving the use of regulated restrictive practices.
Except as provided in subsection (2), a disability service provider who applies a regulated restrictive practice on a person to whom this Part applies is guilty of an offence against this Act. Penalty: 240 penalty units.
A disability service provider is not guilty of an offence under subsection (1) if the disability service provider applies a regulated restrictive practice on a person to whom this Part applies in accordance with— (a) section 133(3); or (b) section 139A; or (c) sections 140, 145 and 145A; or (d) section 147.
In this section— other restrictive practices means restrictive practices other than regulated restrictive practices.
The Senior Practitioner may in respect of other restrictive practices used by disability service providers on persons to whom this Part applies— (a) require a disability service provider to provide a report to the Senior Practitioner on the use of other restrictive practices in disability services provided by the disability service provider; (b) require a disability service provider to develop a behaviour support plan for a person— (i) to whom this Part applies; and (ii) in respect of whom the disability service provider is using other restrictive practices; (c) develop guidelines and standards in relation to the prohibition or use of other restrictive practices; The guidelines and standards may include clinical guidelines and standards. (d) audit and evaluate the use of other restrictive practices; (e) give written directions to disability service providers— (i) prohibiting the use of a specified other restrictive practice; (ii) regulating the use of a specified other restrictive practice; (f) undertake research and provide advice to disability service providers in relation to the use of other restrictive practices. Section 201H is a corresponding provision in relation to persons for whom treatment plans are in force or are required to be prepared under Part 8.
A disability service provider must not detain a person with an intellectual disability otherwise than in accordance with this Part. Penalty: 240 penalty units.
The Governor in Council may, by proclamation published in the Government Gazette, proclaim— (a) a premises (including part of any building or place) used by the Secretary to provide residential services; or (b) a program provided on a premises (including part of any building or place) used by the Secretary to provide residential services— to be a residential treatment facility.
A proclamation under subsection (1) may classify the residential treatment facility as— (a) a short-term residential treatment facility; or (b) a long-term residential treatment facility.
The purpose of a residential treatment facility is to provide compulsory treatment to persons with an intellectual disability admitted to the residential treatment facility in accordance with this Division.
Subject to subsection (5), for the purposes of this Division, a person with an intellectual disability can only be admitted to a short-term residential treatment facility for a period not exceeding
If a new order of the type specified in section 152(2) applies to a person with an intellectual disability, subsection (4) does not prevent the person with an intellectual disability being re-admitted to a short-term residential treatment facility.
The facility operated by the Secretary at the commencement of this section and known as the Intensive Residential Treatment Program of the Statewide Forensic Service is deemed to have been proclaimed under this section to be a residential treatment facility and classified as a short-term residential treatment facility.
A residential treatment facility can only be operated by the Secretary through the Department.
The Secretary must appoint an Authorised Program Officer in respect of each residential treatment facility.
A person with a disability may only be admitted to a residential treatment facility if the Secretary is satisfied that— (a) the person has an intellectual disability; and (b) the person presents a serious risk of violence to another person; and (c) all less restrictive options have been tried or considered and are not suitable; and (d) the residential treatment facility can provide services for the treatment of the person with a disability and that treatment is suitable for that person; and (e) the Senior Practitioner has been notified of the proposed admission; and (f) an order specified under subsection (2) applies to the person enabling compulsory treatment to be provided.
For the purposes of subsection (1)(f), the following orders are specified— (a) a residential treatment order made under the (b) a parole order made under the Corrections Act 1986; (c) a custodial supervision order made under section 26 or 38ZH of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; (d) an order transferring the person from a prison under section 166; (e) an extended supervision order made under the Serious Sex Offenders Monitoring Act 2005; (f) a supervision order or interim supervision order within the meaning of the Serious Offenders Act 2018.
An order specified in subsection (2)(b), (2)(e) or (2)(f) cannot provide for the admission of the person in respect of whom it is made to a residential treatment facility unless the Secretary has provided a statement to the relevant person or body specifying that— (a) treatment is available in the residential treatment facility; and (b) the person satisfies the criteria specified in subsections (1)(a) to (1)(e); and (c) admission to the residential treatment facility is appropriate in the circumstances.
In subsection (3), relevant person or body means— (a) in the case of an order specified in subsection (2)(b)—the Adult Parole Board; and (ab) in the case of an order specified in subsection (2)(e), the Post Sentence Authority; and (b) in the case of an order specified in subsection (2)(f)—the Secretary to the Department of Justice and Community Safety.
Within 28 days after a person with a disability is admitted to a residential treatment facility under an order specified in section 152(2)(a), 152(2)(b), 152(2)(d), 152(2)(e) or 152(2)(f), the Authorised Program Officer must prepare a treatment plan.
A treatment plan must include provisions which— (a) specify the treatment that will be provided to the resident in the residential treatment facility during the period that the order under which the person is detained remains in force; (b) state the benefit to the person that the resident is expected to receive from the treatment; (c) specify any restrictive practices that are to be used;
(d) specify the process and criteria applying in respect of the resident obtaining leave of absence from the residential treatment facility; (e) set out a proposed process for the transition from being a resident in a residential treatment facility to living in the community. (2A) When preparing a treatment plan under subsection (1), the Authorised Program Officer must ensure that the treatment plan is consistent with the order under which the person with a disability is admitted to the residential treatment facility.
Within 2 days of the treatment plan being prepared, the Authorised Program Officer must— (a) give a copy of the treatment plan to the person with a disability; and (ab) explain to the person with a disability that the person can seek a review of the treatment plan by VCAT under section 155 at any time if the person wants to do so; and (b) lodge a copy of the treatment plan with the Senior Practitioner for his or her approval. (3A) On receiving a treatment plan under subsection (3)(b), the Senior Practitioner— (a) must consider the acceptability of the treatment plan, having regard to— (i) the provisions required to be included in the treatment plan by subsection (2); and (ii) any law, policy or practice that the Senior Practitioner considers is relevant; and (b) may— (i) if he or she is satisfied that the treatment plan is acceptable, approve the treatment plan; or (ii) direct the Authorised Program Officer to change the treatment plan; or (iii) apply to VCAT for a review of the plan under section 155.
An Authorised Program Officer must provide a report on the implementation of a treatment plan to the Senior Practitioner at the intervals, not exceeding 6 months, specified by the Senior Practitioner.
Subject to subsection (6), a material change can not be made to a treatment plan unless the change is approved by the Senior Practitioner.
Unless subsection (7) applies, if a material change to a treatment plan relates to an increase in the level of supervision or restriction— (a) the Senior Practitioner cannot approve the change; and (b) the Authorised Program Officer must apply to VCAT for a variation of the treatment plan under section 155.
Despite subsection (6), if the Senior Practitioner considers that an increase in the level of supervision or restriction of a person with a disability is necessary because of an emergency, the Senior Practitioner— (a) may approve a material change to the treatment plan of the person with a disability relating to the increase in the level of supervision or restriction; and (b) must immediately apply to VCAT for a variation of the treatment plan under section 155.
The Senior Practitioner must, as soon as practicable before the change has effect, notify in writing the person who is subject to the treatment plan of the change to the treatment plan approved by the Senior Practitioner.
While an order specified in section 152(2)(a), 152(2)(b), 152(2)(e) or 152(2)(f) is in force, the Authorised Program Officer must— (a) within 6 months of the person subject to the treatment plan being admitted to the residential treatment facility; and (b) at intervals of not more than 12 months since the last review of the treatment plan by VCAT— apply to VCAT for a review of the treatment plan.
In conducting a review of a treatment plan, VCAT must determine whether the treatment plan is appropriate having regard to the criteria specified in section 153(2).
After reviewing a treatment plan, VCAT may— (a) subject to subsection (4), confirm the treatment plan; or (b) subject to subsection (4), vary the treatment plan as specified in its determination; or (c) require the Authorised Program Officer to prepare a new treatment plan.
VCAT must not confirm or vary a treatment plan unless VCAT is satisfied that the residential treatment facility can implement the treatment plan.
VCAT can only vary a treatment plan if the variation is consistent with the order specified in section 152(2)(a), 152(2)(b), 152(2)(e) or 152(2)(f).
After reviewing a treatment plan, VCAT must set a date not later than 12 months for the next review.
The Authorised Program Officer, the Senior Practitioner or the resident may at any time apply to VCAT for a review of a treatment plan.
In conducting a review of a treatment plan, VCAT must determine whether the treatment plan is appropriate having regard to the criteria specified in section 153(2).
After reviewing a treatment plan, VCAT may— (a) subject to subsection (4), confirm the treatment plan; or (b) subject to subsection (4), vary the treatment plan as specified in its determination; or (c) require the Authorised Program Officer to prepare a new treatment plan.
VCAT must not confirm or vary a treatment plan unless VCAT is satisfied that the residential treatment facility can implement the treatment plan.
VCAT can only vary a treatment plan if the variation is consistent with the order under section 152(2)(a), 152(2)(b), 152(2)(e) or 152(2)(f).
After reviewing a treatment plan, VCAT must set a date not later than 12 months for the next review.
Subject to this section, the Authorised Program Officer may allow a resident detained in a residential treatment facility under an order specified in section 152(2)(a), 152(2)(b), 152(2)(d), 152(2)(e) or 152(2)(f) to be absent from the residential treatment facility— (a) for the period; and (b) subject to any conditions— that the Authorised Program Officer considers appropriate.
Leave of absence under this section must be granted— (a) in accordance with the process and criteria specified in the resident's treatment plan; and (b) subject to any directions given by VCAT or the Senior Practitioner.
The Authorised Program Officer must not allow a resident leave of absence unless the Authorised Program Officer is satisfied on reasonable grounds that the safety of members of the public will not be seriously endangered as a result of the resident being allowed leave of absence.
The Authorised Program Officer may— (a) from time to time extend the period of leave of absence; or (b) revoke the leave of absence and require the resident to return to the residential treatment facility.
The Authorised Program Officer of a residential treatment facility must provide a report for the period of 6 months ending on 30 June and
(a) the number of leaves of absence allowed; (b) in any case where leave of absence was considered by VCAT, details of the hearing and the decision.
A resident detained in a residential treatment facility under an order specified in section 152(2)(a), 152(2)(b), 152(2)(d), 152(2)(e) or 152(2)(f) may apply to the Authorised Program Officer for special leave of absence specifying the special circumstances for which the special leave is required. Special leave of absence may be applied for in relation to unplanned, one-off or emergency situations in special circumstances such as attending a medical appointment or a funeral in the community.
The Authorised Program Officer must grant an application for special leave of absence if the Authorised Program Officer is satisfied that— (a) there are special circumstances; and (b) the safety of members of the public will not be seriously endangered.
If the Authorised Program Officer refuses to grant special leave of absence to a resident detained in a residential treatment facility, the resident may apply to VCAT for a review of the decision.
On an application under subsection (3), VCAT may order that— (a) special leave of absence should be allowed; or (b) special leave of absence should not be allowed.
