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Disability (National Disability Insurance Scheme
Transition) Amendment Act 2019
No. of 2019
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 3
Part 2--Amendment of the Disability Act 2006 4
Division 1--National Disability Insurance Scheme stage 1
amendments 4
3 Principal Act 4
4 Definitions 4
5 Secretary's powers in relation to land 4
6 Committee of management 4
7 Record of dealings 5
8 Constitution of the Disability Services Board 5
9 Admission to a residential treatment facility 5
10 Transfer of person with an intellectual disability from a prison 5
11 Termination of a security order 6
12 Death of security resident 6
13 Request for transfer to prison 6
14 Notice of transfer of security resident to another residential
treatment facility or residential institution 6
15 Transfer of persons detained in prison under the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997 6
16 Provision of staff services 6
17 Repeal of spent provisions 6
Division 2--National Disability Insurance Scheme stage 2
amendments 7
18 Purpose 7
19 Definitions 7
20 Objectives of Act 12
21 Principles 12
22 Provision of advice, notification or information under this Act 13
23 Role and functions of the Secretary 14
24 Functions of the Disability Services Commissioner 15
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25 Powers of the Disability Services Commissioner 15
26 Annual report 15
27 The Senior Practitioner 16
28 Functions of the Senior Practitioner 16
29 Power of Senior Practitioner to delegate 17
30 Special powers of the Senior Practitioner 17
31 Functions of a community visitor 20
32 New section 30A inserted 20
33 Matter may be referred 24
34 Reports by community visitors and secrecy provision 24
35 Information systems and disclosure, use and transfer of
information 25
36 New section 39A inserted 28
37 Registration 31
38 Revocation of registration 31
39 Section 44 substituted 32
40 Application for review 33
41 Certain persons or bodies deemed or may be deemed to be
registered as disability service providers 33
42 New section 48A inserted 34
43 New section 103A inserted 35
44 New section 106AA inserted 35
45 Application of Division 6 of Part 6 36
46 References to service provider 37
47 What matters can be the subject of a complaint? 37
48 New section 127 inserted 37
49 Commissioner initiated investigations 39
50 New section 128GA inserted 39
51 Referral investigations 40
52 New section 128NA inserted 41
53 Visiting of residential service 42
54 Powers of inspection 43
55 New section 130A inserted 45
56 Request to see a community visitor 46
57 New section 131A inserted 46
58 Record of visits 48
59 New section 132AA inserted 49
60 Visit and inspection of premises 50
61 Powers during visit and inspection 50
62 Assistance to be provided 50
63 New section 132ZCA inserted 50
64 New Parts 6A and 6B inserted 52
65 Part 7 heading substituted 71
66 Purpose and application of Part 72
67 Section 134 amended 73
68 Approval to use restrictive interventions 73
69 Revocation of approval 73
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70 Notice before refusal or revocation 74
71 Application for review 74
72 Authorised Program Officers 74
73 New section 139A inserted 74
74 Use of restraint and seclusion 75
75 Use of restraint and seclusion must be included in behaviour
support plan 75
76 Review of behaviour support plan by disability service
provider 76
77 Independent person 76
78 Powers of Public Advocate 77
79 Requirements for the use of restraint and seclusion 78
80 New section 145A inserted 80
81 Review by VCAT 82
82 Use of restraint or seclusion in an emergency 84
83 New section 147A inserted 85
84 Reports 86
85 Section 149 substituted 87
86 Use of other restrictive interventions 87
87 Authorised Program Officer must prepare treatment plan 88
88 Preparation of treatment plan 88
89 Transfer of persons detained in prison under the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997 89
90 Heading to Division 5 of Part 8 amended 89
91 Purpose of Division 89
92 New section 184 inserted 89
93 Heading to section 185 amended 90
94 Approval to use supervised treatment 90
95 Heading to section 187 amended 90
96 Heading to section 188 amended 91
97 Heading to section 189 amended 91
98 Heading to section 190 amended 91
99 New section 190A inserted 91
100 Application for a supervised treatment order 91
101 Heading to section 192 substituted 94
102 Supervised treatment order 94
103 Supervision of supervised treatment order 95
104 Application for review, variation or revocation 98
105 Application for determination regarding expiry of supervised
treatment order 100
106 New section 196B inserted 100
107 Senior Practitioner may make assessment order 101
108 New section 199B inserted 101
109 Apprehension of person subject to a supervised treatment
order absent without approval 101
110 Heading to Division 6 of Part 8 substituted 102
111 Purpose and application of Division 102
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Clause Page
112 Use of restrictive interventions 104
113 Authorised Program Officers 105
114 Use of restraint and seclusion 105
115 Use of restraint and seclusion must be included in treatment
plan 106
116 Reports 106
117 New section 201FA inserted 107
118 Offence 107
119 Use of other restrictive interventions 108
120 New section 201I inserted 108
121 New Division 7 of Part 8 inserted 110
122 False and misleading statements 115
123 Delegation 115
124 Evidentiary 115
125 New Division 4 of Part 10 inserted 116
Division 3--Other miscellaneous amendments 122
Subdivision 1--Residential institution amendments 122
126 Definitions 122
127 Persons with an intellectual disability 123
128 Planning for persons with an intellectual disability 123
129 Division 3 of Part 5 repealed 123
130 Visiting of residential service 123
131 Security conditions 123
132 Apprehension of resident absent without leave 123
133 Transfer of resident to another residential treatment facility or
a residential institution 123
134 Transfer of person with an intellectual disability from a prison 124
135 Preparation of treatment plan 124
136 Annual review of security order and treatment plan 124
137 Application for review of treatment plan 124
138 Sections 170 to 174 and 178 repealed 124
139 Death of security resident 124
140 Request for transfer to prison 124
141 Notice of transfer of security resident to another residential
treatment facility or residential institution 124
142 Transfer of persons detained in prison under the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997 125
143 Status of forensic residents 125
144 New section 242 inserted 125
Subdivision 2--SDA related amendments 126
145 Definitions 126
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Subdivision 3--Residential Tenancies Amendment Act 2018
related amendments 127
146 Amendments consequential on commencement of section 5 of
Residential Tenancies Amendment Act 2018 127
Part 3--Amendment of Residential Tenancies Act 1997 128
Division 1--SDA residents--tenancy agreements 128
147 New Subdivision 2A of Division 1 of Part 6 inserted 128
148 Reduced period of notice of intention to vacate in certain
circumstances 133
149 Further functions of Director in relation to SDA enrolled
dwellings 133
Division 2--Amendment of Part 12A 134
150 Definitions--Part 12A 134
151 When does Part not apply to occupation of SDA enrolled
dwelling 134
152 Division 2 heading amended 135
153 Information statement required to be given to SDA resident 135
154 New section 498DA inserted 135
155 Explaining notices or information given to SDA residents
under this Part 137
156 New section 498EA inserted 137
157 Agreement for provision of SDA enrolled dwelling 140
158 Working with SDA resident to establish an SDA residency
agreement 140
159 Copy of SDA residency agreement to be made available to
SDA resident 140
160 SDA residency agreements to be in standard form 141
161 Harsh and unconscionable terms 141
162 New Division 3A inserted in Part 12A 141
163 Duties of SDA provider 144
164 Duties of SDA resident 146
165 Application and definition 147
166 Application to Tribunal for urgent repairs 147
167 Application to Tribunal for non-urgent repairs 148
168 What can the Tribunal order? 148
169 Entry of SDA enrolled dwelling 148
170 Grounds for entry of SDA enrolled dwelling 149
171 Manner of entry 151
172 Notice of increase in rent 151
173 Limit on payment in advance 152
174 Where and how is rent to be paid? 152
175 Receipts for rent 153
176 SDA resident's goods not to be taken for rent 153
177 Certain charges prohibited 154
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178 SDA provider's liability for various utility charges 154
179 SDA provider must not seek overpayment for utility charge 155
180 Definitions--compensation and compliance 155
181 Breach of duty notice 156
182 Matters which may be considered by Tribunal 157
183 Orders of Tribunal 158
184 Notice of temporary relocation 158
185 Termination of SDA residency agreement 160
186 New section 498ZWA inserted 162
187 Notice to vacate by SDA provider 162
188 Notice of intention to vacate by SDA resident 165
189 Withdrawal of notice 166
190 New section 498ZZCA inserted 166
191 Notice to vacate by mortgagee 167
192 Application for possession order by mortgagee 167
193 Order of Tribunal 168
194 New section 498ZZHA inserted 168
195 Contents of possession order 169
196 Order not to be made in certain circumstances 169
197 Section 498ZZV substituted 170
198 Reclaiming personal documents before disposal 170
199 Disposal of certain goods left behind 170
200 Section 498ZZZD substituted 171
201 Section 498ZZZE repealed 171
202 Sections 498ZZZF and 498ZZZG substituted 172
203 Section 498ZZZH repealed 173
204 Section 498ZZZM substituted 173
205 What orders can the Tribunal make? 174
206 Offence relating to entering SDA enrolled dwelling 174
207 Offence to obtain possession etc. of SDA enrolled dwelling 174
208 New section 498ZZZPA inserted 174
209 Offence to make false representation--SDA residency
agreement 175
210 Offence to persuade person not to exercise rights or take
proceedings 176
211 Offence to aid, abet, counsel or procure commission of an
offence 177
212 Certain penalties prohibited 177
Division 3--Other miscellaneous amendments 177
213 Notice of revocation of registration or enrolment 177
214 Service of documents 178
Division 4--SDA residents--residential rental agreement 178
215 New Subdivision 3A inserted in Division 9 of Part 2 178
216 Reduced period of notice of intention to vacate in certain
circumstances 183
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217 New section 420D inserted 184
Part 4--Amendment of other Acts 185
Division 1--Amendment of Disability Service Safeguards Act 2018 185
218 Definitions 185
219 Delegation 186
220 Establishment and constitution of the Victorian Disability
Worker Commission 186
221 Repeal of section 24 186
222 Delegation 186
223 Appointment of Victorian Disability Worker Commissioner 186
224 Duties, functions and powers of the Commissioner 186
225 New section 32A inserted 187
226 Investigation of complaints by Commission 187
227 Power of Commission to conduct a Commission initiated
investigation 187
228 Grounds on which interim prohibition order may be made 188
229 Grounds on which prohibition order may be made 188
230 Registered disability worker or disability student to give Board
notice of certain events 188
231 Board may ask registered disability worker for information 189
232 Disclosure of information to other relevant entities 189
233 NDIS worker screening check clearance 189
234 Repeal of sections 300 and 301 189
235 Section 309 substituted 190
236 Statute law revision 190
Division 2--Amendment of Residential Tenancies Amendment
Act 2018 190
237 Definitions 190
238 New section 486A inserted 191
239 Repeal of sections 387 and 388 192
Division 3--Amendment of Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 192
240 Definitions 192
241 Supervision orders 192
242 Warrant to arrest person subject to custodial supervision order
who leaves Victoria 192
243 Reports on mental condition of persons declared liable to
supervision 193
244 Certificate of available services 193
245 What are the surrounds? 193
246 Transfer of persons from a participating State to Victoria 194
247 Interim disposition order 194
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Division 4--Amendment of Mental Health Act 2014 195
248 Definitions 195
249 Functions of the Commissioner 195
250 Referred complaints 195
251 New Division 2 inserted in Part 16A 196
Division 5--Amendment of other Acts 199
252 Child Wellbeing and Safety Act 2005 199
253 Children's Services Act 1996 200
254 Children, Youth and Families Act 2005 200
255 Commission for Children and Young People Act 2012 201
256 Corrections Act 1986 202
257 Crimes Act 1958 202
258 Criminal Procedure Act 2009 202
259 Family Violence Protection Act 2008 202
260 Gambling Regulation Act 2003 203
261 Guardianship and Administration Act 1986 203
262 Guardianship and Administration Act 2019 203
263 Health Complaints Act 2016 204
264 Health Records Act 2001 204
265 Independent Broad-based Anti-corruption Commission
Act 2011 204
266 Medical Treatment Planning and Decisions Act 2016 205
267 Ombudsman Act 1973 205
268 Public Administration Act 2004 205
269 Sentencing Act 1991 205
270 Serious Offenders Act 2018 206
271 Summary Offences Act 1966 206
272 Working with Children Act 2005 207
273 Victorian Civil and Administrative Tribunal Act 1998 207
274 Victorian Inspectorate Act 2011 207
275 Voluntary Assisted Dying Act 2017 207
Part 5--Repeal of this Act 209
276 Repeal of this Act 209
═════════════
Endnotes 210
1 General information 210
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Disability (National Disability Insurance
Scheme Transition) Amendment
Act 2019
No. of 2019
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The main purposes of this Act are--
(a) to amend the Disability Act 2006--
(i) to provide a process by which the use
of regulated restrictive practices is
authorised; and
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Disability (National Disability Insurance Scheme Transition) Amendment
Act 2019
No. of 2019
Part 1--Preliminary
(ii) to enable the Senior Practitioner to give
directions to registered NDIS providers;
and
(iii) to provide for the use, transfer and
disclosure of information about
registered NDIS providers and NDIS
participants; and
(iv) to streamline the process by which
disability service providers intending to
provide services under the NDIS may
be deregistered; and
(v) to provide further for the access and
inspection rights of a community visitor
in relation to NDIS dwellings; and
(vi) to repeal provisions relating to
residential institutions; and
(b) to amend the Residential Tenancies
Act 1997--
(i) to enable an SDA resident to seek relief
if the SDA resident has been coerced or
deceived into entering a tenancy
agreement; and
(ii) to make the penalty and offence
provisions in Part 12A consistent with
amendments made by the Residential
Tenancies Amendment Act 2018; and
(iii) to provide further for regulatory
oversight of SDA residency agreements
by the Director of Consumer Affairs
Victoria; and
(iv) to provide protections for persons with
complex needs who require specialist
disability accommodation, against
eviction into homelessness; and
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No. of 2019
Part 1--Preliminary
(v) to make amendments to Part 12A
generally to align further those
provisions with provisions providing
for tenancy agreements and residential
rental agreements in the Residential
Tenancies Act 1997; and
(c) to make consequential and other related
amendments to various other Acts.
2 Commencement
(1) This Part, Division 1 of Part 2, Divisions 1 and 2
of Part 4 and sections 259 and 269 come into
operation on the day after the day on which this
Act receives the Royal Assent.
(2) Section 262(1) comes into operation on the later
of--
(a) the day on which section 17(7) of the
Guardianship and Administration
Act 2019 comes into operation; or
(b) the day on which section 293 of the
Disability Service Safeguards Act 2018
comes into operation.
(3) Subject to subsection (4), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(4) If a provision of this Act does not come into
operation before 1 July 2020, it comes into
operation on that day.
