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TASMANIA
__________
DISABILITY SERVICES AMENDMENT BILL 2019
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 5 substituted
5. Principles
5. Section 7 amended (Strategic plan)
6. Section 8 amended (Operational plans)
7. Section 28 amended (Rights of authorised officers after entry of
premises)
8. Section 36 amended (Use of unauthorised restrictive intervention
prohibited)
9. Section 41A inserted
41A. Provisional grant of approval to carry out restrictive
intervention
10. Section 50 amended (Sharing of information)
11. Repeal of Act
[Bill 10]-IV
2
DISABILITY SERVICES AMENDMENT BILL 2019
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
29 May 2019
(Brought in by the Minister for Disability Services and
Community Development, the Honourable Jacqueline Anne
Petrusma)
A BILL FOR
An Act to amend the Disability Services Act 2011
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Disability Services
Amendment Act 2019.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 10] 3
Disability Services Amendment Act 2019
Act No. of 2019
s. 3
3. Principal Act
In this Act, the Disability Services Act 2011* is
referred to as the Principal Act.
4. Section 5 substituted
Section 5 of the Principal Act is repealed and the
following section is substituted:
5. Principles
(1) The following are the general principles
that are to guide actions under this Act:
(a) people with disability have the
same right as other members of
Australian society to realise their
potential for physical, social,
emotional and intellectual
development;
(b) people with disability should be
supported to participate in, and
contribute to, social and
economic life to the extent of
their ability;
(c) people with disability and their
families and carers should have
certainty that people with
disability will receive the care
and support they need over their
lifetime;
_______________________________________________________________
*No. 27 of 2011
4
Disability Services Amendment Act 2019
Act No. of 2019
s. 4
(d) people with disability should be
supported to exercise choice,
including in relation to taking
reasonable risks, in the pursuit of
their goals and the planning and
delivery of their supports;
(e) people with disability should be
supported to receive reasonable
and necessary supports (including
early intervention supports)
within the meaning of the
National Disability Insurance
Scheme Act 2013 of the
Commonwealth;
(f) people with disability have the
same right as other members of
Australian society to be respected
for their worth and dignity and to
live free from abuse, neglect and
exploitation;
(g) people with disability have the
same right as other members of
Australian society to pursue any
grievance;
(h) people with disability have the
same right as other members of
Australian society to be able to
determine their own best
interests, including the right to
exercise choice and control, and
to engage as equal partners in
decisions that will affect their
5
Disability Services Amendment Act 2019
Act No. of 2019
s. 4
lives, to the full extent of their
capacity;
(i) people with disability should be
supported in all their dealings and
communications so that their
capacity to exercise choice and
control is maximised in a way
that is appropriate to their
circumstances and cultural needs;
(j) people with disability should
have their privacy and dignity
respected;
(k) the role of families, carers and
other significant persons in the
lives of people with disability is
to be acknowledged and
respected;
(l) the role of advocacy in
representing the interests of
people with disability is to be
acknowledged and respected,
recognising that advocacy
supports people with disability
by -
(i) promoting their
independence and social
and economic
participation; and
(ii) promoting choice and
control in the pursuit of
their goals and the
6
Disability Services Amendment Act 2019
Act No. of 2019
s. 4
planning and delivery of
their supports; and
(iii) maximising independent
lifestyles of people with
disability and their full
inclusion in the
community;
(m) innovation, quality, continuous
improvement, contemporary best-
practice and effectiveness in the
provision of supports to people
with disability are to be
promoted;
(n) positive personal and social
development of people with
disability, including children and
young people, is to be promoted.
(2) If this Act requires or permits an act or
thing to be done by or in relation to a
person with disability by another person,
the act or thing is to be done, so far as
practicable, in accordance with both the
general principles set out above and the
following principles:
(a) people with disability should be
involved in decision-making
processes that affect them, and
where possible make decisions
for themselves;
7
Disability Services Amendment Act 2019
Act No. of 2019
s. 4
(b) people with disability should be
encouraged to engage in the life
of the community;
(c) the judgements and decisions that
people with disability would have
made for themselves should be
taken into account;
(d) the cultural and linguistic
circumstances, and the gender, of
people with disability should be
taken into account;
(e) the supportive relationships,
friendships and connections, with
others, of people with disability
should be recognised;
(f) if the person with disability is a
child - the best interests of the
child are paramount, and full
consideration should be given to
the need to -
(i) protect the child from
harm; and
(ii) promote the child's
development; and
(iii) strengthen, preserve and
promote positive
relationships between the
child and the child's
parents, family members
and other people who are
8
Disability Services Amendment Act 2019
Act No. of 2019
s. 4
significant in the life of
the child.