Special leave of absence— (a) must not exceed 24 hours except in the case of special leave of absence for medical treatment; and (b) may be subject to any conditions as the Authorised Program Officer or VCAT may specify.
The Authorised Program Officer of a residential treatment facility must provide a report for the period of 6 months ending on 30 June and
(a) the number of special leaves of absence granted; (b) the special circumstances for which they were granted.
Leave of absence or special leave of absence granted to a resident detained in a residential treatment facility may be suspended wholly or partly at any time by the Secretary or the Authorised Program Officer if the Secretary or the Authorised Program Officer is satisfied on reasonable grounds that the safety of the person on leave or members of the public will be seriously endangered if leave or part of the leave is not suspended.
If leave of absence or special leave of absence is suspended, the Secretary or the Authorised Program Officer must as soon as is practicable confirm the suspension in writing to the person in respect of whom the leave of absence or special leave of absence is suspended.
If the Secretary or the Authorised Program Officer is satisfied that the reason for the suspension no longer exists, the Secretary or the Authorised Program Officer must lift the suspension immediately.
A person whose leave of absence or special leave of absence is wholly suspended under this section is deemed not to have leave of absence or special leave of absence during the period of suspension.
A person whose leave of absence or special leave of absence is partly suspended under this section is deemed not to have the suspended part of the leave of absence or special leave of absence during the period of suspension.
A resident detained in a residential treatment facility or absent from a residential treatment facility on leave under this or any other Act is subject to such security conditions as the Authorised Program Officer considers necessary.
A resident detained in a residential treatment facility may be transported to and from any places as may be necessary for the administration of this or any other Act in accordance with those security conditions.
A resident detained in a residential treatment facility is in the custody of the person in charge of the residential treatment facility until the order under which the resident is detained ceases or is terminated.
A resident detained in a residential treatment facility who is absent from the residential treatment facility without leave of absence or special leave of absence under this or any other Act may be apprehended at any time by— (a) a police officer; or (b) the person in charge of the residential treatment facility or any person employed under the Public Administration Act 2004 and authorised by the person in charge of the residential treatment facility— for the purpose of being returned to the residential treatment facility.
The Secretary at the request of the Senior Practitioner or the Authorised Program Officer may by order direct the transfer of a resident detained in a residential treatment facility to another residential treatment facility if the Secretary is satisfied that the transfer will enable that person's treatment plan to be more effectively implemented.
If a resident detained in a residential treatment facility is transferred to another residential treatment facility any documents relevant to the detention and care of the resident must be forwarded at the same time to that residential treatment facility.
In this section, extended leave means leave for a RTO resident to be absent from the residential treatment facility— (a) for the period, not exceeding 12 months; and (b) subject to the conditions (if any)— specified by the court which made the residential treatment order.
The purpose of extended leave is to enable the RTO resident to be re-integrated within the community while still subject to conditions specified by the court that made the residential treatment order.
An application for extended leave for a RTO resident may be made to the court that made the residential treatment order to which they are subject— (a) by the RTO resident; or (b) by the Secretary.
If an application is made to the court for extended leave, a leave plan must be prepared and filed with the court by the Secretary.
The court may grant an application under subsection (3) if the court is satisfied on reasonable grounds that the safety of the RTO resident or members of the public will not be seriously endangered as a result of the RTO resident being allowed extended leave.
An application for extended leave can be made and granted more than once.
A person may appeal against a refusal to grant the person extended leave under section 162— (a) if the original court making the decision was the Magistrates' Court, to the County Court; or (ab) if the original court making the decision was the Magistrates' Court constituted by the Chief Magistrate who is a dual commission holder, the Trial Division of the Supreme Court; or (b) if the original court making the decision was the County Court or the Supreme Court, to the Court of Appeal with leave of the Court of Appeal.
The Secretary may appeal to the Court of Appeal with leave of the Court of Appeal against a grant of extended leave if he or she considers that— (a) extended leave should not have been granted; and (b) an appeal should be brought in the public interest.
The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal with leave of the Court of Appeal against a grant of extended leave if he or she— (a) was a party to the proceeding in which extended leave was granted; and (b) considers that extended leave should not have been granted; and (c) considers that an appeal should be brought in the public interest.
On an appeal against a refusal to grant extended leave, the Court of Appeal may— (a) confirm the refusal to grant extended leave; or (b) grant extended leave in accordance with section 162; or (c) remit the matter, with or without directions, to the court that refused to grant extended leave.
On an appeal against a grant of extended leave, the Court of Appeal may— (a) confirm the grant of extended leave; or (b) quash the grant and order that extended leave be refused; or (c) quash the grant and remit the matter, with or without directions, to the court that made the grant.
If the Court of Appeal remits a matter to a court under subsection (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.
Extended leave for a RTO resident granted under section 162 may be suspended at any time by the Secretary if the Secretary is satisfied on reasonable grounds that the safety of the person on leave or members of the public will be seriously endangered if leave is not suspended.
If extended leave is suspended, the Secretary must— (a) as soon as is practicable confirm the suspension in writing to the person formerly on leave; and (b) subject to subsection (5), within 48 hours after the suspension— (i) make an application to the court that granted the leave for revocation of the leave; or (ii) lift the suspension.
The court must hear an application referred to in subsection (2)(b)(i) as soon as possible.
On an application under subsection (2)(b)(i) the court may— (a) if satisfied on reasonable grounds that the safety of the RTO resident or members of the public will be seriously endangered if the suspension is not confirmed or leave is not revoked, revoke the leave; or (b) if not satisfied, lift the suspension.
If the Secretary is satisfied that the reason for the suspension no longer exists, the Secretary must lift the suspension immediately.
A person whose leave is suspended under this section is deemed not to have leave of absence during the period of suspension.
A person may appeal to the Court of Appeal with leave of the Court of Appeal against a revocation of the extended leave granted to the person under section 162.
The Secretary may appeal to the Court of Appeal with leave of the Court of Appeal against a refusal to revoke extended leave granted under section 162 if the Secretary considers that— (a) the extended leave should have been revoked; and (b) an appeal should be brought in the public interest.
The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal with leave of the Court of Appeal against a refusal to revoke extended leave granted under section 162 if he or she— (a) was a party to the proceeding for revocation of extended leave; and (b) considers that the extended leave should have been revoked; and (c) considers that an appeal should be brought in the public interest.
On an appeal against a revocation of extended leave, the Court of Appeal may— (a) confirm the revocation of extended leave; or (b) quash the revocation and restore the extended leave; or (c) remit the matter, with or without directions, to the court that revoked the leave.
On an appeal against a refusal to revoke extended leave, the Court of Appeal may— (a) confirm the refusal to revoke extended leave; or (b) revoke the extended leave in accordance with section 164(4)(a); or (c) revoke the extended leave and remit the matter, with or without directions, to the court that made the grant.
If the Court of Appeal remits a matter to a court under subsection (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.
The Secretary to the Department of Justice and Community Safety may by a security order transfer a person who— (a) is lawfully imprisoned or detained in a prison or other place of confinement; and (b) is a person who has an intellectual disability— to a residential treatment facility as a security resident.
Subsection (1) does not apply to a person who is detained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 in a prison whether on remand or under a supervision order.
The Secretary to the Department of Justice and Community Safety must not make a security order unless— (a) the Secretary to the Department of Justice and Community Safety has received a statement that the person has an intellectual disability and a treatment plan from the Secretary; and (b) the Secretary to the Department of Justice and Community Safety is satisfied as to the matters specified in subsection (7); and (c) the Secretary has agreed to accept the person as a security resident in a residential treatment facility specified in the order.
The Secretary to the Department of Justice and Community Safety may make an interim order to enable the Secretary to assess whether the person specified in the order has an intellectual disability.
A person in respect of whom an interim order is made may be conveyed to and detained in a residential treatment facility for the period not exceeding 28 days specified in the order.
On the application of the Secretary, the Secretary to the Department of Justice and Community Safety may extend the duration of an interim order for a further period not exceeding 28 days.
The Secretary to the Department of Justice and Community Safety must be satisfied that the making of a security order is in the best interests of the person and the community having regard to— (a) whether any physical, mental or emotional risk to which the person has been or may be exposed if detained in a prison is significantly greater than the risk to which a person who does not have an intellectual disability would be exposed; and (b) whether the person would be more appropriately placed in a residential treatment facility instead of a prison; and (c) whether programs are offered by the residential treatment facility which are designed to reduce the likelihood of the person committing further criminal offences; and (d) any other matters the Secretary to the Department of Justice and Community Safety considers relevant.
If a person who is on remand is transferred to a residential treatment facility under this section, the Secretary to the Department of Justice and Community Safety must notify the Director of Public Prosecutions of the transfer.
If the Secretary issues a statement that a person has an intellectual disability for the purposes of section 166, the Secretary must prepare a treatment plan in respect of that person. (1A) A treatment plan must include provisions which— (a) specify the treatment that will be provided to the person with an intellectual disability in the residential treatment facility during the period that the security order remains in force; (b) state the benefit to the person that the person with an intellectual disability is expected to receive from the treatment; (c) specify any restrictive practices that are to be used;
(d) specify the process and criteria applying in respect of the person with an intellectual disability obtaining leave of absence from the residential treatment facility; (e) set out a proposed process for the transition from being a resident in a residential treatment facility to living in the community.
Within 2 days of the treatment plan being prepared, the Authorised Program Officer must— (a) give a copy of the treatment plan to the person with an intellectual disability; and (ab) explain to the person with an intellectual disability that the person can seek a review of the treatment plan by VCAT under section 169 at any time if the person wants to do so; and (b) lodge a copy of the treatment plan with the Senior Practitioner for his or her approval. (2A) On receiving a treatment plan under subsection (2)(b), the Senior Practitioner— (a) must consider the acceptability of the treatment plan, having regard to— (i) the provisions required to be included in a treatment plan by subsection (1A); and (ii) any law, policy or practice that the Senior Practitioner considers is relevant; and (b) may— (i) if he or she is satisfied that the treatment plan is acceptable, approve the treatment plan; or (ii) direct the Authorised Program Officer to change the treatment plan; or (iii) apply to VCAT for a review of the plan under section 169.
An Authorised Program Officer must provide a report on the implementation of a treatment plan to the Senior Practitioner at the intervals, not exceeding 6 months, specified by the Senior Practitioner.
While a security order is in force, the Authorised Program Officer must at intervals of not more than 12 months apply to VCAT for a review of the treatment plan and the security order.
In conducting a review of the treatment plan and security order, VCAT must determine whether— (a) the treatment plan is appropriate having regard to the criteria specified in section 167(1A); and (b) the security order is appropriate having regard to the criteria specified in section 166(7).
After conducting a review under this section, VCAT may— (a) subject to subsection (4), confirm the treatment plan; or (b) subject to subsection (4), vary the treatment plan as specified in its determination; or (c) require the Authorised Program Officer to prepare a new treatment plan; or (d) recommend that the security order be terminated in accordance with section 175.
VCAT must not confirm or vary a treatment plan unless VCAT is satisfied that the residential treatment facility can implement the treatment plan.