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Disability (National Disability Insurance Scheme Transition) Amendment
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No. of 2019
Part 2--Amendment of the Disability
Act 2006
Part 2--Amendment of the Disability
Act 2006
Division 1--National Disability Insurance Scheme
stage 1 amendments
3 Principal Act
In this Part, the Disability Act 2006 is called the
Principal Act.
4 Definitions
(1) In section 3(1) of the Principal Act, in the
definition of Department, after "of" insert
"Health and".
(2) Section 3(2) of the Principal Act is repealed.
5 Secretary's powers in relation to land
(1) In section 10A(2) of the Principal Act, after
"Department of" insert "Health and".
(2) In section 10A(3) of the Principal Act, after
'Services"' insert 'or "Secretary to the Department
of Health and Human Services"'.
6 Committee of management
(1) In section 10B(1) of the Principal Act, after
"Department of" insert "Health and".
(2) In section 10B(2) of the Principal Act--
(a) for "Any" substitute "On and after the day
on which section 6 of the Disability
(National Disability Insurance Scheme
Transition) Amendment Act 2019 comes
into operation, any";
(b) after "Department of" insert "Health and".
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Part 2--Amendment of the Disability
Act 2006
7 Record of dealings
(1) In section 10C(1) and (3) of the Principal Act,
after "Department of" insert "Health and".
(2) In section 10C(2) of the Principal Act, after
'Services"' (where twice occurring) insert 'or
"Secretary to the Department of Health and
Human Services"'.
8 Constitution of the Disability Services Board
(1) In section 20(6) of the Principal Act, for "Each"
substitute "Subject to subsection (6A), each".
(2) After section 20(6) of the Principal Act insert--
"(6A) The term of a member's office may be
extended once for a period not exceeding
3 years.".
9 Admission to a residential treatment facility
In section 152(4)(b) of the Principal Act, after
"Justice" insert "and Community Safety".
10 Transfer of person with an intellectual disability
from a prison
(1) In section 166(1) and (8) of the Principal Act,
after "Justice" insert "and Community Safety".
(2) In section 166(3) of the Principal Act, after
"Justice" (wherever occurring) insert
"and Community Safety".
(3) In section 166(4) and (6) of the Principal Act,
after "Justice" insert "and Community Safety".
(4) In section 166(7) of the Principal Act, after
"Justice" (where twice occurring) insert
"and Community Safety".
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Part 2--Amendment of the Disability
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11 Termination of a security order
In section 175(3) of the Principal Act, after
"Justice" insert "and Community Safety".
12 Death of security resident
In section 176 of the Principal Act, after "Justice"
insert "and Community Safety".
13 Request for transfer to prison
In section 177(2) and (3) of the Principal Act,
after "Justice" insert "and Community Safety".
14 Notice of transfer of security resident to another
residential treatment facility or residential
institution
In section 179 of the Principal Act, after "Justice"
insert "and Community Safety".
15 Transfer of persons detained in prison under the
Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997
In section 180(1), (2), (3), (5), (7) and (8) of the
Principal Act, after "Justice" (wherever occurring)
insert "and Community Safety".
16 Provision of staff services
In section 205(1) of the Principal Act omit
"providing disability services".
17 Repeal of spent provisions
Sections 223, 224, 227(3), 228, 229 and 231 of the
Principal Act are repealed.
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Part 2--Amendment of the Disability
Act 2006
Division 2--National Disability Insurance Scheme
stage 2 amendments
18 Purpose
For section 1 of the Principal Act substitute--
"1 Purposes
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.".
19 Definitions
(1) In section 3(1) of the Principal Act insert the
following definitions--
"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;
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;
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Part 2--Amendment of the Disability
Act 2006
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 dwelling means--
(a) an SDA enrolled dwelling; and
(b) a short-term accommodation and
assistance dwelling;
NDIS participant's guardian means--
(a) the NDIS participant's guardian--
(i) appointed under the
Guardianship and
Administration Act 1986; 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
Act 2014;
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;
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Disability (National Disability Insurance Scheme Transition) Amendment
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No. of 2019
Part 2--Amendment of the Disability
Act 2006
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;
NDIS worker screening check means the
assessment of whether a person who
provides, or seeks to provide, services under
the NDIS poses a risk to NDIS participants;
NDIS worker screening legislation means
legislation of a State or Territory which gives
effect to the undertaking of that State or
Territory in subclause 20(a) of the
Intergovernmental Agreement on Nationally
Consistent Worker Screening for the
National Disability Insurance Scheme made
between the Commonwealth, the States, the
Australian Capital Territory and the Northern
Territory, commencing from 1 July 2018;
NDIS worker screening unit means the person or
body which is responsible for conducting
NDIS worker screening checks for a State or
Territory under its NDIS worker screening
legislation;
physical restraint has the same meaning as in the
NDIS (Restrictive Practices and Behaviour
Support) Rules;
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Part 2--Amendment of the Disability
Act 2006
registered NDIS provider has the same meaning
as in the NDIS Act;
regulated restrictive practice has the same
meaning as in the NDIS (Restrictive
Practices and Behaviour Support) Rules;
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;
SDA recipient means an NDIS participant who is
funded to reside in an SDA enrolled
dwelling;
SDA resident's guardian means--
(a) the SDA resident's guardian--
(i) appointed under the
Guardianship and
Administration Act 1986; 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;
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
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Disability (National Disability Insurance Scheme Transition) Amendment
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Part 2--Amendment of the Disability
Act 2006
(b) at which a registered NDIS provider
provides supports and living assistance
to the NDIS participant;
Supported Independent Living provider means a
registered NDIS provider that provides
supported independent living assistance;".
(2) In section 3(1) of the Principal Act--
(a) in the definition of Authorised Program
Officer, after paragraph (b) insert--
"(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;";
(b) in the definition of detain, after "Part 8,"
insert "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";
(c) for the definition of mechanical restraint
substitute--
"mechanical restraint has the same meaning
as in the NDIS (Restrictive Practices
and Behaviour Support) Rules;";
(d) in the definition of NDIA, for
"National Disability Insurance Scheme Act
2013 of the Commonwealth" substitute
"NDIS Act";
(e) for the definition of seclusion substitute--
"seclusion has the same meaning as in the
NDIS (Restrictive Practices and
Behaviour Support) Rules;";
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Part 2--Amendment of the Disability
Act 2006
(f) in the definition of treatment plan, after
"disability" insert "or an NDIS participant".
(3) In section 3(1) of the Principal Act--
(a) the definition of chemical restraint is
repealed;
(b) the definition of restraint is repealed;
(c) the definition of restrictive intervention is
repealed.
20 Objectives of Act
(1) In section 4(g) of the Principal Act, for "services."
substitute "services;".
(2) After section 4(g) of the Principal Act insert--
"(h) provide a process for authorising the proper
use of restrictive practices on NDIS
participants;
(i) provide for appropriate compulsory
treatment of NDIS participants.".
21 Principles
(1) In section 5(2)(a) of the Principal Act, for
"respect" substitute "be given respect".
(2) After section 5(3) of the Principal Act insert--
"(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
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Disability (National Disability Insurance Scheme Transition) Amendment
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Part 2--Amendment of the Disability
Act 2006
(c) does not--
(i) tolerate abuse, neglect or
exploitation of NDIS participants;
or
(ii) normalise abuse, neglect or
exploitation of NDIS
participants.".
(3) In section 5(4) of the Principal Act, after
"disability" insert "or an NDIS participant".
(4) After section 5(5) of the Principal Act insert--
"(6) 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.".
22 Provision of advice, notification or information
under this Act
(1) In section 7(1) of the Principal Act--
(a) after "a person with a disability" insert
"or an NDIS participant";
(b) after "the person with a disability" insert
"or the NDIS participant".
(2) In section 7(3) of the Principal Act--
(a) after "a person" insert "with a disability or
an NDIS participant";
(b) after "disability service provider" insert
"or an NDIS provider, as the case requires,";
(c) after "the person" (where twice occurring)
insert "with a disability or NDIS
participant".
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Disability (National Disability Insurance Scheme Transition) Amendment
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Act 2006
(3) In section 7(4) of the Principal Act--
(a) after "disability service provider"
(where first occurring) insert "or NDIS
provider, as the case requires,";
(b) in paragraph (a), after "disability" insert
"or NDIS participant";
(c) in paragraph (b), for "if" substitute "in the
case of a person with a disability, if";
(d) in paragraph (b), for "provider." substitute
"provider; or";
(e) after paragraph (b) insert--
"(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.".
23 Role and functions of the Secretary
(1) After section 8(1)(c) of the Principal Act insert--
"(ca) set requirements in relation to screening of
persons employed or engaged, or to be
employed or engaged, by disability service
providers or registered NDIS providers for
the purpose of providing services to persons
with a disability or NDIS participants, as the
case requires;".
(2) In section 8(2)(j) of the Principal Act, after
"disability" insert "and NDIS participants".
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24 Functions of the Disability Services Commissioner
At the end of section 16 of the Principal Act
insert--
"(2) 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.".
25 Powers of the Disability Services Commissioner
After section 17(1) of the Principal Act insert--
"(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.".
26 Annual report
After section 19(3) of the Principal Act insert--
"(3A) A reference to a service provider in
subsections (2) 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.".
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27 The Senior Practitioner
In section 23(2)(a) of the Principal Act, for
"restrictive interventions" (where twice occurring)
substitute "restrictive practices".
28 Functions of the Senior Practitioner
(1) In section 24(1)(a), (b) and (h) of the Principal
Act, for "restrictive interventions" substitute
"restrictive practices".
(2) In section 24(1)(c) of the Principal Act--
(a) after "disability" insert "and NDIS
participants";
(b) for "restrictive interventions" substitute
"restrictive practices".
(3) In section 24(1)(g) of the Principal Act--
(a) for "restrictive interventions" substitute
"restrictive practices";
(b) after "providers" insert "and registered
NDIS providers".
(4) For section 24(1)(d) and (e) of the Principal Act
substitute--
"(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;
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(iii) behaviour support plans;
(iv) treatment plans;".
(5) In section 24(2)(b) of the Principal Act, for
"restrictive interventions" substitute
"restrictive practices".
29 Power of Senior Practitioner to delegate
In section 25(2)(a) of the Principal Act, after
"disability" insert "and NDIS participants".
30 Special powers of the Senior Practitioner
(1) For section 27(1)(a) of the Principal Act
substitute--
"(a) in respect of the use of restrictive practices
or compulsory treatment by a disability
service provider or a registered NDIS
provider; or".
(2) In section 27(1)(b) of the Principal Act--
(a) for "restrictive interventions" substitute
"restrictive practices";
(b) after "service" insert "or a service provided
by a registered NDIS provider".
(3) In section 27(2) of the Principal Act--
(a) in paragraph (a), before "visit" insert "in the
case of a disability service provider,";
(b) after paragraph (a) insert--
"(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;";
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(c) in paragraph (b)--
(i) after "(a)" insert "or (ab)";
(ii) for "restrictive intervention" substitute
"restrictive practice";
(d) in paragraph (c), for
"restrictive interventions" substitute
"restrictive practices";
(e) in paragraphs (d) and (e), for
"restrictive intervention" substitute
"restrictive practice";
(f) for paragraph (f) substitute--
"(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) in paragraph (g)--
(i) after "provider" insert "or registered
NDIS provider";
(ii) for "restrictive intervention" substitute
"restrictive practice".
(4) In section 27(5) of the Principal Act, after
"disability" insert "or the NDIS participant, as the
case requires,".
(5) After section 27(5) of the Principal Act insert--
"(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.
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(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.".
(6) For section 27(6) of the Principal Act
substitute--
"(6) 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;
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(d) a member of the staff or management
of a registered NDIS provider.".
(7) In section 27(7) of the Principal Act, for
"A disability service provider or member of the
staff or management of a disability service
provider" substitute "A person referred to in
subsection (6)".
31 Functions of a community visitor
(1) In the heading to section 30 of the Principal Act,
after "visitor" insert "in respect of premises
where residential services are provided".
(2) In section 30(f) of the Principal Act, for
"restrictive interventions" substitute
"restrictive practices".
32 New section 30A inserted
After section 30 of the Principal Act insert--
"30A Functions of a community visitor in
respect of NDIS dwellings
(1) 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
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(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.
(2) 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
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(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.
(3) Subject to subsection (4), the functions of a
community visitor in respect of an SDA
enrolled dwelling let under a tenancy
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
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(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.
(4) 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)--
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(a) an SDA resident living in the SDA
enrolled dwelling under a tenancy
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 tenancy agreement (within the
meaning of the Residential Tenancies
Act 1997) with the SDA resident's
consent.".
33 Matter may be referred
In section 33 of the Principal Act--
(a) in paragraph (d), for "Ombudsman."
substitute "Ombudsman;";
(b) after paragraph (d) insert--
"(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.".
34 Reports by community visitors and secrecy
provision
(1) In section 34(1) of the Principal Act, after
"premises" insert "or NDIS dwellings".
(2) In section 36(2)(a) of the Principal Act, after
"this Act" insert "or the Residential Tenancies
Act 1997".
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35 Information systems and disclosure, use and
transfer of information
(1) For section 39(2)(b) of the Principal Act
substitute--
"(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;".
(2) In section 39(3) of the Principal Act--
(a) after "A person" insert "or body";
(b) for "any person any" substitute "any other
person or body any";
(c) for "in his or her" substitute "or body in
their".
(3) After section 39(3) of the Principal Act insert--
"(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.".
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(4) In section 39(4) of the Principal Act--
(a) in paragraph (d)--
(i) after "another person" insert "or body";
(ii) after "other person" insert "or body";
(b) in paragraph (e), after "any person" insert
"or body";
(c) in paragraph (l), after "person" insert
"or body";
(d) in paragraph (m), for "National Disability
Insurance Scheme, within the meaning of the
National Disability Insurance Scheme Act
2013 of the Commonwealth" substitute
"NDIS";
(e) for paragraph (n) substitute--
"(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.".
(5) For section 39(6) of the Principal Act
substitute--
"(6) 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
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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;
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(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.".
(6) In section 39(9) of the Principal Act, after
"Subsections" insert "(3A),".
36 New section 39A inserted
After section 39 of the Principal Act insert--
"39A Disclosure of information about worker
screening
(1) 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 of Victoria within the meaning
of the Disability Service Safeguards
Act 2018;
(c) the Victorian Disability Worker
Commission within the meaning of the
Disability Service Safeguards
Act 2018;
(d) an NDIS worker screening unit;
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(e) the Secretary to the Department of
Justice and Community Safety, for the
purpose of assessing or re-assessing an
application for a working with children
check within the meaning of the
Working with Children Act 2005;
(f) the relevant disability service provider;
(g) the relevant registered NDIS provider.
