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This is a Bill, not an Act. For current law, see the Acts databases.


Disability Amendment Bill 2017

               Disability Amendment Act 2017
                            No.           of 2017


                      TABLE OF PROVISIONS
Clause                                                                   Page

Part 1--Preliminary                                                         1
 1       Purpose                                                           1
 2       Commencement                                                      2
 3       Principal Act                                                     2
Part 2--Amendment of the Disability Act 2006                                3
 4       Definitions                                                        3
 5       Principles                                                         6
 6       Functions of the Disability Services Commissioner                  7
 7       Powers of the Disability Services Commissioner                     9
 8       Annual report                                                     10
 9       New section inserted after section 19                             12
 10      Information systems and disclosure, use and transfer of
         information                                                       12
 11      Report on complaints about disability service providers           14
 12      Heading to Division 5A of Part 6 substituted                      15
 13      Section 106A substituted                                          15
 14      Report on complaints about regulated service providers            15
 15      Duty to take all reasonable steps to prevent adverse effects      15
 16      Purpose of Division 6 of Part 6                                   16
 17      Section 108A substituted                                          16
 18      What matters can be the subject of a complaint?                   16
 19      Investigation of a complaint                                      17
 20      Notice of decision and procedures                                 17
 21      Repeal of section 122, attendance of witnesses, calling for
         evidence etc.                                                     17
 22      Section 123 substituted                                           17
 23      Repeal of section 124, warrants                                   17
 24      Repeal of section 125, false statements                           17
 25      Repeal of section 126, persons not to be penalised for making
         a complaint                                                       17
 26      Repeal of section 127, protections                                17
 27      Repeal of section 128, secrecy                                    18
 28      New Divisions inserted after Division 6 of Part 6                 18
 29      New Divisions inserted after Division 7 of Part 6                 33
 30      Power to bring proceedings                                        57



                                      i

 


 

Clause Page 31 Regulations 57 32 New Division inserted in Part 10 58 Part 3--Repeal of amending Act 59 33 Repeal of amending Act 59 ═════════════ Endnotes 60 1 General information 60 ii

 


 

Disability Amendment Act 2017 No. of 2017 [Assented to ] The Parliament of Victoria enacts: Part 1--Preliminary 1 Purpose The purpose of this Act is to amend the Disability Act 2006-- (a) to provide for investigations by the Disability Services Commissioner into-- (i) complaints about the provision of certain services to persons with a disability; and 1

 


 

Disability Amendment Act 2017 No. of 2017 Part 1--Preliminary (ii) abuse and neglect in the provision of certain services to persons with a disability; and (iii) matters referred to the Disability Services Commissioner by the Minister or the Secretary; and (b) to provide for minor and related matters. 2 Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. 3 Principal Act In this Act, the Disability Act 2006 is called the Principal Act. 2

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 Part 2--Amendment of the Disability Act 2006 4 Definitions (1) In section 3(1) of the Principal Act insert the following definitions-- "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; Commissioner for Privacy and Data Protection has the same meaning as Commissioner has in the Privacy and Data Protection Act 2014; Commission for Children and Young People has the same meaning as Commission has in the Commission for Children and Young People Act 2012; 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; follow up investigation means an investigation under section 128R(1); Health Complaints Commissioner has the same meaning as Commissioner has in the Health Complaints Act 2016; 3

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 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); initiated investigation means an investigation under section 128B(1); 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 National Disability Insurance Scheme Act 2013 of the Commonwealth; 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; Ombudsman means the Ombudsman appointed under the Ombudsman Act 1973; 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 4

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (ii) of a class of service provider prescribed for the purposes of this definition; referral investigation means an investigation under section 128I(1); 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 service provider means any of the following-- (a) a contracted service provider; (b) a funded service provider; (c) a prescribed service provider; State Coroner has the same meaning as in the Coroners Act 2008; systemic initiated investigation means an initiated investigation under section 128B(1)(a); Victoria Police has the same meaning as in the Victoria Police Act 2013;". (2) In section 3(1) of the Principal Act, the definition of Minister is repealed. 5