VCAT can only vary a treatment plan if the variation is consistent with the security order.
After reviewing a treatment plan, VCAT must set a date within the next 12 months for the next review.
The Authorised Program Officer, the Senior Practitioner or the security resident may at any time apply to VCAT for a review of a treatment plan.
In conducting a review of a treatment plan, VCAT must determine whether the treatment plan is appropriate having regard to the criteria specified in section 167(1A).
After reviewing a treatment plan, VCAT may— (a) subject to subsection (4), confirm the treatment plan; or (b) subject to subsection (4), vary the treatment plan as specified in its determination; or (c) require the Authorised Program Officer to prepare a new treatment plan.
VCAT must not confirm or vary a treatment plan unless VCAT is satisfied that the residential treatment facility can implement the treatment plan. * * * * * * * * * *
A security order— (a) may be terminated by the Secretary at any time on the recommendation of VCAT; or (b) in the case of a person serving a sentence of imprisonment, terminates upon the expiry of the sentence.
If a security order is terminated the following provisions apply— (a) if the security resident has not completed serving a sentence of imprisonment, the person is to be transferred to a prison; (b) if the security resident has completed a sentence of imprisonment, the person is to be released.
The Secretary to the Department of Justice and Community Safety must notify the Secretary when the sentence of imprisonment of a security resident is to expire.
If a security resident dies during detention, the person in charge of the residential treatment facility must advise the Secretary to the Department of Justice and Community Safety as to the circumstances in which the death occurred.
A security resident detained in a residential treatment facility under section 166 may at any time apply to VCAT for VCAT to make a recommendation to the Secretary that the security resident be transferred to a prison.
If VCAT after receiving a report from the Secretary to the Department of Justice and Community Safety makes a recommendation for the transfer of a security resident to a prison, the Secretary may terminate the security order.
If the Secretary terminates the security order under subsection (2), the person is to be discharged as a security resident upon being placed in the legal custody of the Secretary to the Department of Justice and Community Safety under the Corrections Act 1986. * * * * *
If a security resident is transferred to another residential treatment facility under section 161, the Secretary must notify the Secretary to the Department of Justice and Community Safety that the security resident has been transferred.
The Secretary to the Department of Justice and Community Safety may, by order, transfer a person who— (a) is detained in a prison whether on remand or under a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997; and (b) is a person who has an intellectual disability— to a residential treatment facility as a forensic resident.
The Secretary to the Department of Justice and Community Safety must not transfer a person under subsection (1) unless— (a) the Secretary to the Department of Justice and Community Safety has received a statement that the person has an intellectual disability and a treatment plan from the Secretary; and (b) the Secretary to the Department of Justice and Community Safety is satisfied as to the matters specified in subsection (7); and (c) the Secretary has agreed to accept the person as a forensic resident in the residential treatment facility specified in the transfer order.
The Secretary to the Department of Justice and Community Safety may make an interim order to enable the Secretary to assess whether the person specified in the order has an intellectual disability.
A person in respect of whom an interim order is made may be conveyed to and detained in a residential treatment facility for the period, not exceeding 28 days, specified in the interim order.
On the application of the Secretary, the Secretary to the Department of Justice and Community Safety may extend the duration of an interim order for a further period not exceeding 28 days.
If the Secretary issues a statement that a person has an intellectual disability under this section, the Secretary must prepare a treatment plan in respect of that person.
The Secretary to the Department of Justice and Community Safety must be satisfied that the making of a transfer order is in the best interests of the person or the community having regard to— (a) whether any physical, mental or emotional risk to which the person has been or may be exposed if detained in a prison is significantly greater than the risk to which a person who does not have an intellectual disability would be exposed; and (b) whether the person would be more appropriately placed in a residential treatment facility instead of a prison; and (c) any other matters the Secretary to the Department of Justice and Community Safety considers relevant.
If a person who is on remand is transferred to a residential treatment facility under this section, the Secretary to the Department of Justice and Community Safety must notify the Director of Public Prosecutions of the transfer.
A forensic resident is to be provided with services under this Act in a residential treatment facility.
A forensic resident who is subject to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 may apply for and be granted leave of absence in accordance with Part 7 of that Act.
The purpose of this Division is to provide for the making of a civil order, a supervised treatment order, to enable the detention by a disability service provider or a registered NDIS provider of a person with an intellectual disability who poses a significant risk of serious harm to others.
A person or body that in relation to a specific person with a disability is both a disability service provider and a registered NDIS provider is not required to comply as a disability service provider with this Division in relation to that person if the person or body complies with this Division in its capacity as that person's registered NDIS provider.
A disability service provider is not required to comply with this Division in relation to a specific person with a disability if a registered NDIS provider (not being the same person or body as the disability service provider) is required to comply with this Division in relation to that person in the person's capacity as an NDIS participant. A disability service provider intending to use restrictive practices on a person who is subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider must comply with section 201B(2).
A disability service provider must not use supervised treatment unless there is in force an approval under section 186. Penalty: 240 penalty units.
A disability service provider who proposes to use supervised treatment in the provision of a disability service must apply to the Secretary for approval.
An application for approval must include— (a) the prescribed details; and (b) a request for approval of the title of any position and the name of the holder of the position to be appointed as an Authorised Program Officer for the disability service provider. (2A) An application for approval may request the approval of more than one person to be appointed as an Authorised Program Officer for the disability service provider.
The Secretary may grant an application for approval subject to any conditions that the Secretary considers appropriate.
In the case of a disability service in respect of which the disability service provider is the Secretary, the Secretary— (a) is to be taken to be approved to use supervised treatment; and (b) must ensure that an Authorised Program Officer is appointed for the disability service; and (c) must approve the title of any position and the name of the holder of the position to be appointed as an Authorised Program Officer.
The Secretary may approve more than one person to be appointed as an Authorised Program Officer for the disability service provider.
The Senior Practitioner may issue directions to disability service providers in relation to— (a) the minimum qualifications required to be held by persons who are proposed Authorised Program Officers; and (b) training to be completed by Authorised Program Officers; and (c) any other matter in relation to Authorised Program Officers.
A direction issued by the Senior Practitioner under this section must be published on the Department's internet site.
The Secretary may revoke the approval of a disability service provider to use supervised treatment if the Secretary considers it appropriate to do so.
For the purposes of subsection (1), the Secretary may have regard to the following— (a) the registration of the disability service provider has been revoked; (b) the disability service provider has failed to comply with requirements under this Act; (c) any other circumstances that the Secretary considers relevant.
The Secretary must not refuse an application under section 186 or revoke the approval of a disability service provider to use supervised treatment under section 187(1) unless the Secretary has given a notice in writing to the disability service provider in accordance with subsection (2) and has considered any submission made by the disability service provider.
The notice must specify— (a) the proposed decision and the reasons for the proposed decision; (b) that the disability service provider may make a submission in writing within 14 days of the notice being given.
A disability service provider may apply to VCAT for a review of a decision by the Secretary— (a) to refuse an application under section 186; or (b) to revoke the approval of a disability service provider to use supervised treatment under section 187(1).
An application for review must be made within 28 days after the later of— (a) the day on which the decision is made; or (b) if, under the Victorian Civil and Administrative Tribunal Act 1998, the disability service provider requests a statement of reasons for the decision, the day on which the statement of reasons is given to the disability service provider or the disability service provider is informed under section 46(5) of that Act that a statement of reasons will not be given.
An Authorised Program Officer must ensure that any supervised treatment used in the provision of a disability service for which the Authorised Program Officer is responsible is administered in accordance with this Division.
A disability service provider must advise the Senior Practitioner of the name and qualifications of any person appointed as an Authorised Program Officer in the manner and within the period determined by the Senior Practitioner. Penalty: 10 penalty units.
The Senior Practitioner must keep a register of the name and qualifications of each Authorised Program Officer. An Authorised Program Officer must ensure that any supervised treatment used in the provision of services under the NDIS for which the Authorised Program Officer is responsible is administered in accordance with this Division.
An Authorised Program Officer appointed under this Part by a disability service provider may apply to VCAT for a supervised treatment order to be made in respect of a person— (a) who has an intellectual disability; (b) who is receiving residential services; (c) in respect of whom the disability service provider has prepared a treatment plan approved by the Senior Practitioner; (d) who meets the criteria specified in subsection (6). (1A) An Authorised Program Officer appointed under Part 6A by a registered NDIS provider may apply to VCAT for a supervised treatment order to be made in respect of a person— (a) who is an NDIS participant; and (b) who has an intellectual disability; and (c) who is an SDA resident living in an SDA enrolled dwelling provided under an SDA residency agreement; and (d) in respect of whom a treatment plan and an attached NDIS behaviour support plan have been approved by the Senior Practitioner; and (e) who meets the criteria specified in subsection (6).
The Senior Practitioner may direct an Authorised Program Officer (appointed by either a disability service provider or an NDIS provider) to make an application under subsection (1) or (1A) in respect of a person if the Senior Practitioner considers that the person— (a) has an intellectual disability; (b) is receiving residential services or, in the case of an NDIS participant, is an SDA resident living in an SDA enrolled dwelling provided under an SDA residency agreement; (c) is being detained to prevent a significant risk of serious harm to another person without a supervised treatment order applying.
An application under subsection (1) or (1A) must include a certificate given by the Senior Practitioner which specifies that the person in respect of whom the application is made— (a) has an intellectual disability; (b) is receiving residential services or, in the case of an NDIS participant, is an SDA resident living in an SDA enrolled dwelling provided under an SDA residency agreement; (c) has a treatment plan approved by the Senior Practitioner and an NDIS behaviour support plan, as the case requires.
An Authorised Program Officer (appointed by either a disability service provider or a registered NDIS provider) must notify the following persons of any application that he or she makes under subsection (1) or (1A)— (a) the Public Advocate; (b) the person in respect of whom the supervised treatment order is applied for. (4A) The Senior Practitioner must give written notice to the NDIS Commissioner that a certificate referred to in subsection (3) has been given by the Senior Practitioner in relation to an NDIS participant.
On the application of the Public Advocate, VCAT may join the Public Advocate as a party to a proceeding relating to an application under subsection (1) or (1A).
VCAT can only make a supervised treatment order if VCAT is satisfied that— (a) the person has previously exhibited a pattern of violent or dangerous behaviour causing serious harm to another person or exposing another person to a significant risk of serious harm; (b) there is a significant risk of serious harm to another person which cannot be substantially reduced by using less restrictive means; (c) the services to be provided to the person in accordance with the treatment plan and an NDIS behaviour support plan, as the case requires, will be of benefit to the person and substantially reduce the significant risk of serious harm to another person; (d) the person is unable or unwilling to consent to voluntarily complying with a treatment plan and an NDIS behaviour support plan, as the case requires, to substantially reduce the significant risk of serious harm to another person; (e) it is necessary to detain the person to ensure compliance with the treatment plan and an NDIS behaviour support plan, as the case requires, and prevent a significant risk of serious harm to another person.