(2) For the purposes of subsection (1)--
information about worker screening means
one or more of the following--
(a) whether or not the person has been
assessed by an NDIS worker
screening unit and--
(i) has been issued an exclusion
by an NDIS worker
screening unit; or
(ii) has had a clearance
suspended or revoked by an
NDIS worker screening unit;
or
(iii) is the subject of an interim
bar in relation to an NDIS
worker screening check; or
(b) whether or not the person is the
subject of a banning order made
under section 73ZN of the NDIS
Act or 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;
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(c) whether or not a complaint or
notification has been made under
the Disability Service
Safeguards Act 2018 about the
person and, if so, the details of the
complaint or notification and any
action taken in relation to that
complaint or notification under
Part 8 or 9 of that Act;
(d) whether or not the person has
committed a prescribed offence
within the meaning of the
Disability Service Safeguards
Act 2018;
(e) 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;
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(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.".
37 Registration
In section 41(2) of the Principal Act--
(a) after "impose" insert "at any time";
(b) after "provider" insert "and may vary at any
time any condition or restriction so imposed
or impose a new condition or restriction".
38 Revocation of registration
For section 43(1) of the Principal Act
substitute--
"(1) 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
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(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.".
39 Section 44 substituted
For section 44 of the Principal Act substitute--
"44 Notice before refusal or revocation
(1) 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.
(2) 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--
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(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.
(3) 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.".
40 Application for review
In section 45(1)(c) of the Principal Act, for
"section 43(1)" substitute "section 43(1)(c)".
41 Certain persons or bodies deemed or may be
deemed to be registered as disability service
providers
(1) For the heading to section 48 of the Principal Act
substitute--
"Certain persons or bodies deemed to be
registered or may be registered as disability
service providers".
(2) In section 48(2) of the Principal Act, for "until"
substitute "irrespective of whether or not".
(3) For section 48(3) of the Principal Act
substitute--
"(3) Despite anything to the contrary in
section 41(1) and subject to subsection (4),
the Secretary may register as a disability
service provider--
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(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).
(4) 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.
(5) 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.
(6) 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.".
42 New section 48A inserted
After section 48 of the Principal Act insert--
"48A Secretary may exempt disability service
providers from requirements
(1) 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.
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(2) 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.".
43 New section 103A inserted
After the heading to Division 5 of Part 6 of the
Principal Act insert--
"103A Application of Division and references
(1) 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
24 month period immediately before
the lapse or revocation of its
registration.
(2) 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.".
44 New section 106AA inserted
After the heading to Division 5A of Part 6 of the
Principal Act insert--
"106AA Application of Division and references
(1) This Division applies to--
(a) a regulated service provider; and
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(b) a former regulated service provider in
relation to any matter that occurred, or
is alleged to have occurred, during the
24 month period immediately before it
ceased to be a regulated service
provider.
(2) 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.".
45 Application of Division 6 of Part 6
At the end of section 108 of the Principal Act
insert--
"(2) 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
24 month period immediately before
the lapse or revocation of its
registration; and
(d) a former regulated service provider in
relation to any matter that occurred, or
is alleged to have occurred, during the
24 month period immediately before it
ceased to be a regulated service
provider.".
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46 References to service provider
At the end of section 108A of the Principal Act
insert--
"(2) 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.".
47 What matters can be the subject of a complaint?
In section 109(1) of the Principal Act--
(a) in paragraph (a), after "regulated disability
services" insert "by a service provider";
(b) in paragraph (b), for "disability service
provider or a regulated service provider"
substitute "service provider".
48 New section 127 inserted
After the heading to Subdivision 1 of Division 6A
of Part 6 of the Principal Act insert--
"127 Application of Division and references
(1) 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--
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(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).
(2) 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.
(3) 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.".
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49 Commissioner initiated investigations
(1) For section 128B(1)(a) of the Principal Act
substitute--
"(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".
(2) In section 128B(1)(b)(i) of the Principal Act, after
"service" insert "by a disability service provider
or former disability service provider".
(3) In section 128B(1)(b)(ii) of the Principal Act,
after "service" insert "by a regulated service
provider or former regulated service provider".
50 New section 128GA inserted
After the heading to Subdivision 1 of Division 6B
of Part 6 of the Principal Act insert--
"128GA Application of Division and references
(1) 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
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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.
(2) 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.
(3) 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.".
51 Referral investigations
For section 128I(2) of the Principal Act
substitute--
"(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
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(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.".
52 New section 128NA inserted
After the heading to Subdivision 1 of Division 6C
of Part 6 of the Principal Act insert--
"128NA Application of Division and references
(1) 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--
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(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.
(2) 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.
(3) 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.".
53 Visiting of residential service
(1) In the heading to section 129 of the Principal Act,
after "service" insert "or NDIS dwelling".
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(2) After section 129(1) of the Principal Act insert--
"(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.".
(3) After section 129(3) of the Principal Act insert--
"(4) 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.
(5) The Minister may direct a community visitor
to visit a short-term accommodation and
assistance dwelling at the times that the
Minister directs.
(6) Except in accordance with section 131A, a
community visitor must not visit an SDA
enrolled dwelling provided to an SDA
resident under a tenancy agreement (within
the meaning of the Residential Tenancies
Act 1997).".
54 Powers of inspection
For section 130(2) and (3) of the Principal Act
substitute--
"(2) 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;
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(b) a short-term accommodation and
assistance dwelling.
(3) 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).".
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55 New section 130A inserted
After section 130 of the Principal Act insert--
"130A Obligations of service provider and staff
(1) 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.
(2) 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.".
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56 Request to see a community visitor
In the heading to section 131 of the Principal Act,
for "visitor" substitute "visitor--resident in
residential service".
57 New section 131A inserted
After section 131 of the Principal Act insert--
"131A Request to see a community visitor--
NDIS residents in NDIS dwelling
(1) 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.
(2) A person must not make a request under
subsection (1) on behalf of an NDIS resident
living in an SDA enrolled dwelling under a
tenancy 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.
(3) 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.
(4) 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).
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(5) 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.
(6) 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.
(7) 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.".
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58 Record of visits
(1) In section 132 of the Principal Act omit "in the
prescribed form".
(2) At the end of section 132 of the Principal Act
insert--
"(2) 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.
(3) 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.".
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59 New section 132AA inserted
After the heading to Subdivision 1 of Division 8
of Part 6 of the Principal Act insert--
"132AA Application of Division and references
(1) 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.
(2) 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 2 or more service
providers unless the accountability
investigation commenced before each
service provider ceased to be a disability
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service provider or regulated service
provider, as the case requires.
(3) 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.".
60 Visit and inspection of premises
In section 132E(1) of the Principal Act, after
"provides" insert ", or provided,".
61 Powers during visit and inspection
In section 132F(1)(a) of the Principal Act, after
"receiving" insert ", or has received,".
62 Assistance to be provided
In section 132M of the Principal Act, after
"providing" insert ", or did provide,".
63 New section 132ZCA inserted
After the heading to Division 9 of Part 6 of the
Principal Act insert--
"132ZCA Application of Division and references
(1) 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--
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(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.
(2) 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.
(3) 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.".
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64 New Parts 6A and 6B inserted
After section 132ZH of the Principal Act insert--
"Part 6A--Appointment of
Authorised Program Officers by
registered NDIS providers
132ZI Registered NDIS provider to appoint
Authorised Program Officer
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.
132ZJ Registered NDIS provider to seek
approval from Senior Practitioner for
appointment of Authorised Program
Officer
(1) A registered NDIS provider who proposes to
appoint an Authorised Program Officer must
apply to the Senior Practitioner for approval
of the proposed appointment.
(2) 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.
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(3) The Senior Practitioner may approve the
appointment of one or more Authorised
Program Officers subject to any conditions
that the Senior Practitioner considers
appropriate.
(4) The Senior Practitioner must keep a register
of the name and qualifications of each
Authorised Program Officer appointed under
this Part.
132ZK Revocation of approval
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.
132ZL Senior Practitioner to notify NDIS
Commissioner
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.
132ZM Senior Practitioner to notify registered
NDIS provider before refusal or revocation
(1) 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.
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(2) 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.
132ZN Application for review of appointment
decision
(1) 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.
(2) 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.
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132ZO Senior Practitioner may issue directions
(1) 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.
(2) A direction issued by the Senior Practitioner
under this section must be published on the
Department's internet site.
Part 6B--Use of restrictive
practices by registered NDIS
providers
132ZP Purpose and application of Part
(1) 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.
Note
Division 6 of Part 8 also contains protective
provisions in relation to an NDIS participant subject
to a supervised treatment order obtained by an
Authorised Program Officer for a disability service
provider or registered NDIS provider.
Division 7 of Part 8 contains protective provisions in
relation to an NDIS participant subject to a supervised
treatment order obtained by an Authorised Program
Officer for a registered NDIS provider.
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(2) 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.
132ZQ Use of regulated restrictive practice only
permitted after authorisation and
approval given
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
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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.
132ZR Authorisation for use of regulated
restrictive practices on NDIS participants
with NDIS behaviour support plans
(1) 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
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(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.
(2) An authorisation given under this section is
in force until--
(a) the authorisation is revoked; or
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(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.
(3) 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.
132ZS Independent person
(1) 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.
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Note
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.
(2) 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.
(3) 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.
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(4) 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.
(5) 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.
(6) 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.
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132ZT Powers of Public Advocate
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.
132ZU Information to be provided to Senior
Practitioner and NDIS participant
(1) 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;
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(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.
(2) A registered NDIS provider must give an
NDIS participant a notice in accordance with
subsection (3) at least 2 working days before
the use of the relevant regulated restrictive
practice on the NDIS participant.
(3) 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
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the use of regulated restrictive
practices under section 132ZV.
132ZV Approval given by Senior Practitioner
(1) 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.
(2) 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;
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(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.
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(3) 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.
(4) 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.
132ZW Review by VCAT
(1) 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.
(2) 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
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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.
(3) 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.
(4) On an application under this section, VCAT
must determine the review having regard to
the requirements of this Part.
(5) 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.
(6) 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
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(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.
(7) 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.
132ZX Authorisation for use of regulated
restrictive practices on NDIS participants
in emergencies
(1) 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
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(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.
(2) 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.
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(3) 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.
132ZY Directions and other requirements of
Senior Practitioner
(1) 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.
(2) 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;
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(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.
(3) 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.".
65 Part 7 heading substituted
For the heading to Part 7 of the Principal Act
substitute--
"Part 7--Use of restrictive
practices by disability service
providers".
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66 Purpose and application of Part
(1) For section 133(1) of the Principal Act
substitute--
"(1) 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.".
(2) In section 133(2) of the Principal Act, for
"restrictive interventions" substitute
"restrictive practices".
(3) After section 133(2) of the Principal Act insert--
"(3) 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.".
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67 Section 134 amended
(1) For the heading to section 134 of the Principal Act
substitute--
"Use of restrictive practice only permitted after
approval given".
(2) In section 134 of the Principal Act, for
"intervention" substitute "practice".
68 Approval to use restrictive interventions
(1) In the heading to section 135 of the Principal Act,
for "restrictive interventions" substitute
"restrictive practices".
(2) In section 135(1) and (4)(a) of the Principal Act,
for "restrictive interventions" substitute
"restrictive practices".
(3) After section 135(5) of the Principal Act insert--
"(6) 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.
(7) A direction issued by the Senior Practitioner
under this section must be published on the
Department's internet site.".
69 Revocation of approval
In section 136(1) of the Principal Act, for
"restrictive interventions" substitute
"restrictive practices".
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70 Notice before refusal or revocation
In section 137(1) of the Principal Act, for
"restrictive interventions" substitute
"restrictive practices".
71 Application for review
In section 138(1)(b) of the Principal Act, for
"restrictive interventions" substitute
"restrictive practices".
72 Authorised Program Officers
In section 139(1) of the Principal Act, for
"restrictive intervention" substitute
"restrictive practice".
73 New section 139A inserted
After section 139 of the Principal Act insert--
"139A Use of regulated restrictive practice
permitted in certain circumstances
(1) 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.
Note
Sections 134 and 135(1) apply in relation to a
disability service provider using a regulated restrictive
practice under subsection (1).
(2) A disability service provider who uses
regulated restrictive practices on a person
under subsection (1) must within 7 days after
the end of an interval specified by the Senior
Practitioner provide a report to the Senior
Practitioner that records--
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(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.
(3) The Senior Practitioner may issue directions
to disability service providers to whom
subsection (1) applies in relation to the use
of regulated restrictive practices under that
subsection.".
74 Use of restraint and seclusion
(1) In the heading to section 140 of the Principal Act,
for "restraint and seclusion" substitute
"regulated restrictive practices".
(2) In section 140 of the Principal Act, for
"Unless section 147 applies, restraint or seclusion
can only be used on a person to whom this Part
applies" substitute "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".
(3) In section 140(a), (b), (c) and (e) of the Principal
Act omit "if".
(4) In section 140(a), (b) and (c) of the Principal Act,
for "restraint or seclusion" substitute "a regulated
restrictive practice".
(5) In section 140(c)(iii)(B) of the Principal Act, for
"the seclusion or restraint" substitute
"the regulated restrictive practice".
75 Use of restraint and seclusion must be included in
behaviour support plan
(1) In the heading to section 141 of the Principal Act,
for "restraint and seclusion" substitute
"regulated restrictive practice".
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(2) In section 141(1)(b) and (2)(a), (b) and (c) of the
Principal Act, for "restraint or seclusion"
substitute "a regulated restrictive practice".
(3) After section 141(3)(c) of the Principal Act
insert--
"(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;".
76 Review of behaviour support plan by disability
service provider
After section 142(3)(c) of the Principal Act
insert--
"(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;".
77 Independent person
(1) In section 143(1)(a) of the Principal Act, for
"restraint or seclusion" substitute "a regulated
restrictive practice".
(2) For section 143(1)(b) of the Principal Act
substitute--
"(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
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(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.".
(3) In section 143(1A)(b) of the Principal Act--
(a) for "of restraint or seclusion" substitute
"of a regulated restrictive practice";
(b) for "the restraint or seclusion" substitute
"the regulated restrictive practice".
(4) In section 143(1B)(a) and (2)(a) of the Principal
Act, for "restraint or seclusion" substitute
"a regulated restrictive practice".
(5) For section 143(3) of the Principal Act
substitute--
"(3) 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.".
78 Powers of Public Advocate
In section 144(1)(b) of the Principal Act, for
"restraint or seclusion" substitute "a regulated
restrictive practice".
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79 Requirements for the use of restraint and seclusion
(1) In the heading to section 145 of the Principal Act,
for "restraint and seclusion" substitute
"any regulated restrictive practice".
(2) For section 145(1) of the Principal Act
substitute--
"(1) 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.".
(3) In section 145(2), (3)(a) and (4) of the Principal
Act, for "restraint or seclusion" substitute
"regulated restrictive practices".