(3) It is the duty of a person who may do a
thing on behalf of a child to ascertain the
wishes of the child concerned and to act
in the best interests of the child.
(4) It is the duty of a person who may do a
thing on behalf of a child to provide
disability, and age-appropriate, assistance
in decision making by the child
personally and to have regard to, and
give appropriate weight to, the views of
the child.
(5) A person does not breach the duty
imposed by subsection (3) or (4) by
doing a thing if, when the thing is done,
the person reasonably believes that -
(a) he or she has ascertained the
wishes of the child in relation to
the thing; and
(b) the doing of the thing is in the
best interests of the child.
(6) A person does not breach the duty
imposed by subsection (3) or (4) by
refraining from doing a thing if, at the
relevant time, the person reasonably
believes that -
(a) he or she has ascertained the
wishes of the child in relation to
the thing; and
9
Disability Services Amendment Act 2019
Act No. of 2019
s. 5
(b) not doing the thing is in the best
interests of the child.
5. Section 7 amended (Strategic plan)
Section 7(10) of the Principal Act is amended by
omitting "or purchase".
6. Section 8 amended (Operational plans)
Section 8(7) of the Principal Act is amended by
omitting "or purchase".
7. Section 28 amended (Rights of authorised officers
after entry of premises)
Section 28(3) of the Principal Act is amended by
omitting "is entitled" and substituting "has the
right".
8. Section 36 amended (Use of unauthorised restrictive
intervention prohibited)
Section 36(3) of the Principal Act is amended as
follows:
(a) by omitting "under the Mental Health
Act 1996" and substituting ", or the Chief
Civil Psychiatrist, under the Mental
Health Act 2013";
(b) by inserting in paragraph (a) "or the
Chief Civil Psychiatrist" after "by the
Chief Forensic Psychiatrist";
10
Disability Services Amendment Act 2019
Act No. of 2019
s. 9
(c) by inserting in paragraph (a) "or the
Chief Civil Psychiatrist" after "of the
Chief Forensic Psychiatrist";
(d) by inserting in paragraph (b) "the Chief
Civil Psychiatrist," after "Psychiatrist,".
9. Section 41A inserted
After section 41 of the Principal Act, the
following section is inserted in Division 3:
41A. Provisional grant of approval to carry out
restrictive intervention
(1) After receiving an application under
section 41 and before holding a hearing
under section 42, the Guardianship and
Administration Board may, subject to
subsection (2), grant provisional approval
to carry out a restrictive intervention of a
type referred to in section 42.
(2) The Guardianship and Administration
Board must not grant provisional
approval to carry out a restrictive
intervention of a type referred to in
section 42 unless the Board has received
from the Senior Practitioner a favourable
assessment in respect of the following
matters:
(a) the best interests of the person
with disability;
11
Disability Services Amendment Act 2019
Act No. of 2019
s. 9
(b) the consequences to the person
with disability if restrictive
intervention of that type is carried
out in relation to the person;
(c) the consequences to the person
with disability, or other persons,
if restrictive intervention of that
type is not carried out in relation
to the person with disability;
(d) any alternative method
reasonably suitable and able to be
used in relation to the person with
disability to control the behaviour
for which the type of restrictive
intervention has been proposed;
(e) the nature and degree of any
significant risks to the person
with disability if the restrictive
intervention is carried out;
(f) whether, and the extent to which,
carrying out the restrictive
intervention will promote or
reduce the safety, health and
wellbeing of the person with
disability.
(3) A provisional approval remains in effect
for a period of up to 90 days.
12
Disability Services Amendment Act 2019
Act No. of 2019
s. 10
10. Section 50 amended (Sharing of information)
The definition of information-sharing entity in
section 50(1) of the Principal Act is amended as
follows:
(a) by inserting in paragraph (d) "approved"
after "hospital,";
(b) by omitting from paragraph (d) "Mental
Health Act 1996" and substituting
"Mental Health Act 2013";
(c) by inserting in paragraph (h) "or the
Chief Civil Psychiatrist" after
"Psychiatrist";
(d) by inserting the following paragraphs
after paragraph (h):
(ha) the NDIS Quality and Safeguards
Commission established by
section 181A of the National
Disability Insurance Scheme Act
2013 of the Commonwealth; or
(hb) the National Disability Insurance
Agency established as the
National Disability Insurance
Scheme Launch Transition
Agency by section 117 of the
National Disability Insurance
Scheme Act 2013 of the
Commonwealth; or
13
Disability Services Amendment Act 2019
Act No. of 2019
s. 11
11. Repeal of Act
This Act is repealed on the first anniversary of
the day on which it commenced.
14 Government Printer, Tasmania