The treatment plan must include provisions which— (a) specify the treatment that will be provided to the person during the period of the supervised treatment order; (b) state the expected benefit to the person of the treatment; (c) if an Authorised Program Officer for a disability service provider applied for the supervised treatment order, specify any restrictive practices that are to be used;
(ca) if an Authorised Program Officer for a registered NDIS provider applied for the supervised treatment order, specify any restrictive practices other than regulated restrictive practices to be used and the NDIS behaviour support plan must be attached;
(d) state the level of supervision which will be required to ensure that the person participates in the treatment; (e) set out a proposed process for transition of the person to lower levels of supervision and, if appropriate, to living in the community without a supervised treatment order being required.
If an application for a supervised treatment order has been made under section 191, VCAT may at the request of the Authorised Program Officer make an interim supervised treatment order having effect until the application for a supervised treatment order is determined.
VCAT can only make an interim supervised treatment order if VCAT is satisfied that it is necessary to detain the person to ensure compliance with the treatment plan and prevent a significant risk of serious harm to another person until the application for a supervised treatment order is determined.
On an application under section 191, VCAT may— (a) if it is satisfied that the matters specified in section 191(1) or (1A) apply in respect of the person who is the subject of the application, make a supervised treatment order; or (b) subject to subsection (2) or (2A), if it is satisfied that the matters specified in section 191(1) or (1A) apply in respect of the person who is the subject of the application but considers that the treatment plan should be varied, make a supervised treatment order subject to the treatment plan being varied as specified by VCAT; or (c) if it is not satisfied that the matters specified in section 191(1) or (1A) apply in respect of the person who is the subject of the application, dismiss the application.
VCAT must not make a supervised treatment order under subsection (1)(b) unless VCAT is satisfied that the disability service provider or registered NDIS provider, as the case requires, can implement the supervised treatment order and the variation of the treatment plan. (2A) On an application under section 191(1A), VCAT must not specify that the treatment plan of an NDIS participant who has an NDIS behaviour support plan be varied— (a) with respect to any regulated restrictive practices; or (b) in such a manner that the NDIS participant's NDIS behaviour support plan would not be able to be implemented.
A supervised treatment order must— (a) state that the Authorised Program Officer is responsible for the implementation of the supervised treatment order; (b) require the person to whom the supervised treatment order applies to reside in— (i) a residential service, if the application for the order was made by an Authorised Program Officer appointed by a disability service provider; or (ii) an SDA enrolled dwelling provided under an SDA residency agreement, if the application for the order was made by an Authorised Program Officer appointed by a registered NDIS provider; (c) refer to the treatment plan which must be attached to the supervised treatment order; (d) specify the period for which the supervised treatment order is to continue in force, being a period not exceeding 1 year.
A supervised treatment order may— (a) specify conditions to which the person is subject; (b) require the person to participate in treatment specified in the treatment plan or in treatment specified in the supervised treatment order; (c) state the intervals at which the supervised treatment order is to be reviewed.
Subsection (3)(d) does not prevent the making of another supervised treatment order before the expiry of the current supervised treatment order.
There is no limit on the number of applications that can be made for a supervised treatment order.
If— (a) the Authorised Program Officer has not made an application under section 191 for a supervised treatment order to be made in respect of a person; and (b) the Public Advocate considers that the person is being detained to prevent a significant risk of serious harm to another person without a supervised treatment order applying— the Public Advocate may apply to VCAT for an order directing the Authorised Program Officer to make an application under section 191 in respect of that person.
If on an application under subsection (1) VCAT considers that the matters referred to in subsection (1)(b) may be satisfied, VCAT may make an order directing that— (a) the Authorised Program Officer make an application under section 191 within 28 days of the date that the order is made; and (b) the Public Advocate is to be a party to the application.
The Senior Practitioner is responsible for supervising the implementation of a supervised treatment order.
An Authorised Program Officer must provide a report on the implementation of a supervised treatment order to the Senior Practitioner at the intervals, not exceeding 6 months, specified by the Senior Practitioner.
Subject to subsection (4) or (5A), a material change cannot be made to a treatment plan unless the change is approved by the Senior Practitioner.
Unless subsection (5) applies, in the case of a person with a disability who is subject to a supervised treatment order obtained by an Authorised Program Officer for a disability service provider, if a material change to a treatment plan relates to an increase in the level of supervision or restriction— (a) the Senior Practitioner must not approve the change; and (b) the Authorised Program Officer must apply to VCAT for a variation of the treatment plan under section 196.
Despite subsection (4), in the case of a person with a disability who is subject to a supervised treatment order obtained by an Authorised Program Officer for a disability service provider, if the Senior Practitioner considers that an increase in the supervision or restriction of the person is necessary because of an emergency, the Senior Practitioner— (a) may approve a material change to the person's treatment plan relating to the increase in the level of supervision or restriction; and (b) must, as soon as practicable, apply to VCAT for a variation of the treatment plan under section 196. (5A) Unless subsection (5B) applies, in the case of an NDIS participant who is subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider, if a material change to a treatment plan or to an NDIS behaviour support plan attached to the treatment plan relates to an increase in the level of supervision or restriction— (a) the Senior Practitioner must not approve the change; and (b) the Authorised Program Officer must apply to VCAT for— (i) a variation of the treatment plan under section 196, if the proposed variation is to the treatment plan and does not relate to a regulated restrictive practice; or (ii) a review of the supervised treatment order under section 196, if, following a review of the NDIS participant's NDIS behaviour support plan, a material change is made to that plan relating to the use of a regulated restrictive practice. (5B) Despite subsection (5A), in the case of an NDIS participant who is subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider, if the Senior Practitioner considers that an increase in the supervision or restriction of the NDIS participant is necessary because of an emergency, the Senior Practitioner— (a) may approve a material change to the NDIS participant's treatment plan and attached NDIS behaviour support plan relating to the increase in the level of supervision or restriction; and (b) must, as soon as practicable, apply to VCAT for— (i) a variation of the treatment plan under section 196, if the proposed variation is to the treatment plan and does not relate to a regulated restrictive practice; or (ii) a review of the supervised treatment order under section 196, if, following a review of the NDIS participant's NDIS behaviour support plan, a material change is made to that plan relating to the use of a regulated restrictive practice.
The Senior Practitioner must, as soon as is practicable before the change has effect, notify in writing the person who is subject to the supervised treatment order of the change to the treatment plan approved by the Senior Practitioner.
The Senior Practitioner, the Authorised Program Officer or the person subject to a supervised treatment order may apply to VCAT— (a) for a review of the supervised treatment order or the treatment plan; (b) to vary the supervised treatment order or the treatment plan as specified in the application unless the supervised treatment order was obtained by an Authorised Program Officer for a registered NDIS provider and the proposed variation relates to any regulated restrictive practices or would result in the NDIS participant's NDIS behaviour support plan being unable to be implemented; (c) to have the supervised treatment order revoked.
The Senior Practitioner or the Authorised Program Officer must notify the Public Advocate that the Senior Practitioner or the Authorised Program Officer has made an application under subsection (1).
If the Public Advocate considers that a supervised treatment order should be reviewed by VCAT, the Public Advocate may request the Senior Practitioner to make an application under subsection (1).
If the Senior Practitioner declines to make an application under subsection (1) requested by the Public Advocate, the Public Advocate may make an application under subsection (1).
On an application under subsection (1)(a) for a review of the supervised treatment order or the treatment plan, VCAT may— (a) if VCAT is satisfied that the matters specified in section 191(1) or (1A), as the case requires, continue to apply— (i) confirm the supervised treatment order or treatment plan; or (ii) confirm the supervised treatment order or treatment plan subject to any variation that VCAT considers appropriate unless the supervised treatment order is for an NDIS participant and was obtained by an Authorised Program Officer for a registered NDIS provider and the proposed variation relates to any regulated restrictive practices or would result in the NDIS participant's NDIS behaviour support plan being unable to be implemented; or (b) if VCAT is not satisfied that the matters specified in section 191(1) or (1A), as the case requires, continue to apply, revoke the supervised treatment order.
On an application under subsection (1)(b) to vary the supervised treatment order or the treatment plan, VCAT may— (a) if VCAT is satisfied that the variation is appropriate— (i) subject to subsection (7), confirm the variation to the supervised treatment order or treatment plan; or (ii) subject to subsection (7), confirm the variation to the supervised treatment order or treatment plan subject to any further variation that VCAT considers appropriate; or (b) if VCAT is not satisfied that the variation is appropriate reject the application.
VCAT must not confirm the variation of a supervised treatment order or treatment plan under subsection (6)(a) unless VCAT is satisfied that— (a) the disability service provider or registered NDIS provider, as the case requires, can implement the variation of the supervised treatment order or the treatment plan; and (b) if the supervised treatment order is for an NDIS participant and was obtained by an Authorised Program Officer for a registered NDIS provider, the proposed variation does not relate to any regulated restrictive practices and would not result in the NDIS participant's NDIS behaviour support plan being unable to be implemented.
On an application under subsection (1)(c) for the supervised treatment order to be revoked, VCAT may— (a) if VCAT is satisfied that any of the matters specified in section 191(1) or (1A), as the case requires, have ceased to apply, revoke the supervised treatment order; or (b) if VCAT is satisfied that the matters specified in section 191(1) or (1A), as the case requires, continue to apply— (i) subject to subsection (9), confirm the supervised treatment order; or (ii) subject to subsection (9), confirm the supervised treatment order subject to any variation that VCAT considers appropriate.
VCAT must not confirm a supervised treatment order under subsection (8)(b) unless VCAT is satisfied that— (a) the disability service provider or registered NDIS provider, as the case requires, can implement the variation of the supervised treatment order or variation; and (b) if the supervised treatment order is for an NDIS participant and was obtained by an Authorised Program Officer for a registered NDIS provider, the order or variation does not relate to any regulated restrictive practices and would not result in the NDIS participant's NDIS behaviour support plan being unable to be implemented.
If a person is subject to a supervised treatment order, the Authorised Program Officer must apply to VCAT for a determination regarding the expiry of the supervised treatment order as soon as practicable within 60 days of the day on which the supervised treatment order will expire.
The Authorised Program Officer must notify the following persons of any application that he or she makes under subsection (1)— (a) the Public Advocate; (b) the person who is subject to the supervised treatment order; (c) the Senior Practitioner.
On an application under subsection (1), VCAT may— (a) if VCAT is satisfied that the matters specified in section 191(1) or (1A), as the case requires, currently apply and will continue to apply after the day on which the supervised treatment order will expire, order the Authorised Program Officer to apply under section 191 for a new supervised treatment order to take effect on the day that the current supervised treatment order will expire; or (b) if VCAT is satisfied that the matters specified in section 191(1) or (1A), as the case requires, currently apply but will not apply after the day on which the supervised treatment order will expire, dismiss the application and allow the supervised treatment order to expire on that day; or (c) if VCAT is not satisfied that the matters specified in section 191(1) or (1A), as the case requires, currently apply, revoke the supervised treatment order. The Senior Practitioner must give written notice to the NDIS Commissioner if one or more of the following occurs in relation to an NDIS participant subject to a supervised treatment order or interim supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider— (a) VCAT makes an interim supervised treatment order or a supervised treatment order; (b) the Senior Practitioner approves a material change made to a treatment plan under section 195(3), (5) or (5B); (c) VCAT confirms a variation to a treatment plan under section 196 that involves a material change of a kind referred to in section 195; (d) the supervised treatment order is varied or revoked under section 196 or expires.