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(4) In section 145(3) of the Principal Act--
(a) for "restraint or seclusion in the behaviour
support plan under subsection (1), the
disability service provider must at least
2 days before the proposed use of restraint or
seclusion" substitute "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";
(b) in paragraph (a), after "plan" insert "and, as
the case requires, the Senior Practitioner has
given approval under section 145A";
(c) for paragraph (b) substitute--
"(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.".
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80 New section 145A inserted
After section 145 of the Principal Act insert--
"145A Approval to use certain regulated
restrictive practices
(1) 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.
(2) 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
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(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.".
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81 Review by VCAT
(1) For section 146(1) of the Principal Act
substitute--
"(1) 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.".
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(2) For section 146(3) of the Principal Act
substitute--
"(3) 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.
(4) 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.
(5) 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
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(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.".
82 Use of restraint or seclusion in an emergency
(1) In the heading to section 147 of the Principal Act,
for "restraint or seclusion" substitute
"regulated restrictive practices".
(2) In section 147(1)(b)(ii), (2) and (3) of the
Principal Act, for "restraint or seclusion"
(wherever occurring) substitute
"regulated restrictive practices".
(3) For section 147(1)(a) of the Principal Act
substitute--
"(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".
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(4) For section 147(4)(a) of the Principal Act
substitute--
"(a) the form of the regulated restrictive practice
used and, if seclusion was used, the period of
time during which it was used;".
(5) In section 147(4)(b) and (d) of the Principal Act,
for "restraint or seclusion" substitute
"the regulated restrictive practice".
(6) For section 147(4)(e) of the Principal Act
substitute--
"(e) the name of the person who applied the
regulated restrictive practice or, if seclusion
was used, kept the person in seclusion.".
83 New section 147A inserted
After section 147 of the Principal Act insert--
"147A Senior Practitioner may issue directions
(1) 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.
(2) 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;
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(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.".
84 Reports
(1) In section 148(1)(a) and (b) of the Principal Act,
for "restraint or seclusion" substitute
"regulated restrictive practice".
(2) In section 148(2)(c) of the Principal Act, for
"restraint or seclusion has" substitute
"regulated restrictive practices have".
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(3) In section 148(2)(e) and (3) of the Principal Act,
for "restraint or seclusion" substitute
"regulated restrictive practices".
85 Section 149 substituted
For section 149 of the Principal Act substitute--
"149 Offence
(1) 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.
(2) 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.".
86 Use of other restrictive interventions
(1) In the heading to section 150 of the Principal Act,
for "restrictive interventions" substitute
"restrictive practices".
(2) For section 150(1) the Principal Act substitute--
"(1) In this section--
other restrictive practices means restrictive
practices other than regulated restrictive
practices.".
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(3) In section 150(2) of the Principal Act, for
"in respect of other restrictive interventions"
substitute "in respect of other restrictive
practices".
(4) In section 150(2)(a), (b)(ii), (d) and (f) of the
Principal Act, for "other restrictive interventions"
substitute "other restrictive practices".
(5) In section 150(2)(c) of the Principal Act, for
"use of other restrictive interventions" substitute
"prohibition or use of other restrictive practices".
(6) In section 150(2)(e)(i) and (ii) of the Principal
Act, for "other restrictive intervention" substitute
"other restrictive practice".
87 Authorised Program Officer must prepare
treatment plan
(1) In section 153(2)(c) of the Principal Act, for
"restrictive interventions" (where first occurring)
substitute "restrictive practices".
(2) In the note at the foot of section 153(2)(c) of the
Principal Act, for "restrictive interventions"
(where twice occurring) substitute
"restrictive practices".
88 Preparation of treatment plan
(1) In section 167(1A)(c) of the Principal Act, for
"restrictive interventions" substitute
"restrictive practices".
(2) In the note at the foot of section 167(1A)(c) of the
Principal Act, for "restrictive interventions"
(where twice occurring) substitute
"restrictive practices".
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89 Transfer of persons detained in prison under the
Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997
In the note at the foot of section 180(6) of the
Principal Act, for "restrictive interventions"
(where twice occurring) substitute
"restrictive practices".
90 Heading to Division 5 of Part 8 amended
In the heading to Division 5 of Part 8 of the
Principal Act, after "orders" insert
"for implementation by disability service
providers or registered NDIS providers".
91 Purpose of Division
In section 183 of the Principal Act, after
"detention" insert "by a disability service provider
or a registered NDIS provider".
92 New section 184 inserted
After section 183 of the Principal Act insert--
"184 Certain disability service providers not
required to comply with Division
(1) 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.
(2) 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
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Division in relation to that person in the
person's capacity as an NDIS participant.
Note
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).".
93 Heading to section 185 amended
In the heading to section 185 of the Principal Act,
after "treatment" insert "by a disability service
provider".
94 Approval to use supervised treatment
(1) In the heading to section 186 of the Principal Act,
after "Approval" insert "for disability service
provider".
(2) After section 186(5) of the Principal Act insert--
"(6) 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.
(7) A direction issued by the Senior Practitioner
under this section must be published on the
Department's internet site.".
95 Heading to section 187 amended
In the heading to section 187 of the Principal Act,
after "approval" insert "for disability service
provider to use supervised treatment".
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96 Heading to section 188 amended
In the heading to section 188 of the Principal Act,
after "revocation" insert "of approval for
disability service provider to use supervised
treatment".
97 Heading to section 189 amended
In the heading to section 189 of the Principal Act,
after "Application" insert "by disability service
provider".
98 Heading to section 190 amended
In the heading to section 190 of the Principal Act,
after "Officers" insert "appointed by disability
service provider".
99 New section 190A inserted
After section 190 of the Principal Act insert--
"190A Authorised Program Officers appointed
by registered NDIS provider
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.".
100 Application for a supervised treatment order
(1) In the heading to section 191 of the Principal Act,
after "Application" insert "by a disability
service provider or registered NDIS provider".
(2) In section 191(1) of the Principal Act, after
"Officer" insert "appointed under this Part by a
disability service provider".
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(3) After section 191(1) of the Principal Act insert--
"(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).".
(4) In section 191(2) of the Principal Act--
(a) after "Officer" insert "(appointed by either a
disability service provider or an NDIS
provider)";
(b) after "subsection (1)" insert "or (1A)";
(c) in paragraph (b), after "services" insert
"or, in the case of an NDIS participant, is an
SDA resident living in an SDA enrolled
dwelling provided under an SDA residency
agreement".
(5) In section 191(3) of the Principal Act--
(a) after "subsection (1)" insert "or (1A)";
(b) in paragraph (b), after "services" insert
"or, in the case of an NDIS participant, is an
SDA resident living in an SDA enrolled
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dwelling provided under an SDA residency
agreement";
(c) in paragraph (c), after "Practitioner" insert
"and an NDIS behaviour support plan, as the
case requires".
(6) In section 191(4) of the Principal Act--
(a) after "Officer" insert "(appointed by either a
disability service provider or a registered
NDIS provider)";
(b) after "subsection (1)" insert "or (1A)";
(c) in paragraph (b) omit "with a disability".
(7) After section 191(4) of the Principal Act insert--
"(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.".
(8) In section 191(5) of the Principal Act, after
"subsection (1)" insert "or (1A)".
(9) In section 191(6)(c), (d) and (e) of the Principal
Act, after "treatment plan" insert "and an NDIS
behaviour support plan, as the case requires,".
(10) For section 191(7)(c) of the Principal Act
substitute--
"(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;
Note
Division 6 of this Part contains provisions in relation
to the use of restrictive practices in accordance with,
and the inclusion of restrictive practices in, a
treatment plan.".
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(11) After section 191(7)(c) of the Principal Act
insert--
"(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;
Note
Division 7 of this Part contains provisions in relation
to the use of regulated restrictive practices by
registered NDIS providers on an NDIS participant
who is subject to a supervised treatment order
obtained by an Authorised Program Officer for a
registered NDIS provider.".
101 Heading to section 192 substituted
For the heading to section 192 of the Principal Act
substitute--
"Disability service provider or registered NDIS
provider may request interim supervised
treatment order".
102 Supervised treatment order
(1) In the heading to section 193 of the Principal Act,
after "order" insert "for persons with a
disability and NDIS participants".
(2) In section 193(1) of the Principal Act--
(a) in paragraph (a), after "section 191(1)"
insert "or (1A)";
(b) in paragraph (b)--
(i) after "subsection (2)" insert "or (2A)";
(ii) after "section 191(1)" insert "or (1A)";
(c) in paragraph (c), after "section 191(1)"
insert "or (1A)".
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(3) In section 193(2) of the Principal Act, after
"provider" insert "or registered NDIS provider, as
the case requires,".
(4) After section 193(2) of the Principal Act insert--
"(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.".
(5) For section 193(3)(b) of the Principal Act
substitute--
"(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;".
103 Supervision of supervised treatment order
(1) In section 195(3) of the Principal Act, after
"subsection (4)" insert "or (5A)".
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(2) For section 195(4) and (5) of the Principal Act
substitute--
"(4) 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.
(5) 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
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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
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(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.".
104 Application for review, variation or revocation
(1) In section 196(1)(b) of the Principal Act, after
"application" insert "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".
(2) In section 196(5)(a) and (b) and (8)(a) and (b) of
the Principal Act, after "section 191(1)" insert
"or (1A), as the case requires,".
(3) In section 196(5)(a)(ii) of the Principal Act, after
"appropriate" insert "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".
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(4) For section 196(7) of the Principal Act
substitute--
"(7) 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.".
(5) For section 196(9) of the Principal Act
substitute--
"(9) 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
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would not result in the NDIS
participant's NDIS behaviour support
plan being unable to be implemented.".
105 Application for determination regarding expiry of
supervised treatment order
(1) In section 196A(2)(b) of the Principal Act omit
"with a disability".
(2) In section 196A(3) of the Principal Act, after
"section 191(1)" (wherever occurring) insert
"or (1A), as the case requires,".
106 New section 196B inserted
After section 196A of the Principal Act insert--
"196B Senior Practitioner to notify NDIS
Commissioner about certain matters
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;
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(d) the supervised treatment order is varied
or revoked under section 196 or
expires.".
107 Senior Practitioner may make assessment order
In section 199(2)(b) of the Principal Act, after
"services" insert "or is an SDA resident living in
an SDA enrolled dwelling provided under an SDA
residency agreement".
108 New section 199B inserted
After section 199A of the Principal Act insert--
"199B Senior Practitioner to notify NDIS
Commissioner about assessment orders
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.".
109 Apprehension of person subject to a supervised
treatment order absent without approval
(1) In section 201(1) of the Principal Act--
(a) after "residential service" (where first
occurring) insert "or the SDA enrolled
dwelling (if provided under an SDA
residency agreement), as the case requires,";
(b) after "residential service" (where secondly
and fifthly occurring) insert "or the SDA
enrolled dwelling";
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(c) after paragraph (a) insert--
"(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".
(2) In section 201(2) of the Principal Act, after
"residential service" insert "or the SDA enrolled
dwelling, as the case requires,".
110 Heading to Division 6 of Part 8 substituted
For the heading to Division 6 of Part 8 of the
Principal Act substitute--
"Division 6--Restrictive practices used
by disability service providers
implementing treatment plans".
111 Purpose and application of Division
(1) For section 201A(1) of the Principal Act
substitute--
"(1) 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
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(b) NDIS participants who are subject to a
supervised treatment order and on
whom a disability service provider
intends using restrictive practices.".
(2) In section 201A(2) of the Principal Act, for
"restrictive interventions" substitute
"restrictive practices".
(3) In the note at the foot of section 201A(2) of the
Principal Act, before "Part 7" insert "Part 6B
contains corresponding protective provisions in
relation to NDIS participants.".
(4) After section 201A(2) of the Principal Act
insert--
"(3) 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.
Note
See also sections 136, 137 and 138 in relation to an
approval granted to a disability service provider to use
restrictive practices.
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(4) 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.".
112 Use of restrictive interventions
(1) In the heading to section 201B of the Principal
Act, for "restrictive interventions" substitute
"restrictive practices".
(2) In section 201B of the Principal Act, for
"restrictive intervention"(where twice occurring)
substitute "restrictive practice".
(3) At the end of section 201B of the Principal Act
insert--
"(2) 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.
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Note
See also sections 136, 137 and 138 in relation to an
approval granted to a disability service provider to use
restrictive practices.
(3) A disability service provider who uses
regulated restrictive practices on a person
under subsection (2) 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.
(4) The Senior Practitioner may issue directions
to disability service providers to whom
subsection (2) applies in relation to the use
of regulated restrictive practices under that
subsection.".
113 Authorised Program Officers
In section 201C(1) of the Principal Act, for
"restrictive intervention" substitute
"restrictive practice".
114 Use of restraint and seclusion
(1) In the heading to section 201D of the Principal
Act, for "restraint and seclusion" substitute
"regulated restrictive practices".
(2) In section 201D of the Principal Act, for
"Restraint or seclusion can only be used on a
person to whom this Division applies" substitute
"Regulated restrictive practices must not be used
by a disability service provider on a person to
whom this Division applies unless".
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(3) In section 201D(a) and (b) of the Principal Act,
for "restraint or seclusion" substitute
"regulated restrictive practices".
(4) In section 201D(c) of the Principal Act, for
"restraint or seclusion" substitute "the regulated
restrictive practice".
(5) In section 201D(c)(iii)(B) of the Principal Act, for
"seclusion or restraint" substitute "regulated
restrictive practice".
(6) In section 201D(a), (b), (c) and (e) of the Principal
Act omit "if".
115 Use of restraint and seclusion must be included in
treatment plan
(1) In the heading to section 201E of the Principal
Act, for "restraint and seclusion" substitute
"regulated restrictive practices".
(2) In section 201E(1)(b), (2)(a), (b) and (c) of the
Principal Act, for "restraint or seclusion"
substitute "the regulated restrictive practice".
(3) After section 201E(3)(c) of the Principal Act
insert--
"(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;".
116 Reports
(1) In section 201F(1)(a) and 2(c) and (d) of the
Principal Act, for "restraint or seclusion"
substitute "regulated restrictive practices".
(2) In section 201F(1)(a) of the Principal Act, for
"Part" substitute "Division".
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(3) In section 201F(1)(b) of the Principal Act, for
"restraint and seclusion" substitute
"regulated restrictive practices".
(4) In section 201F(2)(b) of the Principal Act, for
"restraint or seclusion has been" substitute
"regulated restrictive practices were".
(5) In section 201F(3) of the Principal Act, for
"restraint or seclusion" substitute "a regulated
restrictive practice".
117 New section 201FA inserted
After section 201F of the Principal Act insert--
"201FA Senior Practitioner may issue guidelines
and directions
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.".
118 Offence
In section 201G of the Principal Act, for
"person who, except as provided in section 201D,
applies restraint or seclusion" substitute
"disability service provider who, except as
provided in section 201A(3) and (4), 201B
or 201D, applies a regulated restrictive practice".