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (3) In section 3(1) of the Principal Act, for the definition of authorised officer substitute-- "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;". 5 Principles (1) In section 5(3) of the Principal Act-- (a) for "Disability services should--" substitute "Disability services and regulated disability services should--"; (b) after paragraph (m) insert-- "(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;". (2) In section 5(5) of the Principal Act, after "disability services" insert "and regulated disability services". 6

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 6 Functions of the Disability Services Commissioner In section 16 of the Principal Act-- (a) for paragraph (a) substitute-- "(a) to investigate complaints relating to disability services and regulated disability services;"; (b) after paragraph (b) insert-- "(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) in paragraph (c), for "or inquire into" substitute ", inquire into or investigate"; (d) after paragraph (c) insert-- "(ca) to conduct investigations into the provision of services to persons with a disability as specified in this Act;"; (e) in paragraph (d), after "disability service provider" insert "or a regulated service provider"; (f) in paragraph (e), after "complaints procedures" insert "and procedures for accountability investigations"; (g) in paragraph (f), after "complaints received" insert "and investigations conducted"; (h) paragraph (g) is repealed; (i) in paragraph (h), after "disability services complaints systems" insert "or complaints systems of regulated service providers"; (j) paragraph (l) is repealed; 7

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (k) for paragraphs (n) and (o) substitute-- "(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;"; (l) for paragraph (p) substitute-- "(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;". 8

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 7 Powers of the Disability Services Commissioner In section 17(1) of the Principal Act-- (a) for paragraph (b)(i) substitute-- "(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"; (b) for paragraph (d) substitute-- "(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;"; 9

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (c) in paragraph (e)-- (i) after "disability service providers" insert "and regulated service providers"; (ii) omit "relating to disability services"; (d) for paragraph (f) substitute-- "(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.". 8 Annual report (1) In section 19(1) of the Principal Act-- (a) for paragraph (a) substitute-- "(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"; 10

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (b) for paragraph (b) substitute-- "(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--". (2) For section 19(2) of the Principal Act substitute-- "(2) 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.". (3) In section 19(3) of the Principal Act, for "disability service provider" (wherever occurring) substitute "service provider". 11

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 9 New section inserted after section 19 After section 19 of the Principal Act insert-- "19A Protection from liability for Commissioner (1) 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. (2) 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. (3) Nothing in this section derogates from the effect of section 132U.". 10 Information systems and disclosure, use and transfer of information (1) For the heading to section 39 of the Principal Act substitute-- "Information systems and disclosure, use and transfer of information". (2) In section 39(4) of the Principal Act-- (a) in paragraph (l), for "be made." substitute "be made;"; (b) after paragraph (l) insert-- "(m) to the NDIA and to any prescribed person or body, and to any person or body of a prescribed class of person or 12

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 body, for the purposes of the National Disability Insurance Scheme, within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth; (n) to the Commonwealth Minister administering the Aged Care Act 1997 of the Commonwealth for the purposes of providing, arranging or funding services to a person with a disability who is or was receiving disability services or regulated disability services.". (3) After section 39(5) of the Principal Act insert-- "(6) For any purpose for or with respect to the NDIS or the implementation of the NDIS, any person or body is authorised to use or transfer the information described below and to disclose the information described below to the NDIA, or to any prescribed person or body, or to any person or body of a prescribed class of person or body-- (a) information about disability services or regulated disability services or any other prescribed services; and (b) information about the provision of disability services or regulated disability services to persons, including information about the services any person requires, any carer of a person and any support structure of a person; and (c) information about any staff engaged in the provision of disability services or regulated disability services. 13

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (7) 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. (8) 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. (9) Subsections (6), (7) and (8) have effect despite any other Act or law, other than the Charter of Human Rights and Responsibilities Act 2006. (10) In this section-- NDIS means the National Disability Insurance Scheme within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth.". 11 Report on complaints about disability service providers At the end of section 105 of the Principal Act insert-- "(2) Subsection (1) does not apply to a disability service provider who is an exempt service provider.". 14