If VCAT has determined an application under this Division, the Senior Practitioner, the Authorised Program Officer or the person subject to the supervised treatment order may apply to VCAT for a rehearing of the application.
An application for a rehearing, or for leave to apply for a rehearing, must be made within
If VCAT gives oral reasons for making an order and a person then requests written reasons under section 117 of the Victorian Civil and Administrative Tribunal Act 1998, the day on which the written reasons are given to the person is deemed to be the day on which VCAT made the determination for the purposes of subsection (2).
Subject to subsection (5), the making of an application for a rehearing does not affect the operation of any supervised treatment order to which the application relates or prevent the taking of action to enforce the supervised treatment order.
VCAT may make an order staying the operation of a supervised treatment order pending the determination of the rehearing of the application.
On an application under section 197, VCAT must rehear the matter and, for that purpose, VCAT has all the functions and powers that VCAT had with respect to the matter at first instance.
In determining a rehearing, VCAT may— (a) affirm the determination of VCAT at first instance; or (b) vary the determination of VCAT at first instance; or (c) set aside the determination of VCAT at first instance and make another determination in substitution for it.
An Authorised Program Officer may apply to the Senior Practitioner for an assessment order to be made in respect of a person to enable a treatment plan to be prepared for that person.
An Authorised Program Officer may only make an application under subsection (1) in respect of a person if the Authorised Program Officer considers that— (a) the person has an intellectual disability; (b) the person is receiving residential services or is an SDA resident living in an SDA enrolled dwelling provided under an SDA residency agreement; (c) it is necessary to detain the person to prevent a significant and imminent risk of serious harm to another person; (d) an assessment needs to be undertaken to enable the urgent development of a treatment plan for the purpose of making an application for a supervised treatment order.
The Senior Practitioner can only make an assessment order if the Senior Practitioner is satisfied that the criteria specified in subsection (2) applies.
An assessment order— (a) may specify conditions to which the person is subject; (b) continues in force for the period not exceeding 28 days specified in the assessment order; (c) can not be extended or renewed. (4A) The Senior Practitioner must within 72 hours of making an assessment order— (a) give the person in respect of whom the order is made a written statement explaining why the Senior Practitioner is satisfied that the criteria in subsection (2) apply; and (b) notify the person in respect of whom the order is made that the person may apply to VCAT for a review of the decision to make the order; and (c) notify the Public Advocate that the assessment order has been made.
On the expiry of an assessment order, the Authorised Program Officer must— (a) make an application to VCAT for a supervised treatment order; or (b) cease the detention of the person who was subject to the assessment order.
Only one application can be made under this section in respect of any person.
A person in respect of whom an assessment order has been made may apply to VCAT for a review of the decision by the Senior Practitioner to make the assessment order.
On an application under subsection (1), VCAT may— (a) confirm the decision to make the assessment order and dismiss the application; or (b) vary the conditions or period of the assessment order; or (c) revoke the assessment order. The Senior Practitioner must give written notice to the NDIS Commissioner if one of the following occurs in relation to an NDIS participant— (a) an assessment order is made under section 199; (b) an assessment order is revoked under section 199A.
If a person who is subject to a supervised treatment order is a represented person in relation to whom a guardianship order under the Guardianship and Administration Act 2019 has effect, the supervised treatment order prevails over the guardianship order to the extent of any inconsistency.
A person who is subject to a supervised treatment order who is absent without approval from the residential service or the SDA enrolled dwelling (if provided under an SDA residency agreement), as the case requires, at which the person is required to reside may be apprehended at any time by— (a) a police officer; or (ab) a person who— (i) is employed by the Supported Independent Living provider providing supported independent living assistance at the SDA enrolled dwelling or is employed by the registered NDIS provider providing the SDA enrolled dwelling; and (ii) is authorised by the person in charge of the SDA enrolled dwelling or the Supported Independent Living provider; or (b) the person in charge of the residential service or the SDA enrolled dwelling or any person employed by the disability service provider providing the residential service and authorised by the person in charge of the residential service— for the purpose of being returned to the residential service or the SDA enrolled dwelling.
For the purposes of subsection (1), a person who is subject to a supervised treatment order is absent without approval from the residential service or the SDA enrolled dwelling, as the case requires, at which the person is required to reside if— (a) the absence is contrary to the conditions specified in the supervised treatment order; or (b) the absence is in breach of the treatment plan; or (c) the absence requires the prior approval of the Authorised Program Officer and no approval has been given.
This Division applies to— (a) persons with a disability for whom a disability service provider has prepared, or is required to prepare a treatment plan under this Part; and (b) NDIS participants who are subject to a supervised treatment order and on whom a disability service provider intends using restrictive practices.
The purpose of this Division is to protect the rights of persons to whom this Division applies by ensuring that restrictive practices are— (a) included in treatment plans for those persons only in accordance with this Division; and (b) used on those persons only if the requirements imposed by this Division are complied with.
A disability service provider is not required to comply with this Division (other than section 201B(2)) in relation to a specific person with a disability if— (a) a registered NDIS provider (not being the same person or body as the disability service provider) is required to comply with Division 7 in relation to that person in the person's capacity as an NDIS participant; and (b) the Secretary has granted approval for the disability service provider to use restrictive practices under section 135, despite anything to the contrary in section 133. See also sections 136, 137 and 138 in relation to an approval granted to a disability service provider to use restrictive practices.
A person or body that in relation to a specific person with a disability is both a disability service provider and a registered NDIS provider is not required to comply as a disability service provider with this Division in relation to that person if the person or body complies with Division 7 in its capacity as that person's registered NDIS provider.
A disability service provider must not use a restrictive practice on a person to whom this Division applies unless— (a) there is a treatment plan in force for that person; and (b) the treatment plan includes the restrictive practice.
Despite anything to the contrary in subsection (1), a disability service provider may use a regulated restrictive practice on an NDIS participant who is subject to a supervised treatment order obtained by a registered NDIS provider if— (a) the registered NDIS provider is required to comply with Division 7 in relation to the NDIS participant; and (b) the Secretary has granted approval for the disability service provider to use the restrictive practices under section 135, despite anything to the contrary in section 133; and (c) when the restrictive practice is used, the matters set out in section 201L (other than paragraph (f)) apply in relation to the NDIS participant. See also sections 136, 137 and 138 in relation to an approval granted to a disability service provider to use restrictive practices.
A disability service provider who uses regulated restrictive practices on a person under subsection
must within 7 days after the end of an interval specified by the Senior Practitioner provide a report to the Senior Practitioner that records— (a) all instances in which the regulated restrictive practices were used during the period for which the report is prepared; and (b) any other details required by the Senior Practitioner.
The Senior Practitioner may issue directions to disability service providers to whom subsection
applies in relation to the use of regulated restrictive practices under that subsection.
An Authorised Program Officer must ensure that any restrictive practice used on a person to whom this Division applies in the provision of a disability service for which the Authorised Program Officer is responsible is administered in accordance with this Division.
A disability service provider must advise the Senior Practitioner of the name and qualifications of any person appointed as an Authorised Program Officer in the manner and within the period determined by the Senior Practitioner. Penalty: 10 penalty units.
The Senior Practitioner must keep a register of the name and qualifications of each Authorised Program Officer. Regulated restrictive practices must not be used by a disability service provider on a person to whom this Division applies unless— (a) the use of regulated restrictive practices is necessary— (i) to prevent the person from causing physical harm to themselves or any other person; or (ii) to prevent the person from destroying property where to do so could involve the risk of harm to themselves or any other person; and (b) the use and form of regulated restrictive practices is the option which is the least restrictive of the person as is possible in the circumstances; and (c) the use and form of the regulated restrictive practice— (i) is included in the person's treatment plan; and (ii) is in accordance with the person's treatment plan; and (iii) is not applied for longer than the shorter of the following periods— (A) the period of time that has been authorised by the Authorised Program Officer; or (B) the period of time during which the use of the regulated restrictive practice is necessary under paragraph (a); and (d) if seclusion is to be used— (i) the person is supplied with bedding and clothing which is appropriate in the circumstances; and (ii) the person has access to adequate heating or cooling as is appropriate in the circumstances; and (iii) the person is provided with food and drink at the appropriate times; and (iv) the person is provided with adequate toilet arrangements; and (e) any other requirements imposed by the Senior Practitioner are complied with. Section 140 is a corresponding provision in relation to other persons with a disability.
This section applies if a person who is preparing a treatment plan under this Part for a person to whom this Division applies— (a) is satisfied that the criteria specified in section 201D(a) and (b) apply; and (b) proposes to use the regulated restrictive practice on the person.
The person who is preparing the treatment plan must include provisions in the treatment plan which— (a) state the circumstances in which the proposed form of the regulated restrictive practice is to be used for treatment; (b) explain how the use of the regulated restrictive practice will be of benefit to the person; (c) demonstrate that the use of the regulated restrictive practice is the option which is the least restrictive of the person as is possible in the circumstances.
The person who is preparing the treatment plan must, in preparing the plan, consult with— (a) the person for whom the treatment plan is prepared; (b) if the person for whom the treatment plan is prepared has a guardian, the guardian; (c) if other disability service providers provide disability services to the person for whom the treatment plan is prepared, a representative of each disability service provider; (ca) if any registered NDIS providers provide services under the NDIS to the person for whom the treatment plan is prepared, a representative of each registered NDIS provider; (d) any other person that the person who is preparing the plan considers integral to the development of the treatment plan.
The Senior Practitioner must— (a) monitor whether the use of the regulated restrictive practices is in accordance with this Division; and (b) subject to any guidelines issued under subsection (3), advise the Authorised Program Officer as to the intervals, not exceeding 12 months, within which the Authorised Program Officer is to provide a report on the use of regulated restrictive practices in accordance with subsection (2) to the Senior Practitioner.
A report required under subsection (1) must— (a) be provided within 7 days after the end of the interval advised under subsection (1); (b) include a record of all instances in which regulated restrictive practices were applied during the period for which the report is prepared; (c) specify any details required by the Senior Practitioner in respect of each use of regulated restrictive practices during the interval for which the report is prepared; (d) have attached a copy of the person's current treatment plan if the use of regulated restrictive practices is being continued.