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119 Use of other restrictive interventions
(1) In the heading to section 201H of the Principal
Act, for "restrictive interventions" substitute
"regulated restrictive practices".
(2) For section 201H(1) of the Principal Act
substitute--
"(1) In this section--
other restrictive practices means restrictive
practices other than regulated restrictive
practices.".
(3) In section 201H(2) of the Principal Act, for
"in respect of other restrictive interventions"
substitute "in respect of other restrictive
practices".
(4) In section 201H(2)(a), (c) and (e) of the Principal
Act, for "restrictive interventions" substitute
"restrictive practices".
(5) In section 201H(2)(b) of the Principal Act, for
"use of other restrictive interventions" substitute
"prohibition or use of other restrictive practices".
(6) In section 201H(2)(d)(i) and (ii) of the Principal
Act, for "restrictive intervention" substitute
"restrictive practice".
120 New section 201I inserted
After section 201H of the Principal Act insert--
"201I Senior Practitioner may issue directions
(1) 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;
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(c) disability service providers belonging
to a specified class of disability service
providers.
(2) 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.".
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121 New Division 7 of Part 8 inserted
After Division 6 of Part 8 of the Principal Act
insert--
"Division 7--Restrictive practices used
by registered NDIS providers on NDIS
participants subject to supervised
treatment orders
201J Purpose and application of Division
(1) 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.
Note
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.
(2) 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.
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201K Use of restrictive practices only permitted
in certain circumstances
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.
201L Use of regulated restrictive practice only
permitted in certain circumstances
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;
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(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
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be implemented in accordance with
those Rules and this Act.
201M Authorised Program Officers
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.
201N Senior Practitioner may lodge evidence
regarding use of regulated restrictive
practices
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
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restrictive practices on an NDIS participant
is authorised under this Division.
201O Senior Practitioner may issue directions
(1) 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.
(2) 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;
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(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.".
122 False and misleading statements
For section 202(2) of the Principal Act
substitute--
"(2) 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.".
123 Delegation
In section 204(2) of the Principal Act, after
"disability" insert "or NDIS participants".
124 Evidentiary
In section 219(2) of the Principal Act, for "or the
Secretary" (where twice occurring) substitute
", the Secretary or the Senior Practitioner".
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125 New Division 4 of Part 10 inserted
After Division 3 of Part 10 of the Principal Act
insert--
"Division 4--Transitional provisions--
Disability (National Disability Insurance
Scheme Transition) Amendment
Act 2019
236 Declaration of residential service as a
group home
(1) 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 tenancy
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
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(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).
(2) 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.
(3) 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.
(4) 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.
237 Behaviour support plans taken to be NDIS
behaviour support plans
(1) If immediately before the day a person
becomes an NDIS participant the person has
a behaviour support plan, on and from that
day--
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(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.
(2) 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.
238 Matters concerning persons subject to
supervised treatment orders on becoming
NDIS participants
(1) 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--
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(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.
Note
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.
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(2) 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.
239 Supervised treatment orders
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.
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240 Assessment orders
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.
241 Regulations dealing with transitional
matters
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of
an application or savings nature, arising as a
result of the enactment of the Disability
(National Disability Insurance Scheme
Transition) Amendment Act 2019,
including repeals and amendments made by
that Act.
(2) Regulations made under this section may--
(a) have a retrospective effect to a day
on or from the date that the Disability
(National Disability Insurance
Scheme Transition) Amendment
Act 2019 receives the Royal Assent;
and
(b) be of limited or general application; and
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(c) differ according to differences in time,
place or circumstances; and
(d) leave any matter or thing to be
decided by a specified person or
class of persons; and
(e) provide for the exemption of persons or
matters or a class of persons or matters
from any of the regulations made under
this section.
(3) Regulations made under this section have
effect despite anything to the contrary--
(a) in any Act (other than this Act or
the Charter of Human Rights and
Responsibilities Act 2006); or
(b) in any subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it
comes into operation.".
Division 3--Other miscellaneous amendments
Subdivision 1--Residential institution amendments
126 Definitions
In section 3(1) of the Principal Act--
(a) in the definition of compulsory treatment, in
paragraph (a) omit "or a residential
institution";
(b) in the definition of leave of absence omit
"or from a residential institution under
section 170";
(c) in the definition of special leave omit
"or from a residential institution under
section 171";
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(d) the definition of residential institution is
repealed.
127 Persons with an intellectual disability
Section 6(1)(c) and (d) and (7) of the Principal
Act are repealed.
128 Planning for persons with an intellectual disability
Section 55(3) of the Principal Act is repealed.
129 Division 3 of Part 5 repealed
Division 3 of Part 5 of the Principal Act is
repealed.
130 Visiting of residential service
Section 129(2) of the Principal Act is repealed.
131 Security conditions
(1) In section 159(1) of the Principal Act, after
"leave" insert "under this or any other Act".
(2) In section 159(2) of the Principal Act, after "this"
insert "or any other".
132 Apprehension of resident absent without leave
In section 160 of the Principal Act, after
"special leave of absence" insert "under this or
any other Act".
133 Transfer of resident to another residential treatment
facility or a residential institution
(1) In the heading to section 161 of the Principal Act
omit "or a residential institution".
(2) In section 161(1) of the Principal Act omit "or to
a residential institution".
(3) In section 161(2) of the Principal Act--
(a) omit "or to a residential institution";
(b) omit "or residential institution".
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134 Transfer of person with an intellectual disability
from a prison
(1) In section 166(1), (5), (7)(b) and (c) and (8) of the
Principal Act omit "or residential institution".
(2) In section 166(3)(c) of the Principal Act omit
"or a residential institution".
135 Preparation of treatment plan
In section 167(1A)(a), (d) and (e) of the Principal
Act omit "residential institution or".
136 Annual review of security order and treatment plan
In section 168(4) of the Principal Act omit
"or residential institution".
137 Application for review of treatment plan
In section 169(4) of the Principal Act omit
"or residential institution".
138 Sections 170 to 174 and 178 repealed
Sections 170, 171, 172, 173, 174 and 178 of the
Principal Act are repealed.
139 Death of security resident
In section 176 of the Principal Act omit
"or residential institution".
140 Request for transfer to prison
In section 177(1) of the Principal Act omit
"or residential institution".
141 Notice of transfer of security resident to another
residential treatment facility or residential
institution
(1) In the heading to section 179 of the Principal Act
omit "or residential institution".
(2) In section 179 of the Principal Act omit "or to
another residential institution under section 178".
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142 Transfer of persons detained in prison under the
Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997
In section 180(1), (2)(c), (4), (7)(b) and (8) of the
Principal Act omit "or residential institution".
143 Status of forensic residents
In section 181 of the Principal Act omit
"or residential institution".
144 New section 242 inserted
After section 241 of the Principal Act insert--
'242 Long Term Residential Program taken to
be residential treatment facility
(1) 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.
(2) 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.
(3) 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).'.
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Subdivision 2--SDA related amendments
145 Definitions
(1) In section 3(1) of the Principal Act, for the
definition of SDA provider substitute--
"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;".
(2) In section 3(1) of the Principal Act, for the
definition of SDA residency agreement
substitute--
"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;".
(3) In section 3(1) of the Principal Act--
(a) in the definition of NDIS, for
"National Disability Insurance Scheme Act
2013 of the Commonwealth" substitute
"NDIS Act";
(b) in paragraph (b) of the definition of SDA
enrolled dwelling, for "National Disability
Insurance Scheme Act 2013 of the
Commonwealth" substitute "NDIS Act".
(4) In section 3(1) of the Principal Act--
(a) in paragraph (a)(i) of the definition of NDIS
participant's guardian, for "Guardianship
and Administration Act 1986" substitute
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"Guardianship and Administration
Act 2019";
(b) in paragraph (a)(i) of the definition of SDA
resident's guardian, for "Guardianship and
Administration Act 1986" substitute
"Guardianship and Administration
Act 2019".
Subdivision 3--Residential Tenancies Amendment
Act 2018 related amendments
146 Amendments consequential on commencement of
section 5 of Residential Tenancies Amendment
Act 2018
(1) In section 3(1) of the Principal Act, in
paragraph (c)(iii) of the definition of SDA
enrolled dwelling, for "tenancy agreement"
substitute "residential rental agreement".
(2) In section 30A(3) of the Principal Act, for
"tenancy agreement" substitute "residential rental
agreement".
(3) In section 30A(4)(a) and (b) of the Principal Act,
for "tenancy agreement" substitute
"residential rental agreement".
(4) In section 129(6) of the Principal Act, for
"tenancy agreement" substitute "residential rental
agreement".
(5) In section 131A(2) of the Principal Act, for
"tenancy agreement" substitute "residential rental
agreement".
(6) In section 236(1)(b)(i) of the Principal Act, for
"tenancy agreement" substitute "residential rental
agreement".
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Part 3--Amendment of Residential Tenancies Act 1997
Part 3--Amendment of Residential
Tenancies Act 1997
Division 1--SDA residents--tenancy agreements
147 New Subdivision 2A of Division 1 of Part 6 inserted
After Subdivision 2 of Division 1 of Part 6 of the
Residential Tenancies Act 1997 insert--
"Subdivision 2A--Termination of
tenancy agreement because of coercion
or deception of SDA resident
234A Application for termination of tenancy
agreement because of coercion or
deception of SDA resident
(1) An SDA resident who is party to a tenancy
agreement may apply to the Tribunal for any
of the following orders on a ground specified
in subsection (2)--
(a) an order terminating the existing
tenancy agreement;
(b) an order--
(i) terminating the existing tenancy
agreement; and
(ii) requiring the SDA provider who is
a landlord to enter a new tenancy
agreement with the person who is
an SDA resident and other persons
(if any) specified in the
application;
(c) if all the tenants under the existing
tenancy agreement are SDA residents,
an order--
(i) terminating the tenancy
agreement; and
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(ii) requiring the SDA provider who is
a landlord to enter into, or
establish, an SDA residency
agreement with each person who
is a tenant under the existing
tenancy agreement.
(2) The following grounds are specified for the
purposes of subsection (1)--
(a) the SDA resident was coerced or
deceived into entering into the tenancy
agreement;
(b) the SDA resident did not receive an
information statement as required under
section 498D before entering into the
tenancy agreement;
(c) the SDA resident was given an
information statement under
section 498D but did not receive an
explanation of that statement under
section 498E.
(3) For the purposes of a proceeding for an order
under subsection (1), each of the following
persons is a party to the proceeding--
(a) the SDA resident or one of the
following persons who may make an
application on behalf of the SDA
resident--
(i) the Director;
(ii) the SDA resident's guardian
(if any);
(iii) the SDA resident's administrator
(if any);
(iv) the Public Advocate;
(b) the SDA provider;
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(c) any other party to the existing tenancy
agreement;
(d) any other person specified in the
application as a party.
(4) An application under subsection (1) may be
made without the consent of the SDA
provider or any other party to the existing
tenancy agreement.
(5) The Tribunal must hear an application under
subsection (1)--
(a) within 3 business days of the
application being made; or
(b) if the application cannot be heard
within the period referred to in
paragraph (a), no later than the next
available sitting day of the Tribunal
after the end of that 3 business day
period.
(6) If an application is made under subsection
(1), unless the Tribunal otherwise orders, any
other action that could otherwise be taken in
respect of the existing tenancy agreement is
stayed until the Tribunal determines the
application.
234B Tribunal orders
(1) On an application under section 234A(1), the
Tribunal may--
(a) order the dismissal of the application;
or
(b) if satisfied that the SDA resident was
coerced or deceived into entering a
tenancy agreement or that the SDA
resident did not receive an information
statement under section 498D or an
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explanation of the information
statement under section 498E--
(i) order the termination of the
existing tenancy agreement; or
(ii) order the termination of the
existing tenancy agreement and
that the SDA provider enter into a
new tenancy agreement with the
SDA resident and other persons
(if any) specified in the
application; or
(iii) if all tenants to the agreement are
SDA residents, order the
termination of the existing tenancy
agreement and require the SDA
provider to enter into or establish
an SDA residency agreement with
each SDA resident.
(2) If the Tribunal makes an order under
subsection (1)(b), the Tribunal must specify
the date on which the existing tenancy
agreement terminates.
(3) For the purposes of subsection (1)(b), the
Tribunal may--
(a) adjourn the application to determine a
termination date in consultation with
the tenants party to the existing tenancy
agreement; or
(b) adjourn the application to allow the
parties to the existing tenancy
agreement to enter into a new tenancy
agreement or to enter into, or establish,
one or more SDA residency agreements
(as appropriate); or
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(c) if, during an adjournment the parties to
the existing tenancy agreement are--
(i) unable to enter into a new tenancy
agreement, direct the parties to
enter into a new tenancy
agreement on terms declared by
the Tribunal; or
(ii) unable to enter into, or establish,
one or multiple SDA residency
agreements (as appropriate), direct
the parties to enter into one or
multiple new SDA residency
agreements (as appropriate) on
terms declared by the Tribunal.
(4) If the Tribunal makes an order under
subsection (1)(b), having regard to any
financial disadvantage suffered by the tenant
and regardless of any loss or damage
suffered by the SDA provider, the Tribunal
may--
(a) order that any bond paid by the tenant
under the existing tenancy agreement
be paid out by the Authority to the
tenant and, if there is more than one
tenant under the existing tenancy
agreement, apportion the bond to be
paid out by the Authority between the
tenants; and
(b) revoke any compensation orders that
have been issued against the tenant.
(5) In determining an application under
section 234A(1), the Tribunal may take into
account the Director's guidelines.".
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148 Reduced period of notice of intention to vacate in
certain circumstances
(1) In section 237(1) of the Residential Tenancies
Act 1997--
(a) in paragraph (d), for "accommodation."
substitute "accommodation; or";
(b) after paragraph (d) insert--
"(e) the tenant, who is an SDA resident, has
been given a notice under
section 498DA.".
(2) After section 237(3) of the Residential Tenancies
Act 1997 insert--
"(3A) A tenant to whom subsection (1)(e) applies
may give a landlord who is, or was, an SDA
provider, a notice of intention to vacate a
premises that is, or was, an SDA enrolled
dwelling, specifying a termination date that
is not less than 14 days after the date on
which the notice is given.".
149 Further functions of Director in relation to SDA
enrolled dwellings
In section 486B(1) of the Residential Tenancies
Act 1997--
(a) in paragraph (e), for "research." substitute
"research; and";
(b) after paragraph (e) insert--
"(f) to maintain a list recording the details
of SDA residency agreements the
Director is notified of under
section 498F(5).".
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Division 2--Amendment of Part 12A
150 Definitions--Part 12A
(1) In section 498B of the Residential Tenancies
Act 1997 insert the following definitions--
"carer has the same meaning as in the Carers
Recognition Act 2012;
NDIS behaviour support plan has the same
meaning as in the Disability Act 2006;
registered NDIS provider has the same meaning
as in the National Disability Insurance
Scheme Act 2013 of the Commonwealth;
standard form means the form prescribed for the
purposes of section 498I;".