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 12 Heading to Division 5A of Part 6 substituted For the heading to Division 5A of Part 6 of the Principal Act substitute-- "Division 5A--Complaints to regulated service providers". 13 Section 106A substituted For section 106A of the Principal Act substitute-- "106A Internal process of regulated service provider for complaints 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.". 14 Report on complaints about regulated service providers In section 106B of the Principal Act, for "A contracted service provider or funded service provider" substitute "A regulated service provider, other than an exempt service provider,". 15 Duty to take all reasonable steps to prevent adverse effects In section 106C of the Principal Act, for "A contracted service provider or funded service provider" substitute "A regulated service provider". 15

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 16 Purpose of Division 6 of Part 6 In section 107 of the Principal Act-- (a) in paragraph (b), for "providers." substitute "providers; and"; (b) after paragraph (b) insert-- "(c) the provision of services by prescribed service providers to persons with a disability specifically for the support of those persons.". 17 Section 108A substituted For section 108A of the Principal Act substitute-- "108A References to service provider 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.". 18 What matters can be the subject of a complaint? (1) For section 109(a), (b) and (c) of the Principal Act substitute-- "(a) arises out of the provision of disability services or regulated disability services; or (b) is that a disability service provider or a regulated service provider has acted unreasonably by not properly investigating, or not taking proper action on, a complaint made to the service provider.". 16

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (2) At the end of section 109 of the Principal Act insert-- "(2) A complaint about a provision of services by an exempt service provider may not be made to the Disability Services Commissioner under this section.". 19 Investigation of a complaint Section 118(3) of the Principal Act is repealed. 20 Notice of decision and procedures Section 119(3), (4), (5), (6), (7), (8), (9) and (10) of the Principal Act are repealed. 21 Repeal of section 122, attendance of witnesses, calling for evidence etc. Section 122 of the Principal Act is repealed. 22 Section 123 substituted For section 123 of the Principal Act substitute-- "123 Powers not to be exercised during conciliation The Disability Services Commissioner must not exercise a power under Division 8 while a complaint is being conciliated.". 23 Repeal of section 124, warrants Section 124 of the Principal Act is repealed. 24 Repeal of section 125, false statements Section 125 of the Principal Act is repealed. 25 Repeal of section 126, persons not to be penalised for making a complaint Section 126 of the Principal Act is repealed. 26 Repeal of section 127, protections Section 127 of the Principal Act is repealed. 17

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 27 Repeal of section 128, secrecy Section 128 of the Principal Act is repealed. 28 New Divisions inserted after Division 6 of Part 6 After Division 6 of Part 6 of the Principal Act insert-- "Division 6A--Initiated investigations Subdivision 1--Preliminary 128A Definition In this Division-- Commissioner means the Disability Services Commissioner. Subdivision 2--Commissioner initiated investigations 128B Commissioner initiated investigations (1) The Commissioner, on the Commissioner's own initiative, may conduct an investigation into-- (a) the provision of disability services or regulated disability services; or (b) the provision of-- (i) a disability service to a person with a disability; or (ii) a regulated disability service to a person with a disability. (2) 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. 18

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (3) 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. (4) 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. (5) The Commissioner must not conduct an investigation under this section about a provision of services by an exempt service provider. 128C Notice of initiated investigation (1) 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 19

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 person, or, if none, the next of kin of the person. (2) 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. (3) 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. (4) 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. 20

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (5) 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. 128D Decision of Commissioner on initiated investigation (1) 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. (2) 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. 128E Decision that action should be taken (1) 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. 21

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (2) 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. (3) 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. (4) 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. (5) 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. 128F Notice of decision of initiated investigation (1) Within 14 days after making a decision on a systemic initiated investigation the Commissioner-- 22

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (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. (2) 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. (3) 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. 23

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (4) A notice under this section-- (a) must be in writing; and (b) must set out reasons for the decision. 128G Notice to take action 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. Division 6B--Referral investigations Subdivision 1--Preliminary 128H Definition In this Division-- Commissioner means the Disability Services Commissioner. Subdivision 2--Referral investigations 128I Referral investigations (1) The Commissioner may conduct an investigation into a matter referred to the Commissioner under subsection (2). 24