For the purposes of this section, the Senior Practitioner may make and issue guidelines relating to the preparation of reports including enabling the preparation of a consolidated report by an Authorised Program Officer where more than one disability service provider is providing services to a person to whom this Division applies involving the use of a regulated restrictive practice. The Senior Practitioner may issue directions and guidelines in relation to the use of restrictive practices and the development of treatment plans for persons subject to a supervised treatment order (irrespective of whether they are NDIS participants), including reporting requirements for disability service providers on the implementation of treatment plans. A disability service provider who, except as provided in section 201A(3) and (4), 201B or 201D, applies a regulated restrictive practice to a person to whom this Division applies is guilty of an offence against this Act. Penalty: 240 penalty units. Section 149 provides a corresponding offence in relation to other persons with a disability.
In this section— other restrictive practices means restrictive practices other than regulated restrictive practices.
The Senior Practitioner may, in respect of other restrictive practices used by disability service providers on persons to whom this Division applies— (a) require a disability service provider to provide a report to the Senior Practitioner on the use of other restrictive practices in disability services provided by the disability service provider; (b) develop guidelines and standards in relation to the prohibition or use of other restrictive practices; The guidelines and standards may include clinical guidelines and standards. (c) audit and evaluate the use of other restrictive practices; (d) give written directions to disability service providers— (i) prohibiting the use of a specified other restrictive practice; (ii) regulating the use of a specified other restrictive practice; (e) undertake research and provide advice to disability service providers in relation to the use of other restrictive practices. Section 150 is a corresponding provision in relation to other persons with a disability.
The Senior Practitioner may give written directions for the purposes of this Division in relation to one or more of the matters set out in subsection (2) to one or more of the following— (a) disability service providers; (b) a specified disability service provider; (c) disability service providers belonging to a specified class of disability service providers.
For the purposes of subsection (1) the matters are the following— (a) prohibiting the use of a specified restrictive practice; (b) prohibiting the use of a specified class of restrictive practice; (c) regulating the use of a specified restrictive practice; (d) regulating the use of a specified class of restrictive practice; (e) prohibiting or regulating the use of a specified restrictive practice on a person belonging to a specified class of persons with a disability; (f) prohibiting or regulating the use of a specified class of restrictive practices on a person belonging to a specified class of persons with a disability; (g) requiring approval from the Senior Practitioner for the use of a specified restrictive practice; (h) requiring approval from the Senior Practitioner for the use of a specified class of restrictive practice; (i) requiring approval from the Senior Practitioner for the use of a specified class of restrictive practice on a person belonging to a specified class of persons with a disability; (j) guidelines and standards in relation to the use of restrictive practices.
This Division applies to NDIS participants for whom an NDIS behaviour support plan is in force and who are subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider. A registered NDIS provider intending to use restrictive practices on an NDIS participant who is subject to a supervised treatment order obtained by an Authorised Program Officer for a disability service provider may do so in accordance with Part 6B.
The purpose of this Division is to protect the rights of NDIS participants to whom this Division applies by ensuring that restrictive practices which registered NDIS providers intend to use are— (a) authorised in accordance with this Division; and (b) used only if the requirements imposed by this Division are complied with. A registered NDIS provider must not use a restrictive practice on an NDIS participant unless— (a) there is a treatment plan in force for that NDIS participant; and (b) in the case of the proposed use of restrictive practices other than regulated restrictive practices, the NDIS participant's treatment plan includes the proposed restrictive practice; and (c) in the case of the proposed use and form of regulated restrictive practices, the proposed regulated restrictive practice is included in the NDIS participant's NDIS behaviour support plan attached to the NDIS participant's treatment plan and the proposed use and form is in accordance with section 201L. A registered NDIS provider must not use a regulated restrictive practice on an NDIS participant unless the following apply— (a) the use of the regulated restrictive practice is necessary to prevent the NDIS participant from causing physical harm to the NDIS participant or any other person; (b) the use and form of the regulated restrictive practice is the option which is the least restrictive of the NDIS participant as is possible in the circumstances; (c) the use and form of the regulated restrictive practice— (i) is included in the NDIS participant's NDIS behaviour support plan attached to the NDIS participant's treatment plan; and (ii) is in accordance with the NDIS participant's NDIS behaviour support plan and treatment plan; and (iii) is not applied for longer than the period of time during which the use of the regulated restrictive practice is necessary under paragraph (a); (d) if seclusion is to be used— (i) the NDIS participant is supplied with bedding and clothing which is appropriate in the circumstances; and (ii) the NDIS participant has access to adequate heating or cooling as is appropriate in the circumstances; and (iii) the NDIS participant is provided with food and drink at the appropriate times; and (iv) the NDIS participant is provided with adequate toilet arrangements; (e) any other requirements imposed by the Senior Practitioner are complied with; (f) the NDIS behaviour support plan has been developed in accordance with the NDIS (Restrictive Practices and Behaviour Support) Rules and is able to be implemented in accordance with those Rules and this Act. An Authorised Program Officer must ensure that— (a) any restrictive practice (other than regulated restrictive practices) used on an NDIS participant in the provision of a service under the NDIS for which the registered NDIS provider that appointed the Authorised Program Officer is responsible is used in accordance with this Division, the NDIS Act and any regulations, instruments or rules made under the NDIS Act and the NDIS participant's treatment plan; and (b) any regulated restrictive practice used on an NDIS participant in the provision of a service under the NDIS for which the registered NDIS provider that appointed the Authorised Program Officer is responsible is used in accordance with this Division, the NDIS Act and any regulations, instruments or rules made under the NDIS Act and the NDIS participant's NDIS behaviour support plan. If satisfied that it is appropriate to do so, the Senior Practitioner may lodge evidence with the NDIS Commissioner or the registered NDIS provider that the use of regulated restrictive practices on an NDIS participant is authorised under this Division.
The Senior Practitioner may give written directions for the purposes of this Division in relation to one or more of the matters set out in subsection (2) to one or more of the following— (a) registered NDIS providers; (b) a specified registered NDIS provider; (c) registered NDIS providers belonging to a specified class of registered NDIS providers.
For the purposes of subsection (1) the matters are the following— (a) prohibiting the use of a specified restrictive practice; (b) prohibiting the use of a specified class of restrictive practice; (c) regulating the use of a specified restrictive practice; (d) regulating the use of a specified class of restrictive practice; (e) prohibiting or regulating the use of a specified restrictive practice on a person belonging to a specified class of NDIS participants; (f) prohibiting or regulating the use of a specified class of restrictive practices on a person belonging to a specified class of NDIS participants; (g) requiring approval from the Senior Practitioner for the use of a specified restrictive practice; (h) requiring approval from the Senior Practitioner for the use of a specified class of restrictive practice; (i) requiring approval from the Senior Practitioner for the use of a specified class of restrictive practice on a person belonging to a specified class of NDIS participants; (j) guidelines and standards in relation to the use of restrictive practices.
A person must not, in purported compliance with this Act, give information or make a statement that is false or misleading in a material particular. Penalty: 60 penalty units.
A person must not make a false or misleading entry in a document required by this Act to be kept by— (a) a disability service provider; or (b) a registered NDIS provider. Penalty: 60 penalty units.
It is a defence in proceedings under this section to prove that the person did not know that the information, statement or entry was false or misleading.
A person must not, without lawful authority, destroy or damage any notice or document given or prepared or kept in accordance with this Act. Penalty: 120 penalty units.
The Secretary may, by instrument, delegate to any officer or employee of the Department any power, duty or function of the Secretary under this Act (other than this power of delegation) or under regulations made under this Act.
The Secretary may, by instrument, delegate to any officer or employee of the Department any power, duty or function of the Secretary under any other Act or under regulations made under any other Act that relates to or affects persons with a disability or NDIS participants.
The Secretary may having regard to the objectives and functions of the Secretary under this Act, make available to a disability service provider the services of any person or class of persons employed in the Department under the Public Administration Act 2004.
A person or class of persons whose services are made available under subsection (1) to a disability service provider remains subject to the Public Administration Act 2004 but may be subject to the direction and control of the disability service provider for the purposes of duty in the assigned role to the extent and subject to any conditions determined and agreed to by the Secretary which cannot be less favourable than under the Public Administration Act 2004.
The Secretary may at any time the Secretary thinks fit visit any disability service provider.
The Secretary is entitled when visiting any disability service provider to— (a) inspect any part of the premises; (b) see any person to whom disability services are being provided; (c) make inquiries in relation to any person to whom disability services are being provided; (d) inspect any document or record relating to— (i) the provision of disability services; or (ii) any person to whom disability services are being provided.
The Secretary may by order in writing require the person in charge of a disability service provider to allow a person authorised by the Secretary to see a person to whom disability services are being provided.
The person in charge and every member of the staff or management of a disability service provider must provide the Secretary with any reasonable assistance that the Secretary may require to perform or exercise a power, duty or function under this Act effectively.
A person in charge or member of the staff or management of a disability service provider must— (a) reasonably render assistance when required to do so under subsection (4); (b) give full and true answers to the best of that person's knowledge to any question asked by the Secretary in the performance or exercise of any power, duty or function under this Act. Penalty: 60 penalty units.
The Secretary may, by instrument, appoint as authorised officers any employees or class of employees employed under Part 3 of the Public Administration Act 2004.
The Secretary must not appoint a person as an authorised officer under this section unless the Secretary is satisfied that the person is appropriately qualified or has successfully completed appropriate training.
The Secretary must issue an identity card to each authorised officer.
An identity card must contain a photograph of the authorised officer to whom it is issued.
An authorised officer must produce his or her identity card for inspection— (a) before exercising a power under this Act other than a requirement made by post; and (b) at any time during the exercise of a power under this Act, if asked to do so. Penalty: 10 penalty units.
For the purpose of ascertaining whether this Act and the regulations are being complied with, an authorised officer, with such assistance as he or she reasonably requires, may at any time visit and inspect any part of the premises where disability services are being provided, other than any premises or part of any premises used as a private residence that is not a residential service, and may— (a) see and ask questions of a person to whom disability services are being provided; (b) make enquiries in relation to any person to whom disability services are being provided; (c) inspect, make copies of or take extracts from, any document relating to— (i) the provision of disability services; or (ii) any person to whom disability services are being provided; (d) require a disability service provider or any member of staff of the disability service provider— (i) to answer a question to the best of that person's knowledge, information and belief; (ii) to take reasonable steps to produce documents.
If an authorised officer requires a person referred to in subsection (1)(d) to answer a question to the best of that person's knowledge, information and belief, the authorised officer must advise the person that it is a reasonable excuse for that person to refuse to comply with the request if it would tend to incriminate that person.
A person must not— (a) give information to an authorised officer under this Act that the person believes to be false or misleading in any material particular; or (b) produce a document to an authorised officer under this Act that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information. Penalty: 60 penalty units.
A person must not, without reasonable excuse, hinder or obstruct an authorised officer who is exercising a power under this Act. Penalty: 60 penalty units.
A person is not guilty of an offence under subsection (1) if the authorised officer exercising a power under this Act— (a) failed to produce their identity card in accordance with section 209; or (b) failed to warn the person of the effect of subsection (1).
A person who is not an authorised officer must not, in any way, hold himself or herself out to be an authorised officer. Penalty: 60 penalty units.