(2) In section 498B of the Residential Tenancies
Act 1997, for paragraph (a) of the definition of
SDA provider substitute--
"(a) who is a registered NDIS provider that
provides specialist disability
accommodation; and".
(3) In section 498B of the Residential Tenancies
Act 1997, for the definition of Supported
Independent Living provider substitute--
"Supported Independent Living provider means a
registered NDIS provider that provides
supported independent living assistance;".
151 When does Part not apply to occupation of SDA
enrolled dwelling
In section 498C(2) of the Residential Tenancies
Act 1997, for "the occupation of that SDA
enrolled dwelling by the SDA resident" substitute
"the SDA provider and the SDA resident".
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152 Division 2 heading amended
In the heading to Division 2 of Part 12A of the
Residential Tenancies Act 1997, after
"information" insert "and notices".
153 Information statement required to be given to SDA
resident
(1) In section 498D(1) of the Residential Tenancies
Act 1997, for "containing the prescribed details"
substitute ", in the form approved by the
Director,".
(2) For the penalty at the foot of section 498D(1) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 300 penalty units in the case of a
natural person;
750 penalty units in the case of a body
corporate.".
(3) In section 498D(3) of the Residential Tenancies
Act 1997, for "containing the prescribed details"
substitute "in the form approved by the Director".
(4) For the penalty at the foot of section 498D(3) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 300 penalty units in the case of a
natural person;
750 penalty units in the case of a body
corporate.".
154 New section 498DA inserted
After section 498D of the Residential Tenancies
Act 1997 insert--
"498DA Notice of revocation of registration or
enrolment
(1) If the registration of a person under the
NDIS as a registered provider is revoked, the
person must give any SDA resident to whom
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the person is providing an SDA enrolled
dwelling, written notice--
(a) within 5 days of the registration being
revoked; and
(b) specifying--
(i) that the person's registration under
the NDIS has been revoked; and
(ii) the date of the revocation; and
(iii) in the case of an SDA enrolled
dwelling provided under a tenancy
agreement, that the SDA resident
may give the landlord a reduced
period of notice of intention to
vacate the SDA enrolled dwelling
under section 237; and
(iv) in the case of an SDA enrolled
dwelling provided under an SDA
residency agreement, that the
SDA residency agreement is
terminated 90 days after the day
the person's registration under the
NDIS was revoked.
Penalty: 25 penalty units.
(2) If a dwelling ceases to be an SDA enrolled
dwelling, an SDA provider providing the
dwelling to an SDA resident, must give the
SDA resident written notice--
(a) within 5 days after the dwelling ceases
to be enrolled as an SDA enrolled
dwelling; and
(b) specifying--
(i) that the dwelling is no longer
enrolled as an SDA enrolled
dwelling; and
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(ii) the date the dwelling ceased to be
an SDA enrolled dwelling; and
(iii) in the case of a former SDA
enrolled dwelling being provided
under a tenancy agreement, that
the SDA resident may give the
landlord a reduced period of
notice of intention to vacate the
SDA enrolled dwelling under
section 237; and
(iv) in the case of a former SDA
enrolled dwelling provided under
an SDA residency agreement, that
the SDA residency agreement is
terminated 90 days after the day
the SDA enrolled dwelling ceased
to be enrolled.
Penalty: 25 penalty units.".
155 Explaining notices or information given to SDA
residents under this Part
In section 498E(4) of the Residential Tenancies
Act 1997, for "may" substitute "must".
156 New section 498EA inserted
After section 498E of the Residential Tenancies
Act 1997 insert--
"498EA Explanation of Tribunal orders
(1) This section applies if--
(a) the Tribunal makes an order or gives a
direction in accordance with this Act
that is in respect of an SDA resident;
and
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(b) the SDA resident is not represented by
any of the following persons--
(i) the SDA resident's guardian
(if any);
(ii) the SDA resident's administrator
(if any);
(iii) a carer of the SDA resident;
(iv) a person chosen by the SDA
resident;
(v) a litigation guardian appointed by
the Tribunal;
(vi) an Australian lawyer; and
(c) one of the persons specified in
subparagraph (i) or (ii) is a party to the
proceeding for which the order was
made, or the direction given, in respect
of the SDA resident--
(i) an SDA provider; or
(ii) if an SDA provider is not a party
to the proceeding but a relevant
person is a party, a relevant
person.
(2) The SDA provider or a relevant person must
explain the order or direction in the
language, mode of communication and terms
in which the SDA resident is most likely to
understand.
(3) An explanation given under subsection (2)
must, if reasonable, be given both orally and
in writing.
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(4) If it appears that the SDA resident would
benefit from support or requires support to
understand the order made, or direction
given, the SDA provider or relevant person
must use reasonable endeavours to convey
the information or contents of the order or
direction to the SDA resident in the
language, mode of communication or terms
which the SDA resident is most likely to
understand.
(5) If it appears that the SDA resident would
benefit from support or requires support to
understand the order made, or direction
given, the SDA provider or relevant person
must give a copy of the order or direction--
(a) to a family member, carer, guardian,
advocate or other person chosen by the
SDA resident; or
(b) if no person is chosen under
paragraph (a), to a person who the SDA
provider or other relevant person
considers can assist the SDA resident
and is not employed by, or a
representative of, the SDA provider or
other relevant person.
(6) In this section--
relevant person means any of the
following--
(a) an agent of the SDA provider;
(b) a mortgagee in respect of an SDA
enrolled dwelling that the SDA
resident is or was residing in;
(c) an SDA enrolled dwelling owner
within the meaning of
section 498ZZX.".
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157 Agreement for provision of SDA enrolled dwelling
After section 498F(4) of the Residential
Tenancies Act 1997 insert--
"(5) An SDA provider must give the Director
written notice of any SDA residency
agreement entered into under subsection
(1)(a) or that is taken to be established under
subsection (3) within 14 days of the
agreement being entered into or established.
Penalty: 60 penalty units.
(6) A written notice specified in subsection (5)
must state the following details--
(a) the name and contact details of the
SDA provider who has entered into or
established the SDA residency
agreement;
(b) the address of the SDA enrolled
dwelling being provided by the SDA
provider under the SDA residency
agreement;
(c) the term of the SDA residency
agreement.".
158 Working with SDA resident to establish an SDA
residency agreement
In section 498G(3) of the Residential Tenancies
Act 1997, for "SDA provider may" substitute
"SDA provider must".
159 Copy of SDA residency agreement to be made
available to SDA resident
For the penalty at the foot of section 498H of the
Residential Tenancies Act 1997 substitute--
"Penalty: 25 penalty units.".
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160 SDA residency agreements to be in standard form
For the penalty at the foot of section 498I(2) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 25 penalty units.".
161 Harsh and unconscionable terms
For section 498L(3) of the Residential Tenancies
Act 1997 substitute--
"(3) A term of an SDA residency agreement must
not be declared invalid under this section
if--
(a) it is required by or under the National
Disability Insurance Scheme Act 2013
of the Commonwealth or any
regulations, rules or instruments made
under that Act; or
(b) it is required by any prescribed Act,
regulations, rules or instruments; or
(c) it is in the prescribed standard form.".
162 New Division 3A inserted in Part 12A
After Division 3 of Part 12A of the Residential
Tenancies Act 1997 insert--
"Division 3A--Disclosures and
representations prior to entering into
SDA residency agreement
498LA Restriction on use of personal information
provided by applicants for SDA enrolled
dwellings
An SDA provider or that person's agent must
not use personal information disclosed by a
person on an application form used to apply
to enter into an SDA residency agreement
unless the use is for the following--
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(a) to determine whether the applicant is,
or will be, an SDA resident;
(b) to determine whether the SDA enrolled
dwelling meets the needs of the
applicant;
(c) if the SDA enrolled dwelling is a
shared living environment, to assess the
applicant's compatibility with--
(i) SDA residents already residing in
the SDA enrolled dwelling; or
(ii) other applicants applying to enter
into an SDA residency agreement
in respect of the SDA enrolled
dwelling.
498LB Information that SDA provider must
disclose before entering SDA residency
agreement
Before entering into an SDA residency
agreement, an SDA provider must disclose
the following information to the SDA
recipient--
(a) if the SDA provider has engaged an
agent to sell the SDA enrolled dwelling
or prepared a contract of sale, that there
is a proposal to sell the SDA enrolled
dwelling;
(b) if a mortgagee has commenced a
proceeding to enforce a mortgage over
the SDA enrolled dwelling, that a
mortgagee is taking action for
possession of the SDA enrolled
dwelling;
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(c) if the SDA provider is not the owner of
the SDA enrolled dwelling, that the
SDA provider has a right to let the SDA
enrolled dwelling;
(d) if the SDA enrolled dwelling is
supplied with electricity from an
embedded electricity network, the
prescribed details of the operator of the
embedded electricity network;
(e) if the SDA provider is not the owner of
the SDA enrolled dwelling and the
owner has engaged an agent to sell the
SDA enrolled dwelling or prepared a
contract of sale, that there is a proposal
to sell the SDA enrolled dwelling;
(f) any other prescribed information in
relation to the SDA enrolled dwelling.
498LC Misleading or deceptive conduct inducing
a person to enter an SDA residency
agreement
(1) This section applies to--
(a) an SDA provider who is not acting in
trade or commerce in entering into an
SDA residency agreement; and
(b) the agent of an SDA provider referred
to in paragraph (a) who is not acting in
trade or commerce.
(2) An SDA provider or that person's agent must
not induce a person to enter into an SDA
residency agreement by engaging in conduct
that is misleading or deceptive, or that is
likely to mislead or deceive.
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(3) An SDA provider or that person's agent must
not induce a person to enter into an SDA
residency agreement by making a false or
misleading representation concerning any of
the following--
(a) the SDA provider's interest in the land;
(b) the rent payable under the agreement;
(c) the location of the SDA enrolled
dwelling to be let under the agreement;
(d) the characteristics of the SDA enrolled
dwelling to be let under the agreement;
(e) the use to which the SDA enrolled
dwelling to be let under the agreement
is capable of being put or may lawfully
be put;
(f) the existence or availability of facilities
associated with the SDA enrolled
dwelling to be let under the agreement.
Penalty: 60 penalty units in the case of a
natural person;
300 penalty units in the case of a
body corporate.
(4) This section does not limit the operation of
the Australian Consumer Law (Victoria).".
163 Duties of SDA provider
(1) In section 498M of the Residential Tenancies
Act 1997--
(a) for paragraph (c) substitute--
"(c) not unreasonably interfere with an SDA
resident's right to privacy; and
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(ca) install fixtures required by the SDA
resident to assist their daily living or
proper use and enjoyment of the SDA
enrolled dwelling; and";
(b) for paragraph (f) substitute--
"(f) take reasonable steps to ensure that any
repairs or renovations--
(i) are carried out by a suitably
qualified person; and
(ii) are completed in a timely
manner.".
(2) At the end of section 498M of the Residential
Tenancies Act 1997 insert--
"(2) An SDA provider who provides an SDA
enrolled dwelling must not unreasonably
refuse to give consent to the SDA resident's
request to keep a pet in the SDA enrolled
dwelling.
(3) For the purposes of subsection (2), the
grounds on which an SDA provider may
reasonably refuse to give consent to an SDA
resident's request to keep a pet are--
(a) that another SDA resident living in the
same SDA enrolled dwelling under an
SDA residency agreement--
(i) has not consented to the keeping
of the pet at the SDA enrolled
dwelling; and
(ii) has reasonable grounds for not
consenting to keeping the pet at
the SDA enrolled dwelling; or
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(b) that the pet would create a health and
safety hazard were it kept at the SDA
enrolled dwelling.
Note
See section 54 of the Equal Opportunity Act 2010 in
relation to the provision of accommodation to a
person with a disability who has an assistance dog.".
164 Duties of SDA resident
(1) In section 498N(1)(c) and (2)(d) of the
Residential Tenancies Act 1997 omit
"intentionally".
(2) In section 498N(2) of the Residential Tenancies
Act 1997--
(a) in paragraph (e), for "provider." substitute
"provider; and";
(b) after paragraph (e) insert--
"(f) keep a pet without obtaining the
consent of the SDA provider.".
(3) After section 498N(2) of the Residential
Tenancies Act 1997 insert--
"(3) An SDA resident does not owe a duty
specified in subsection (1)(c) or breach a
duty specified in subsection (2)(d) if any of
the following significantly contributed to the
damage or destruction caused--
(a) fair wear and tear;
(b) accidental damage;
(c) the reasonable use of the SDA enrolled
dwelling;
(d) the reasonable use of any aids,
equipment, fixtures and fittings used in
the SDA enrolled dwelling;
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(e) the act or omission of a person who is
not the SDA resident;
(f) any behaviour arising from the SDA
resident's disability including behaviour
in response to circumstances
aggravating to the SDA resident's
disability or emotional wellbeing;
(g) a failure by a person to implement or
comply with the SDA resident's support
plan or NDIS behaviour support plan;
(h) the unauthorised use of a restrictive
practice within the meaning of the
Disability Act 2006;
(i) circumstances suggesting that the SDA
resident has been subjected to abuse or
neglect.".
165 Application and definition
In section 498O(2) of the Residential Tenancies
Act 1997, after paragraph (a) in the definition of
chosen person insert--
"(ab) who is an SDA resident's administrator; or".
166 Application to Tribunal for urgent repairs
After section 498P(2) of the Residential
Tenancies Act 1997 insert--
"(3) Without limiting the matters which the
Tribunal may consider in determining an
application under this section, the Tribunal
must consider the Director's guidelines.".
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167 Application to Tribunal for non-urgent repairs
After section 498R(3) of the Residential
Tenancies Act 1997 insert--
"(4) The Tribunal must hear an application under
subsection (1) or (3) within 7 days after the
application is made.".
168 What can the Tribunal order?
(1) For section 498S(1) of the Residential Tenancies
Act 1997 substitute--
"(1) If the Tribunal is satisfied that the SDA
provider is in breach of the duty to maintain
the SDA enrolled dwelling in good repair,
the Tribunal may order--
(a) the SDA provider to carry out specified
repairs; and
(b) the use of a suitably qualified person to
carry out the repairs.".
(2) In section 498S(2) of the Residential Tenancies
Act 1997, for "The" substitute "If the Tribunal
makes an order requiring the SDA provider to
carry out specified repairs, the".