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (2) The Minister or the Secretary, in writing, may refer to the Commissioner for investigation any matter relating to-- (a) the provision of disability services or regulated disability services; or (b) complaints about disability services or regulated disability services; or (c) abuse or neglect in the provision of disability services or regulated disability services. (3) 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. (4) 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. (5) 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 25

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (c) general issues about the provision of disability services or regulated disability services or about a specific group of persons with a disability. (6) The Commissioner must not conduct an investigation under subsection (1) into a provision of services by an exempt service provider. 128J Publication of referral investigations (1) The Commissioner must publish details of any referral investigation on the Internet site of the Commissioner, within 14 days after receiving the referral. (2) In publishing details under subsection (1), the Minister or Secretary may require the Commissioner not to publish identifying details of any person. 128K Notice of referral investigation (1) 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. (2) If the Commissioner decides to conduct a referral investigation in which a power under Subdivision 3 or 4 of Division 8 will be exercised, the Commissioner must give notice of the investigation to each service provider being investigated-- (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. 26

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (3) 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. (4) 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. 128L Decision of Commissioner on referral 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. 27

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 128M Decision that action should be taken (1) 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. (2) 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. (3) 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. 128N Notice to take action (1) 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. (2) 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. 28

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 Division 6C--Following up on investigations Subdivision 1--Preliminary 128O Definition In this Division-- Commissioner means the Disability Services Commissioner. Subdivision 2--Reporting on action taken 128P Service provider to report on action taken (1) 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. (2) 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). (3) A service provider may apply to the Commissioner to extend the period of time within which the report must be given. (4) 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. 29

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 128Q Notice requiring service provider to report (1) 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. (2) 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. (3) 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. (4) 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. 30

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 Subdivision 3--Follow up investigations 128R Follow up investigations (1) 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. (2) The Commissioner must not conduct an investigation under subsection (1) about a provision of services by an exempt service provider. 128S Notice of follow up investigation (1) Within 14 days after deciding to conduct a follow up investigation, the Commissioner must give notice of the investigation to the service provider. (2) 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. (3) 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 31

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (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. 128T Decision of Commissioner on follow up investigation (1) 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. (2) 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. (3) 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. 128U Notice of decision on follow up investigation (1) 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. (2) 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.". 32

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 29 New Divisions inserted after Division 7 of Part 6 After Division 7 of Part 6 of the Principal Act insert-- "Division 8--Conduct of investigations, investigatory powers and related matters Subdivision 1--Preliminary 132A Definitions 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. Subdivision 2--Authorised officers 132B Appointment of authorised officers (1) 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. (2) 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. 33

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 132C Identification of authorised officers (1) The Commissioner must issue an identification document to each authorised officer. (2) 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. Subdivision 3--Inspection and search powers 132D Production of identification (1) 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. (2) Subsection (1) does not apply to a requirement made by post. 132E Visit and inspection of premises (1) 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 a service that is being investigated. 34

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (2) An authorised officer may visit and inspect premises under subsection (1) with any assistance the authorised officer reasonably requires. (3) 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. (4) 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. (5) For the purposes of subsection (4)(b), if a room is occupied by more than one person, consent must be obtained for all occupants. 35

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 132F Powers during visit and inspection (1) 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 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 36

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (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. (2) 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. 132G Provisions relating to interviews (1) 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 37

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 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. (2) 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. (3) 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. 132H Search warrants (1) 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. (2) 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 38

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 and search for the evidence named or described in the warrant. (3) 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. (4) 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 39

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (d) a day, not later than 20 business days after the issue of the warrant, on which the warrant ceases to have effect. (5) 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. (6) 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. 132I Obligations of person executing a warrant on entry (1) 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. (2) 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. 40

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (3) 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. 132J Offence to hinder or obstruct person exercising a power under this Subdivision 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. 132K Requirement to give assistance 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. 41

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 Subdivision 4--Conduct of investigations 132L Principles applying to all investigations (1) In an accountability investigation, the Commissioner may carry out any inquiries into the subject matter of the investigation that the Commissioner believes are necessary. (2) 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. 132M Assistance to be provided A person who is providing 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. 42