It is a defence to an offence against this Act for a natural person to refuse or fail to give information or do any other thing that the person is required to do by or under this Act, if the giving of the information or the doing of that other thing would tend to incriminate the person.
It is a defence to an offence against this Act for a person to refuse or fail to give information or do any other thing that the person is required to do by or under this Act, if the giving of the information or the doing of that other thing would be a breach of legal professional privilege or client legal privilege. * * * * *
If two or more persons are responsible for the same offence against this Act each of those persons is liable to the penalty provided by this Act for that offence and the liability of each of them is independent of the liability of any other person.
If a person who is guilty of an offence is a partnership or an unincorporated body the reference to a person must be construed as a reference to each member of the partnership or of the committee of management of the unincorporated body, as the case may be.
It is a defence to a prosecution or other legal proceeding under this Act if the person charged with the offence proves that— (a) he or she did not know that an offence was being committed or consent to or connive in the commission of the offence; and (b) he or she used due diligence to prevent the commission of an offence.
The Secretary or a police officer may bring proceedings for an offence under this Act.
The Disability Services Commissioner may also bring proceedings for an offence under Division 6C or Division 8 of Part 6.
In proceedings under this Act, no proof is required— (a) of an order or authority to bring proceedings; or (b) of the appointment of the Secretary or an authorised officer.
A copy of an order, direction, authority, decision or notice made or given under this Act by the Minister, the Secretary or the Senior Practitioner and signed and certified by the Minister, the Secretary or the Senior Practitioner to be a true copy and to have been so made or given is evidence of the making or giving of the order, direction, authority, decision or notice.
This Act does not affect the application of any law enabling the recapture of a person for the purpose of being returned to a prison.
The Governor in Council may make regulations for or with respect to— (a) prescribing forms to be used for the purposes of this Act; (b) prescribing fees for the purposes of this Act; (c) prescribing the maximum amount that may be charged as a residential charge in respect of different kinds of residential services; (d) matters to be included in a residential statement; (e) prescribing charges, if any, for the accommodation or care of, or for services, including food and utilities, provided to, a resident in a residential service other than a community residential unit; (f) prescribing the keeping and form of any records, registers or other documents as may be necessary for the administration of this Act; (fa) prescribing persons or classes of person who provide services to persons with a disability for the purposes of the definition of prescribed service provider; (fb) prescribing disability service providers or classes of disability service provider and regulated service providers or classes of regulated service provider as exempt service providers for the purposes of the definition of exempt service provider; (fc) prescribing the functions of a community visitor in respect of SDA enrolled dwellings; (g) any matter or thing authorised or required to be prescribed or necessary to be prescribed for carrying this Act into effect.
Regulations made under this Act— (a) may be of general or of specially limited application; (b) may differ according to differences in time, place or circumstance; (c) may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by any government department, municipal council or public authority or any officer thereof; (d) may confer powers or impose duties in connection with the regulations on any government department, municipal council or public authority; (e) may apply, adopt or incorporate, with or without modification, the provisions of any Act or of any regulations made under any Act as in force at a particular time; (f) may apply, adopt or incorporate with or without modification, any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body as formulated, issued, prescribed or published at the time the regulation is made or at any time before the regulation is made; (g) may impose a penalty not exceeding 10 penalty units for any contravention of the regulations.
A power conferred by this Act to make regulations providing for the imposition of fees or charges may be exercised by providing for all or any of the following matters— (a) specific fees or charges; (b) maximum or minimum fees or charges; (c) maximum and minimum fees or charges; (d) scales of fees or charges according to the value of goods or services provided for the fees or charges; (e) the payment of fees or charges either generally or under specified conditions or in specified circumstances; (f) the reduction, waiver or refund, in whole or in part, of the fees or charges.
If under subsection (3)(f) regulations provide for a reduction, waiver or refund, in whole or in part, of a fee or charge, the reduction, waiver or refund may be expressed to apply either generally or specifically— (a) in respect of certain matters or transactions or classes of matters or transactions; or (b) in respect of certain documents or classes of documents; or (c) when an event happens; or (d) in respect of certain persons or classes of persons; or (e) in respect of any combination of matters, transactions, documents, events or persons— and may be expressed to apply subject to specified conditions or in the discretion of any specified person or body.
A fee or charge that may be imposed by regulation is not limited to an amount that is related to the cost of providing a service.
The Intellectually Disabled Persons' Services Act 1986 is repealed.
The Intellectually Disabled Persons' Services (Trust Money) Act 1992 and the Intellectually Disabled Persons' Services (Amendment)
The Disability Services Act 1991 is repealed.
Except as in this Act expressly or by necessary implication provided all persons, things and circumstances appointed or created by or under the Intellectually Disabled Persons' Services Act 1986 or the Disability Services Act 1991 or existing or continuing under those Acts immediately before the commencement of this section continue under and subject to this Act to have the same status, operation and effect as they respectively would have had if those Acts had not been so repealed.
On and after the commencement of this section, any reference in any Act (other than this Act), regulation, subordinate instrument or other document whatsoever to the Intellectually Disabled Persons' Services Act 1986 or the Disability Services Act 1991 is to be construed as a reference to this Act, unless the contrary intention appears.
Nothing in this section limits or otherwise affects the operation of the Interpretation of Legislation Act 1984. * * * * * * * * * *
The Governor in Council may make regulations containing provisions of a savings or transitional nature consequent on the enactment of this Act.
A provision mentioned in subsection (1) may be retrospective in operation to the commencement of section 222.
Regulations made under this section have effect despite anything to the contrary in any Act other than this Act or in any subordinate instrument.
The Governor in Council, on the recommendation of the Minister, may by order published in the Government Gazette, specify— (a) the land to be vested in fee simple in the Secretary; and (b) the leases for which the Secretary is taken to be the lessee; and (c) the licences for which the Secretary is taken to be the licensee; and (d) the legal and equitable interests in land (whether protected by caveat under the Transfer of Land Act 1958 or not) to be vested in the Secretary— under section 225B.
The Minister, before making a recommendation to the Governor in Council under subsection (1), must be satisfied that— (a) the land to be vested in fee simple in the Secretary is vested in fee simple in the body corporate known as the Secretary to the Department of Human Services; and (b) the leases for which the Secretary is taken to be the lessee are held by the body corporate known as the Secretary to the Department of Human Services as lessee; and (c) the licences for which the Secretary is taken to be the licensee are held by the body corporate known as the Secretary to the Department of Human Services as licensee; and (d) the interests in land to be vested in the Secretary are vested in the body corporate known as the Secretary to the Department of Human Services.
Despite section 246A of the Public Health and Wellbeing Act 2008, on the commencement of section 6 of the Health and Human Services Legislation Amendment Act 2010— (a) all land vested in fee simple in the body corporate known as the Secretary to the Department of Human Services and specified in an order made under section 225A(1)(a) vests in fee simple in the Secretary, whether the land is registered— (i) in the name of "Secretary to the Department of Human Services"; or (ii) in the name of "Secretary to the Department of Health and Community Services"; or (iii) in the name of "Department of Human Services"; or (iv) in the name of "Secretary, the Department of Human Services"; or (v) in the name of "Chief General Manager of the Department of Health"; or (vi) in the name of "Health Commission of Victoria"; or (vii) in a name that is substantially the same as any name referred to in subparagraphs (i) to (vi); and (b) the Secretary is taken to be the lessee under the leases specified in an order made under section 225A(1)(b); and (c) the Secretary is taken to be the licensee under the licences specified in an order made under section 225A(1)(c); and (d) all interests in land specified in an order made under section 225A(1)(d) vest in the Secretary.
All land that vests in fee simple in the Secretary under this section is taken to have been acquired by the Secretary on behalf of the Crown for the purposes of this Act.
All leases referred to in subsection (1) are taken to be held by the Secretary on behalf of the Crown for the purposes of this Act.
All licences referred to in subsection (1) are taken to be held by the Secretary on behalf of the Crown for the purposes of this Act.
All interests in land referred to in subsection (1) are taken to have been acquired by the Secretary on behalf of the Crown for the purposes of this Act.
Nothing effected by this section is to be regarded as placing any person in breach of or as constituting a default under any provision of a lease or licence, including any provision prohibiting, restricting or regulating the assignment of the lease or licence.
For the avoidance of doubt, the Secretary, on behalf of the Crown, is the successor in law to the body corporate known as the Secretary to the Department of Human Services in relation to any lease, licence or other interest given by the body corporate over land referred to in subsection (1). On being requested to do so and on delivery of any relevant instrument or document, the Registrar of Titles must make any recordings in the Register that are necessary because of the operation of section 225B. No duty or other tax is chargeable under any Act in respect of anything done under section 225B or in respect of any act or transaction connected with or necessary to be done by reason of section 225B, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with, the transfer of property to the Secretary.
If land vests in fee simple in the Secretary under section 225B, the land so vested is subject to the encumbrances (if any) to which the land was subject immediately before so vesting.
If leases are taken to be held by the Secretary under section 225B, the leases are subject to the same encumbrances (if any) to which the leases were subject immediately before they were held by the Secretary.
If licences are taken to be held by the Secretary under section 225B, the licences are subject to the same encumbrances (if any) to which the licences were subject immediately before they were held by the Secretary.
If an interest in land vests in the Secretary under section 225B, the interest so vested is subject to the encumbrances (if any) to which the interest was subject immediately before so vesting.
A person who, before the day on which the Disability Amendment Act 2012 comes into operation, was appointed as a community visitor for a particular region is, on and from that day, taken to be appointed as a community visitor generally.
On and after the day on which the Disability Amendment Act 2012 comes into operation, a behaviour management plan (within the meaning of this Act as in force immediately before that day) is taken to be a behaviour support plan.
On and after the day on which the Disability Act, regulation or other document must be, unless the context otherwise requires, construed as a reference to a behaviour support plan. * * * * * * * * * *
On and after the day on which the Disability Amendment Act 2012 comes into operation, a community residential unit (within the meaning of this Act as in force immediately before that day) is taken to be a group home.
On and after the day on which the Disability Amendment Act 2012 comes into operation, any reference to a community residential unit in any Act, regulation or other document must be, unless the context otherwise requires, construed as a reference to a group home. * * * * *
In this Division— commencement day means the day on which the Disability Amendment Act 2017 commences; old Act means the Disability Act 2006 as in force before the commencement of the Disability Amendment Act 2017.
The old Act continues to apply to a complaint made before the commencement day that was ongoing immediately before the commencement day.
Sections 132ZB and 132ZC apply to information, whether acquired before, on or after the commencement day.
Despite the amendment of section 152(2)(f) by section 358 of the Serious Offenders Act 2018, section 152(2)(f) has effect, on and after the commencement day, as if a reference in that section to a supervision order or an interim supervision order within the meaning of the Serious Offenders Act 2018 included a reference to a to a supervision order or an interim supervision order that is continued in force by subclause 4(1) of Schedule 4 to the Serious Offenders Act 2018.
In this section— commencement day means the day on which section 358 of the Serious Offenders Act 2018 comes into operation.