169 Entry of SDA enrolled dwelling
For section 498U(b) of the Residential Tenancies
Act 1997 substitute--
"(b) at any time between 8 a.m. and 6 p.m. on any
day (except a public holiday)--
(i) for a purpose set out in
section 498V(1)(a) or (b), if at least
48 hours notice has been given to the
SDA resident or SDA residents in
accordance with section 498X; or
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(ii) for a purpose set out in
section 498V(1)(c) or (f), if at least
24 hours notice has been given to the
SDA resident or SDA residents in
accordance with section 498X; or
(iii) for a purpose set out in
section 498V(1)(d) or (e), if at least
7 days notice has been given to the
SDA resident or SDA residents in
accordance with section 498X.".
170 Grounds for entry of SDA enrolled dwelling
(1) In section 498V(2)(a) of the Residential
Tenancies Act 1997, after "resident agrees"
insert ", or if there are multiple SDA residents, all
the SDA residents agree".
(2) For section 498V(3) of the Residential Tenancies
Act 1997 substitute--
"(3) A right of entry in respect of an SDA
enrolled dwelling for a purpose referred to in
subsection (1)(a) may only be exercised--
(a) in the period within 21 days before the
termination date specified in the notice
to vacate or notice of intention to
vacate; and
(b) up to twice a week, unless otherwise
agreed with the SDA resident or, if
there are multiple SDA residents, all
the SDA residents; and
(c) for a period of no longer than one hour,
unless a longer period is agreed with
the SDA resident or, if there are
multiple SDA residents, all the SDA
residents.".
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(3) After section 498V(3) of the Residential
Tenancies Act 1997 insert--
"(3A) The following apply in respect of entry to an
SDA enrolled dwelling for a purpose
referred to in subsection (1)(b)--
(a) the right of entry may only be
exercised--
(i) if the SDA provider has given the
SDA resident or, if there are
multiple SDA residents, all the
SDA residents, notice of intention
to sell in the form approved by the
Director at least 14 days before
entry is proposed; and
(ii) if the SDA provider has made all
reasonable efforts to agree with
the SDA resident or, if there are
multiple SDA residents in the
SDA enrolled dwelling, all the
SDA residents, on days and times
for the property to be available for
inspection; and
(iii) up to twice a week, unless
otherwise agreed with the SDA
resident or, if there are multiple
SDA residents in the SDA
enrolled dwelling, all the SDA
residents; and
(iv) for a period of no longer than one
hour, unless a longer period is
agreed with the SDA resident or,
if there are multiple SDA
residents in the SDA enrolled
dwelling, all the SDA residents;
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(b) SDA residents at the SDA enrolled
dwelling are entitled to the prescribed
compensation for sales inspections.
(3B) If an SDA provider exercises a right of entry
under subsection (1)(b), the SDA provider
must pay the SDA resident or SDA residents
(as appropriate) the prescribed compensation
for each sales inspection.".
(4) After section 498V(4) of the Residential
Tenancies Act 1997 insert--
"(5) For the purposes of subsection (2)(d), if the
SDA provider believes on reasonable
grounds that the SDA resident has
abandoned an SDA enrolled dwelling
occupied by multiple SDA residents
(other SDA residents), the SDA provider
must not enter those parts of the SDA
enrolled dwelling exclusively occupied by
the other SDA residents.".
171 Manner of entry
In section 498W(b) of the Residential Tenancies
Act 1997, after "consent" insert "or, if there are
multiple SDA residents, without the consent of all
the SDA residents".
172 Notice of increase in rent
After section 498ZB(1) of the Residential
Tenancies Act 1997 insert--
"(1A) The notice of proposed rent increase must
include--
(a) the amount of the rent increase; and
(b) the method by which the rent increase
was calculated; and
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(c) a statement informing the SDA resident
of the SDA resident's right under
section 498ZG to apply within 30 days
after the notice is given to the Director
to investigate and report on the
proposed rent.".
173 Limit on payment in advance
At the foot of section 498ZC of the Residential
Tenancies Act 1997 insert--
"Penalty: 60 penalty units.".
174 Where and how is rent to be paid?
(1) In section 498ZD of the Residential Tenancies
Act 1997, for "The rent" substitute "Subject to
this section, the rent".
(2) At the end of section 498ZD of the Residential
Tenancies Act 1997 insert--
"(2) An SDA provider or that person's agent must
not require an SDA resident to pay rent by a
cheque or other negotiable instrument that is
post-dated.
Penalty: 60 penalty units.
(3) An SDA provider or that person's agent must
ensure that a rent payment method that
incurs no additional costs (other than bank
fees or account fees payable on the SDA
resident's bank account) is reasonably
available to the SDA resident.
Penalty: 60 penalty units.
(4) Without limiting how rent is paid, an SDA
provider or that person's agent must permit
the SDA resident to pay the rent by the
following payment methods--
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(a) the bill paying service known as
Centrepay administered by the
Department of Human Services of the
Commonwealth;
(b) any prescribed payment method.
(5) Without limiting subsection (4), by
agreement, the SDA provider and the SDA
resident may change the manner in which
rent is payable under the SDA residency
agreement.
(6) The SDA provider or that person's agent
must give the SDA resident information
about any costs (including third party
transaction fees, direct debit dishonour fees
and any other electronic payment facility
fees) that the SDA resident may incur by
using a particular payment method before the
SDA resident consents to use the payment
method.".
175 Receipts for rent
(1) For the penalty at the foot of section 498ZE(1) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 25 penalty units.".
(2) For the penalty at the foot of section 498ZE(2) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 25 penalty units.".
(3) For the penalty at the foot of section 498ZE(3) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 25 penalty units.".
176 SDA resident's goods not to be taken for rent
For the penalty at the foot of section 498ZF of the
Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
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177 Certain charges prohibited
(1) For the penalty at the foot of section 498ZL(1) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
(2) For the penalty at the foot of section 498ZL(2) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
(3) For the penalty at the foot of section 498ZL(3) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
(4) For the penalty at the foot of section 498ZL(4) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
(5) In section 498ZL(5)(b) of the Residential
Tenancies Act 1997, after "facilities" insert
"or any other electronic payment facility".
(6) For the penalty at the foot of section 498ZL(5) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
178 SDA provider's liability for various utility charges
(1) In section 498ZM of the Residential Tenancies
Act 1997--
(a) in paragraph (b), for "dwelling." substitute
"dwelling; and";
(b) after paragraph (b) insert--
"(c) all rates, taxes or charges payable under
any Act other than charges payable by
the SDA resident under this Part.".
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(2) At the end of section 498ZM of the Residential
Tenancies Act 1997 insert--
"(2) If an SDA resident has been charged for
excessive usage of a service at the SDA
enrolled dwelling caused by a fault in
infrastructure or any fixtures or buildings at
or connected to the SDA enrolled dwelling,
the SDA provider is liable for that part of the
charge that is additional to an amount of
ordinary usage by the SDA resident.
Example
Excessive usage charges caused by a leak in the
underground pipe of a water service connected to an
SDA enrolled dwelling.".
179 SDA provider must not seek overpayment for utility
charge
For the penalty at the foot of section 498ZN of the
Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
180 Definitions--compensation and compliance
(1) In section 498ZO of the Residential Tenancies
Act 1997, in the definition of duty provision--
(a) for paragraph (a) substitute--
"(a) section 498M(1)(a), (b), (c), (d), (e)
or (f) or (2); or";
(b) in paragraph (b), for "(2)(d) or (e)"
substitute "(2)(d), (e) or (f)".
(2) In section 498ZO of the Residential Tenancies
Act 1997 insert the following definition--
"breach of duty notice means a notice served
under section 498ZP;".
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181 Breach of duty notice
(1) In section 498ZP(2) of the Residential Tenancies
Act 1997 omit "intentionally".
(2) After section 498ZP(2) of the Residential
Tenancies Act 1997 insert--
"(2A) An SDA resident does not breach a duty
provision if any of the following have
significantly contributed to the breach of the
duty provision--
(a) in the case of damage to, or destruction
of, an SDA enrolled dwelling, fair wear
and tear;
(b) in the case of damage to, or destruction
of, an SDA enrolled dwelling,
accidental damage;
(c) the reasonable use of the SDA enrolled
dwelling;
(d) the reasonable use of any aids,
equipment, fixtures and fittings used in
the SDA enrolled dwelling;
(e) the act or omission of a person who is
not the SDA resident;
(f) any behaviour arising from the SDA
resident's disability including
circumstances aggravating to the SDA
resident's disability or emotional
wellbeing;
(g) a failure by a person to implement or
comply with the SDA resident's support
plan or NDIS behaviour support plan;
(h) the unauthorised use of a restrictive
practice within the meaning of the
Disability Act 2006;
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(i) circumstances suggesting that the SDA
resident has been subjected to abuse or
neglect.".
182 Matters which may be considered by Tribunal
(1) In the heading to section 498ZR of the
Residential Tenancies Act 1997, for
"which may" substitute "to".
(2) Section 498ZR(a) of the Residential Tenancies
Act 1997 is repealed.
(3) At the end of section 498ZR of the Residential
Tenancies Act 1997 insert--
"(2) In hearing an application under
section 498ZQ in respect of a breach of duty
notice given to an SDA resident, the
Tribunal must consider whether any of the
following significantly contributed to the
breach of duty in respect of which the claim
was made--
(a) in the case of damage to, or destruction
of, property, fair wear and tear;
(b) in the case of damage to, or destruction
of, property, accidental damage;
(c) the reasonable use of the SDA enrolled
dwelling;
(d) the reasonable use of any aids,
equipment, fixtures and fittings used in
the SDA enrolled dwelling;
(e) the act or omission of a person who is
not the SDA resident;
(f) any behaviour arising from the SDA
resident's disability including
circumstances aggravating to the SDA
resident's disability or emotional
wellbeing;
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(g) a failure by a person to implement or
comply with the SDA resident's support
plan or NDIS behaviour support plan;
(h) the unauthorised use of a restrictive
practice within the meaning of the
Disability Act 2006;
(i) circumstances suggesting that the SDA
resident has been subjected to abuse or
neglect.".
183 Orders of Tribunal
After section 498ZS(2) of the Residential
Tenancies Act 1997 insert--
"(2A) In the case of an application under
section 498ZQ, if after considering the
matters specified in section 498ZR(2), the
Tribunal is not satisfied that an SDA
provider was entitled to give the breach of
duty notice, the Tribunal must dismiss the
application and declare the notice to be
invalid.".
184 Notice of temporary relocation
(1) In section 498ZV(1) of the Residential Tenancies
Act 1997--
(a) after paragraph (c) insert--
"(ca) the SDA resident can no longer be
appropriately supported in the SDA
enrolled dwelling;";
(b) for paragraph (e) substitute--
"(e) the SDA resident has caused serious
damage or destroyed any part of the
SDA enrolled dwelling;";
(c) in paragraph (i), after "repair" insert
", renovate or reconstruct".
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(2) After section 498ZV(2) of the Residential
Tenancies Act 1997 insert--
"(2A) An SDA provider must not give a notice of
temporary relocation on a ground specified
in subsection (1)(e) to an SDA resident if
any of the following have significantly
contributed to the serious damage or
destruction caused--
(a) fair wear and tear;
(b) accidental damage;
(c) the reasonable use of the SDA enrolled
dwelling;
(d) the reasonable use of any aids,
equipment, fixtures and fittings used in
the SDA enrolled dwelling;
(e) the act or omission of a person who is
not the SDA resident;
(f) any behaviour arising from the SDA
resident's disability including
circumstances aggravating to the SDA
resident's disability or emotional
wellbeing;
(g) a failure by a person to implement or
comply with the SDA resident's support
plan or NDIS behaviour support plan;
(h) the unauthorised use of a restrictive
practice within the meaning of the
Disability Act 2006;
(i) circumstances suggesting that the SDA
resident has been subjected to abuse or
neglect.".
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(3) In section 498ZV(4) of the Residential Tenancies
Act 1997, for "and the Public Advocate"
substitute ", the Public Advocate and the
Director".
(4) For the penalty at the foot of section 498ZV(4) of
Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
(5) In section 498ZV(5) of the Residential Tenancies
Act 1997, after "Public Advocate" insert "and the
Director".
(6) For the penalty at the foot of section 498ZV(5) of
Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
(7) In section 498ZV(6) of the Residential Tenancies
Act 1997 for ", before the notice of temporary
relocation expires, to provide an opportunity for
the SDA resident's support plan to be reviewed"
substitute "as soon as possible".
(8) In section 498ZV(7) of the Residential Tenancies
Act 1997, after "alternative accommodation"
insert "that is suitable for the SDA resident".
(9) In section 498ZV(9)(b) of the Residential
Tenancies Act 1997, for "respite" substitute
"short-term accommodation".
185 Termination of SDA residency agreement
(1) For section 498ZW(b)(ii) of the Residential
Tenancies Act 1997 substitute--
"(ii) if a possession order is made, at the end of
the day before the day on which the
possession of the SDA enrolled dwelling is
delivered up to the SDA provider;".
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(2) For section 498ZW(g) of the Residential
Tenancies Act 1997 substitute--
"(g) if the SDA resident is deemed to have
abandoned the SDA enrolled dwelling under
section 498ZWA;".
(3) Section 498ZW(h) and (i) of the Residential
Tenancies Act 1997 are repealed.
(4) At the end of section 498ZW of the Residential
Tenancies Act 1997 insert--
"(2) For the purposes of subsection (1)(j), an
SDA resident must give an SDA provider a
notice of intention to terminate.
(3) A notice of intention to terminate must--
(a) be given in writing; and
(b) specify the date on which the SDA
resident intends to terminate the SDA
residency agreement.
(4) A notice of intention to terminate may be
given in writing on behalf of the SDA
resident by the SDA resident's guardian or
the SDA resident's administrator, if any.
(5) The SDA provider must notify the following
persons of the details of a notice of intention
to terminate given under subsection (2)
within 24 hours of the notice being received
by the SDA provider--
(a) if the notice was given by an SDA
recipient, the Chief Executive Officer
of the NDIA;
(b) the Public Advocate;
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(c) if the notice was not given under
subsection (4), the SDA resident's
guardian or the SDA resident's
administrator, as the case requires;
(d) the Director.".
186 New section 498ZWA inserted
After section 498ZW of the Residential
Tenancies Act 1997 insert--
"498ZWA Order of Tribunal that premises are
abandoned
(1) If an SDA provider believes that an SDA
resident has abandoned an SDA enrolled
dwelling, the SDA provider may apply to the
Tribunal for an order declaring that the SDA
resident has abandoned it.
(2) An application under subsection (1) must be
heard by the Tribunal within 5 business days
after the application is made.
(3) On an application under subsection (1), the
Tribunal by order may declare that the SDA
enrolled dwelling was abandoned by the
SDA resident on a day specified by the
Tribunal.
(4) The SDA resident is deemed to have
abandoned the SDA enrolled dwelling on
that specified day.".
187 Notice to vacate by SDA provider
(1) For section 498ZX(1)(e) and (f) of the
Residential Tenancies Act 1997 substitute--
"(e) the SDA resident can no longer be
appropriately supported in the SDA enrolled
dwelling; or
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(f) the SDA resident has caused serious damage
or destroyed any part of the SDA enrolled
dwelling; or".