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 132N Requirements if there is no hearing 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. 132O Requirements if there is a hearing (1) 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. (2) 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 43

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (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. (3) 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. 132P Investigation hearing notice (1) 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. 44

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (2) 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. (3) A person with a disability on whom a notice to attend a hearing has been served under subsection (1) may apply to the Commissioner for an agreement under subsection (2). (4) 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. (5) 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; 45

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (ii) examples of what may constitute a reasonable excuse for failing to comply with the notice; (iii) any other prescribed information. 132Q Offence to fail to comply with investigation hearing notice (1) 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. (2) For the purpose of subsection (1), it is a reasonable excuse if the person is acting under an agreement under section 132P(2). 132R Variation or revocation of investigation hearing notice (1) 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. (2) 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. 46

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (3) 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. 132S Power to take evidence on oath or affirmation (1) 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. (2) 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). 132T Powers in relation to documents and things (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. 47

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (2) 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. Subdivision 5--Offences, protections and other matters relating to investigations 132U Compellability of Commissioner or member of staff 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. 132V Protection of participants in investigations 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. 132W Disclosures made in good faith 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 48

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (b) does not make the person who made the disclosure subject to any liability in respect of the disclosure. 132X Protection against self-incrimination 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. 132Y Legal professional privilege and client legal privilege 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. 132Z False statements 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. 49

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 132ZA Person not to be penalised for making a complaint, providing information (1) 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; 600 penalty units, in the case of a body corporate. (2) 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 50

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (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; 600 penalty units, in the case of a body corporate. Subdivision 6--Disclosure of information 132ZB Commissioner may give information to other persons or bodies 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; 51

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (k) Victoria Police; (l) the State Coroner; (m) any person prescribed by the regulations. 132ZC Offence to disclose or make a record of information (1) 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. (2) 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 52

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (e) if the disclosure or the making of the record is otherwise authorised by this Act. (3) 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. (4) 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. 53

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (5) 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. Division 9--General issues applying to investigations 132ZD Definition In this Division-- Commissioner means the Disability Services Commissioner. 132ZE Reporting on investigations (1) As soon as possible after completing a systemic initiated investigation, the Commissioner must give the Minister and the Secretary a report of the investigation. (2) After completing an individual initiated investigation, the Commissioner may give the Minister or the Secretary a report of the investigation. (3) After completing a referral investigation, the Commissioner must give the Minister and the Secretary a report in writing of the investigation. 54

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 132ZF Adverse comment on or opinion of service provider in report 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. 132ZG Giving a report to Parliament (1) 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. (2) 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. 55

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (3) 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. (4) 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. (5) 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. (6) 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 56

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 (c) cause the copy of the report to be laid before the House on the next sitting day of the House. (7) 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. 132ZH Avoiding unnecessary duplication 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.". 30 Power to bring proceedings In section 218(2) of the Principal Act, for "Division 6" substitute "Division 6C or Division 8". 31 Regulations After section 221(1)(f) of the Principal Act insert-- "(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 57

 


 

Disability Amendment Act 2017 No. of 2017 Part 2--Amendment of the Disability Act 2006 providers for the purposes of the definition of exempt service provider;". 32 New Division inserted in Part 10 After Division 1 of Part 10 of the Principal Act insert-- "Division 2--Transitional provisions-- Disability Amendment Act 2017 232 Definitions 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. 233 Pre-existing complaints The old Act continues to apply to a complaint made before the commencement day that was ongoing immediately before the commencement day. 234 Information provisions Sections 132ZB and 132ZC apply to information, whether acquired before, on or after the commencement day.". 58

 


 

Disability Amendment Act 2017 No. of 2017 Part 3--Repeal of amending Act Part 3--Repeal of amending Act 33 Repeal of amending Act This Act is repealed on 31 December 2018. Note The repeal of this Act does not affect the continuing operation of amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═════════════ 59

 


 

Disability Amendment Act 2017 No. of 2017 Endnotes Endnotes 1 General information 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: Legislative Council: The long title for the Bill for this Act was "A Bill for an Act to amend the Disability Act 2006 and for other purposes." By Authority. Government Printer for the State of Victoria. 60

 


 

 


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