Subject to subsection (2), on and from the commencement day, a residential service declared to be a group home under section 64(1) by notice published in the Government Gazette in force immediately before the commencement day, ceases to be a group home for the purposes of this Act if the following criteria are met— (a) the group home is an SDA enrolled dwelling; and (b) each resident in the group home— (i) is living in the SDA enrolled dwelling that is under a residential rental agreement within the meaning of the Residential Tenancies Act 1997 and that agreement has commenced; or (ii) has entered into an SDA residency agreement in relation to the SDA enrolled dwelling and that agreement has commenced; or (iii) has worked with an SDA provider to establish an SDA residency agreement in relation to the SDA enrolled dwelling and that agreement has commenced; and (c) the relevant SDA provider has given to the Secretary written notice of the event referred to in paragraph (b).
If, 6 months after the commencement day, the criteria referred to in subsection (1) are not met by a residential service declared to be a group home under section 64(1) by notice published in the Government Gazette in force immediately before the commencement day, the residential service ceases to be a group home for the purposes of this Act.
Nothing in this section prevents a declaration being made under section 64(1) after the commencement day in respect of a residential service to which this section applies.
In this section— commencement day means the day on which section 125 of the Disability (National Disability Insurance Scheme Transition) Amendment Act 2019 comes into operation.
If immediately before the day a person becomes an NDIS participant the person has a behaviour support plan, on and from that day— (a) the behaviour support plan is taken to be an NDIS behaviour support plan for the purposes of Part 6B and the NDIS (Restrictive Practices and Behaviour Support) Rules; and (b) the use of any restrictive practices referred to in the behaviour support plan is taken to be authorised by the Authorised Program Officer of the registered NDIS provider intending to use the restrictive practices on the person and, as the case requires approved by the Senior Practitioner— until whichever of the following happens first— (c) the behaviour support plan expires; (d) an NDIS behaviour support plan is developed for the NDIS participant.
The Senior Practitioner may issue directions in relation to the use of restrictive practices on an NDIS participant to whom a behaviour support plan referred to in subsection (1) applies.
If immediately before the day a person becomes an SDA resident living in an SDA enrolled dwelling under an SDA residency agreement the person does not have an NDIS behaviour support plan but does have a treatment plan developed under Division 5 of Part 8, on and from that day— (a) the treatment plan is taken to be an NDIS behaviour support plan for the purposes of Division 7 of Part 8 and the NDIS (Restrictive Practices and Behaviour Support) Rules until— (i) an NDIS behaviour support plan is developed for the NDIS participant; or (ii) it expires or is revoked under section 196 or 196A— whichever occurs sooner; and (b) the supervised treatment order to which the treatment plan is attached— (i) continues in force until it expires or is revoked under section 196 or 196A; and (ii) is taken to be the responsibility of the Authorised Program Officer of the disability service provider that applied for the supervised treatment order or, if the disability service provider has become a registered NDIS provider, the Authorised Program Officer appointed by that registered NDIS provider; and (c) the relevant place at which the person is to reside referred to in section 193(3)(b) is taken to be an SDA enrolled dwelling under an SDA residency agreement in relation to the NDIS participant. If a registered NDIS provider intends to use regulated restrictive practices on a person referred to in subsection (1), the registered NDIS provider must comply with section 201L.
The Senior Practitioner may issue directions in relation to the use of restrictive practices on an NDIS participant to whom an NDIS behaviour support plan referred to in subsection (1) applies.
If immediately before the day a person becomes an NDIS participant the person is subject to a supervised treatment order obtained by a disability service provider, on and from that day (despite the person residing at an SDA enrolled dwelling)— (a) the person's treatment plan is taken to be the treatment plan attaching the NDIS behaviour support plan for the purposes of Divisions 5 and 7 of Part 8; and (b) the registered NDIS provider providing supported independent living services to the person is taken to be the disability service provider who obtained the supervised treatment order for the purposes of Division 5 of Part 8; and (c) the registered NDIS provider in implementing the supervised treatment order must comply with the requirements of Division 7 of Part 8; and (d) the supervised treatment order continues in force until it expires or is revoked under section 196 or 196A.
If immediately before the day a person becomes an NDIS participant the person is subject to an assessment order obtained by a disability service provider, on and from that day (despite the person residing at an SDA enrolled dwelling)— (a) the registered NDIS provider providing supported independent living services to the person is taken to be the disability service provider who obtained the assessment order for the purposes of Division 5 of Part 8; and (b) the assessment order continues in force until it expires or is revoked under section 199 or 199A. * * * * *
On and from 30 June 2020 the premises known as the "Long Term Residential Program" is taken to be a long-term residential treatment facility.
Despite anything to the contrary in section 152(1), a person residing at the Long Term Residential Program immediately before 30 June 2020 is taken to be admitted to the residential treatment facility known as "Long Term Residential Program" on that day for a period not exceeding 12 months.
On and from 30 June 2020, sections 156, 157 and 158 are taken to apply to a person referred to in subsection (2) and residing at the residential treatment facility known as "Long Term Residential Program" despite the person not being subject to an order referred to in section 152(2).
In this Division— commencement day means the day on which the Worker Screening Act 2020 comes into operation.
On the commencement day, the Secretary must provide to the Secretary to the Department of Justice and Community Safety information that is sufficient to identify any person who, before the commencement of the Worker Screening
This section applies if, immediately before the commencement day— (a) a person had a safety screening that was current in accordance with the safety screening requirements; and (b) a notification or complaint had been made to the Secretary that is relevant to that person's suitability to provide services under the NDIS to NDIS participants; and (c) the complaint or notification had not been finally dealt with in accordance with the safety screening requirements.
Despite the amendment of this Act by section 194 of the Worker Screening Act 2020— (a) the Secretary may investigate the complaint or notification; and (b) the safety screening requirements continue to apply for 3 months after the commencement day to the extent necessary to enable the notification or complaint to be investigated.
In this section— safety screening requirements means the safety screening requirements for persons employed or engaged, or to be employed or engaged, by registered NDIS providers for the purpose of providing services to NDIS
═══════════════
See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. Minister's second reading speech— Legislative Assembly: 1 March 2006 Legislative Council: 4 April 2006 The long title for the Bill for this Act was "to enact a new legislative scheme for persons with a disability, to repeal the Intellectually Disabled Persons' Services Act 1986 and the Disability Services Act 1991, to amend certain other Acts and for other purposes." The Disability Act 2006 was assented to on 16 May 2006 and came into operation as follows: Sections 1, 2 on 17 May 2006: section 2(1); rest of Act on 1 July 2007: section 2(3). Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act. Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause. As from 1 January 2001, amendments to section 36 of the ILA have the following effects: All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A). All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A). All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B). All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C). A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B. Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act. See section 36(3)(3D)(3E).
This publication incorporates amendments made to the Disability Act 2006 by Acts and subordinate instruments. ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Assent Date: Commencement Date: S. 241(4) inserted on 1.7.19 by No. 19/2019 s. 125: Special Gazette (No. 254) 25.6.19 p. 1 Note: S. 241(4) repealed s. 241 on 1.7.21 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 26(Sch. item 26) on 11.10.06: s. 2(1) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 34 on 27.6.07: s. 2(1) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 54(Sch. Pt 1 item 16), (Sch. Pt 2 item 19) on 1.1.10: s. 2(2) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 10 on 1.1.10: Government Gazette 10.12.09 p. 3215 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 219(Sch. 3 item 1) on 1.1.10: Government Gazette 24.12.09 p. 3397 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 51(Sch. item 19) on 1.7.10: s. 2(2) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 11 on 23.6.10; ss 7–10, 12 on 1.7.10: Special Gazette (No. 235) 23.6.10 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 3(Sch. 1 item 28) on 22.6.11: s. 2(1) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 18 on 1.3.12: Special Gazette (No. 45) 21.2.12 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 14 on 1.7.12: s. 2(2) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 226(Sch. 5 item 11) on 26.11.12: Special Gazette (No. 384) 20.11.12 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: Ss 4–83 on 1.7.12: s. 2(2) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 42(Sch. 2 item 8) on 3.3.14: Special Gazette (No. 46) 18.2.14 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 55 on 14.3.13: s. 2 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: 18.12.13: s. 2 Current State: All of Act in operation Assent Date: Commencement Date: S. 455(Sch. item 35) on 1.7.14: s. 2(1) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 10(Sch. item 45) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 146 on 31.10.14: Special Gazette (No. 330) 23.9.14 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 151 on 1.9.15: s. 2(2) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 140(Sch. 3 item 12) on 17.9.14: Special Gazette (No. 317) 16.9.14 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: Ss 12, 13 on 10.11.14: Special Gazette (No. 364) 14.10.14 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 147(Sch. 2 item 14) on 15.10.14: Special Gazette (No. 364) 14.10.14 p. 2 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 93 on 1.5.16: Special Gazette (No. 114) 26.4.16 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: Ss 169, 170 on 1.2.17: s. 2(2) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 156 on 12.3.18: s. 2(2) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 15 on 1.7.17: Special Gazette (No. 216) 27.6.17 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 134(Sch. 1 item 6) on 1.9.17: s. 2(3) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 35 on 26.2.18: Special Gazette (No. 40) 6.2.18 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: Ss 4–32 on 16.8.17: s. 2 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 48 on 27.2.18: Special Gazette (No. 49) 13.2.18 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 68(Sch. 2 item 40) on 1.3.19: s. 2(2) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: Ss 351(Sch. 4 cl. 20), 358 on 3.9.18: Special Gazette (No. 356) 31.7.18 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: Ss 311–314 on 1.7.19: Special Gazette (No. 254) 25.6.19 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 221(Sch. 1 item 12) on 1.3.20: s. 2(2) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: Ss 4–17 on 26.6.19: s. 2(1); ss 18–125 on 1.7.19: Special Gazette (No. 254) 25.6.19 p. 1; s. 145(1)−(3) on 2.7.19: Special Gazette (No. 254) 25.6.19 p. 1; ss 126–144, 145(4), 146 on 1.7.20: s. 2(4) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: S. 390(Sch. 1 item 23.3) on 6.4.20: Special Gazette (No. 150) 24.3.20 p. 1; s. 390(Sch. 1 items 23.1, 23.2) on 24.10.20: s. 2(3)(f) Current State: This information relates only to the provision/s amending the Disability Act 2006 Assent Date: Commencement Date: Ss 193−196 on 1.2.21: Special Gazette (No. 647) 8.12.20 p. 1 Current State: This information relates only to the provision/s amending the Disability Act 2006 –––––––––––––––––––––––––––––––––––––––––––––––––––
This version does not contain amendments that are not yet in operation.
Section 35 read as follows:
At the foot of sections 36 and 128 of the "Note See also Part 5A of the Family Violence Protection Act 2008 in respect of the use and disclosure obligations of persons or bodies prescribed to be information sharing entities under that Act.".
Section 68(Schedule 2 item 40) read as follows:
40.1 In section 124(5), after "oath or" insert "by".