(2) In section 498ZX(1) of the Residential Tenancies
Act 1997--
(a) in paragraph (h), for ", reconstruct or
demolish" substitute "or reconstruct";
(b) after paragraph (h) insert--
"(ha) the SDA provider intends to demolish
the SDA enrolled dwelling immediately
after the termination date and has
obtained all necessary permits and
consents to carry out the demolition and
the demolition cannot be properly
carried out unless the SDA resident
vacates the SDA enrolled dwelling; or".
(3) At the foot of section 498ZX(1)(h) of the
Residential Tenancies Act 1997 insert--
"Note
See section 498ZZZPA.".
(4) Section 498ZX(1)(i) and (j) of the Residential
Tenancies Act 1997 are repealed.
(5) After section 498ZX(4) of the Residential
Tenancies Act 1997 insert--
"(4A) An SDA provider must not give an SDA
resident a notice to vacate on a ground
specified in subsection (1)(f) or (1)(l) if any
of the following have significantly
contributed to the serious damage or
destruction caused, or the failure to comply
with an order--
(a) in the case of damage to, or destruction
of, an SDA enrolled dwelling, fair wear
and tear;
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(b) in the case of damage to, or destruction
of, an SDA enrolled dwelling,
accidental damage;
(c) the reasonable use of the SDA enrolled
dwelling;
(d) the reasonable use of any aids,
equipment, fixtures and fittings used in
the SDA enrolled dwelling;
(e) the act or omission of a person who is
not the SDA resident;
(f) any behaviour arising from the SDA
resident's disability including
circumstances aggravating to the SDA
resident's disability or emotional
wellbeing;
(g) a failure by a person to implement or
comply with the SDA resident's support
plan or NDIS behaviour support plan;
(h) the unauthorised use of a restrictive
practice within the meaning of the
Disability Act 2006;
(i) circumstances suggesting that the SDA
resident has been subjected to abuse or
neglect.
(4B) An SDA provider must not give an SDA
resident a notice to vacate under subsection
(1)(l) if the Tribunal's order under
section 498ZS was in respect of a breach of
duty notice given under section 498N(2)(f).".
(6) After section 498ZX(6)(a) of the Residential
Tenancies Act 1997 insert--
"(ab) must specify that the SDA resident may
apply to the Tribunal under section 498ZZC
for review of the notice within 90 days of the
day on which the notice was issued; and
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(ac) in the case of a notice to vacate given on a
ground under subsection (1)(h) or (k), must
be accompanied by documentary evidence,
as approved by the Director from time to
time, which supports the reasons for giving
the notice; and
Note
See section 486A.".
(7) In section 498ZX(7) of the Residential Tenancies
Act 1997, for "and the Public Advocate"
substitute ", the Public Advocate and the
Director".
(8) For the penalty at the foot of section 498ZX(7) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
(9) In section 498ZX(8) of the Residential Tenancies
Act 1997, after "Public Advocate" insert "and the
Director".
(10) For the penalty at the foot of section 498ZX(8) of
the Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
(11) In section 498ZX(9) of the Residential Tenancies
Act 1997, for ", before the notice to vacate
expires, to provide an opportunity for the SDA
resident's support plan to be reviewed" substitute
"as soon as possible".
188 Notice of intention to vacate by SDA resident
In section 498ZZA(4) of the Residential
Tenancies Act 1997--
(a) for "notice of being" substitute
"notice being";
(b) in paragraph (c), for "requires." substitute
"requires;";
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(c) after paragraph (c) insert--
"(d) the Director.".
189 Withdrawal of notice
After section 498ZZB(3) of the Residential
Tenancies Act 1997 insert--
"(4) If a notice of withdrawal is given under this
section, the SDA provider must give details
of the notice of withdrawal to the Director
within 14 days after the notice is given.".
190 New section 498ZZCA inserted
After section 498ZZC of the Residential
Tenancies Act 1997 insert--
"498ZZCA Notice by owner
(1) If an SDA provider under an SDA residency
agreement is not the owner of the SDA
enrolled dwelling to which the agreement
relates, the owner may exercise a right of the
SDA provider--
(a) to give the SDA resident a notice to
vacate the SDA enrolled dwelling; or
(b) to recover possession of the SDA
enrolled dwelling; or
(c) to give a breach of duty notice that
applies to the SDA residency
agreement.
(2) A notice to vacate given in accordance with
a right conferred under subsection (1) does
not have effect unless it specifies a
termination date on or after the day on which
the SDA provider's interest in the premises
ends.
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(3) If the owner exercises a right conferred by
subsection (1) in relation to an SDA
residency agreement, Divisions 2, 9, 10, 11
and 13 have effect as if a reference to an
SDA provider under an SDA residency
agreement included a reference to the
owner.".
191 Notice to vacate by mortgagee
(1) In section 498ZZD(3) of the Residential
Tenancies Act 1997, for "and the Public
Advocate" substitute ", the Public Advocate and
the Director".
(2) For the penalty at the foot of section 498ZZD(3)
of the Residential Tenancies Act 1997
substitute--
"Penalty: 60 penalty units.".
(3) In section 498ZZD(4) of the Residential
Tenancies Act 1997, after "Public Advocate"
insert "and the Director".
(4) For the penalty at the foot of section 498ZZD(4)
of the Residential Tenancies Act 1997
substitute--
"Penalty: 60 penalty units.".
192 Application for possession order by mortgagee
At the end of section 498ZZF of the Residential
Tenancies Act 1997 insert--
"(2) An application under this section must be
accompanied by a copy of any court order
which shows the mortgagee's entitlement to
possession and to exercise a power of sale.".
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193 Order of Tribunal
(1) In section 498ZZH(1) of the Residential
Tenancies Act 1997--
(a) in paragraph (b), for "withdrawn." substitute
"withdrawn; and";
(b) after paragraph (b) insert--
"(c) in the circumstances of the particular
application, it is reasonable and
proportionate having regard to
section 498ZZHA.".
(2) After section 498ZZH(1) of the Residential
Tenancies Act 1997 insert--
"(1A) The Tribunal must have regard to the
Director's guidelines when determining an
application for a possession order which is
supported by a notice to vacate.".
(3) In section 498ZZH(4) of the Residential
Tenancies Act 1997--
(a) in paragraph (b), for "vacate." substitute
"vacate; and";
(b) after paragraph (b) insert--
"(c) in the circumstances of the particular
application, it is reasonable and
proportionate having regard to
section 498ZZHA.".
194 New section 498ZZHA inserted
After section 498ZZH of the Residential
Tenancies Act 1997 insert--
"498ZZHA What is reasonable and proportionate
For the purposes of determining whether it is
reasonable and proportionate to make a
possession order, the Tribunal must have
regard to the following--
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(a) whether the matter giving rise to the
possession order is trivial;
(b) whether the matter giving rise to the
possession order was caused by a
person other than the SDA resident;
(c) as the case requires, the behaviour of
the SDA provider or the SDA
provider's agent;
(d) the interests of other SDA residents
living in the SDA enrolled dwelling;
(e) whether suitable alternative
accommodation is likely to be available
for the SDA resident's use;
(f) whether an order other than a
possession order can be made;
(g) whether another course of action is
reasonably available;
(h) any other matter the Tribunal considers
relevant.".
195 Contents of possession order
After section 498ZZJ(1) of the Residential
Tenancies Act 1997 insert--
"(1A) For the purposes of subsection (1)(a), if the
Tribunal makes a possession order for an
application which is supported by a notice to
vacate, in determining the day on which the
SDA resident must vacate the SDA enrolled
dwelling, the Tribunal must take into account
any requirements the SDA resident may have
to access suitable alternative
accommodation.".
196 Order not to be made in certain circumstances
Section 498ZZK(b)(ii) of the Residential
Tenancies Act 1997 is repealed.
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197 Section 498ZZV substituted
For section 498ZZV of the Residential Tenancies
Act 1997 substitute--
"498ZZV Immediate issue of warrant if failure to
pay rent during postponement
On the application of an SDA provider or
mortgagee of an SDA enrolled dwelling, the
Tribunal may order that a warrant of
possession be issued without delay if the
Tribunal is satisfied that, during any period
of postponement specified in an order under
section 498ZZU, an SDA resident has failed
to pay any rent accrued due.".
198 Reclaiming personal documents before disposal
For the penalty at the foot of section 498ZZZA(2)
of the Residential Tenancies Act 1997
substitute--
"Penalty: 150 penalty units in the case of a
natural person;
750 penalty units in the case of a body
corporate.".
199 Disposal of certain goods left behind
(1) For section 498ZZZC(2) of the Residential
Tenancies Act 1997 substitute--
"(2) Despite subsection (1)(a), the SDA enrolled
dwelling owner must not remove and destroy
or dispose of goods that have been left
behind if those goods are prescribed goods.".
(2) Section 498ZZZC(3) of the Residential
Tenancies Act 1997 is repealed.
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200 Section 498ZZZD substituted
For section 498ZZZD of the Residential
Tenancies Act 1997 substitute--
"498ZZZD What must an SDA enrolled dwelling
owner do about goods left behind?
(1) If a former SDA resident leaves behind
goods (other than goods which may be
removed and destroyed or disposed of under
section 498ZZZC), the SDA enrolled
dwelling owner must--
(a) take reasonable steps to give notice, in
the form approved by the Director, to
the former SDA resident that the goods
have been left behind; and
(b) store the goods for a period of at least
14 days, beginning on the day on which
the SDA enrolled dwelling owner gave
the notice to the former SDA resident.
(2) A notice under subsection (1)(a) must
include a statement informing the former
SDA resident of the former SDA resident's
rights and obligations in relation to the goods
left behind.
(3) The SDA enrolled dwelling owner may
remove the goods from the SDA enrolled
dwelling and store them at a safe place.".
201 Section 498ZZZE repealed
Section 498ZZZE of the Residential Tenancies
Act 1997 is repealed.
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202 Sections 498ZZZF and 498ZZZG substituted
For sections 498ZZZF and 498ZZZG of the
Residential Tenancies Act 1997 substitute--
"498ZZZF When SDA enrolled dwelling owner may
sell or dispose of stored goods
(1) An SDA enrolled dwelling owner may sell or
dispose of stored goods if the former SDA
resident or other person who has a lawful
right to the stored goods has not reclaimed
them within 14 days, unless the SDA
enrolled dwelling owner has agreed or been
ordered by the Tribunal to store the goods
for longer than 14 days.
(2) An SDA enrolled dwelling owner who has
agreed or been ordered by the Tribunal to
store stored goods for a period of more than
14 days may sell or dispose of the goods in
any lawful manner after that period if the
former SDA resident or other person who
has a lawful right to the stored goods has not
reclaimed the goods.
498ZZZG Former SDA resident may request
proceeds of sale of goods
(1) A former SDA resident or other person who
has a lawful right to stored goods whose
stored goods are sold under this Division
may request payment of the proceeds of the
sale less the following amounts--
(a) the amount of any storage fee for the
stored goods;
(b) the amount of the reasonable costs of
the sale.
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(2) The former SDA resident or other person
who has a lawful right to the stored goods
must make a request under subsection (1)
within 6 months from the date of the sale.
(3) If the former SDA resident or other person
who has a lawful right to the stored goods
has not made a request under subsection (1)
within 6 months from the date of the sale, the
SDA enrolled dwelling owner must pay into
the Residential Tenancies Fund the proceeds
of the sale less the amounts in subsection
(1)(a) and (b) within 30 days after the end of
that 6 month period.
Penalty: 30 penalty units.".
203 Section 498ZZZH repealed
Section 498ZZZH of the Residential Tenancies
Act 1997 is repealed.
204 Section 498ZZZM substituted
For section 498ZZZM of the Residential
Tenancies Act 1997 substitute--
"498ZZZM What if an SDA enrolled dwelling owner
refuses to store goods for more than
14 days?
If a former SDA resident or other person
who has a lawful right to the goods left
behind requests the SDA enrolled dwelling
owner to store the goods for more than
14 days and the SDA enrolled dwelling
owner refuses, the former SDA resident or
other person may apply to the Tribunal for
an order requiring the SDA enrolled
dwelling owner to store the goods for a
period of more than 14 days.".
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205 What orders can the Tribunal make?
In section 498ZZZN(c) of the Residential
Tenancies Act 1997, for "a declaration"
substitute "an order".
206 Offence relating to entering SDA enrolled dwelling
For the penalty at the foot of section 498ZZZO of
the Residential Tenancies Act 1997 substitute--
"Penalty: 60 penalty units.".
207 Offence to obtain possession etc. of SDA enrolled
dwelling
(1) For the penalty at the foot of section 498ZZZP(1)
of the Residential Tenancies Act 1997
substitute--
"Penalty: 300 penalty units in the case of a
natural person;
750 penalty units in the case of a body
corporate.".
(2) For the penalty at the foot of section 498ZZZP(2)
of the Residential Tenancies Act 1997
substitute--
"Penalty: 300 penalty units in the case of a
natural person;
750 penalty units in the case of a body
corporate.".
208 New section 498ZZZPA inserted
After section 498ZZZP of the Residential
Tenancies Act 1997 insert--
"498ZZZPA Prohibition on letting premises used for
SDA enrolled dwelling after notice
(1) An SDA provider who obtains possession of
an SDA enrolled dwelling in respect of
which a notice to vacate has been given
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under section 498ZX(1)(h) or (ha) must not
enter into, or establish, an agreement under
this Act with a person, to use the part of the
dwelling to which the notice related, as a
residence, before the end of 6 months after
the date on which the notice was given.
Penalty: 150 penalty units in the case of a
natural person;
750 penalty units in the case of a
body corporate.
(2) Subsection (1) does not apply if the Tribunal
determines that--
(a) the SDA enrolled dwelling may be let;
or
(b) an SDA residency agreement may be
entered into or established in respect of
the SDA enrolled dwelling.
(3) Subsection (1) does not apply if--
(a) the dwelling ceases to be an SDA
enrolled dwelling; or
(b) the owner or leaseholder of the SDA
enrolled dwelling ceases to be
registered under the NDIS to be a
registered NDIS provider.".
209 Offence to make false representation--SDA
residency agreement
(1) In the heading to section 498ZZZQ of the
Residential Tenancies Act 1997, after "false"
insert "or fraudulent".
(2) In section 498ZZZQ of the Residential
Tenancies Act 1997 omit "and fraudulent".
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(3) For the penalty at the foot of section 498ZZZQ of
the Residential Tenancies Act 1997 substitute--
"Penalty: 300 penalty units in the case of a
natural person;
750 penalty units in the case of a body
corporate.".
(4) At the end of section 498ZZZQ of the Residential
Tenancies Act 1997 insert--
"(2) A person must not make, in relation to an
SDA residency agreement or a proposed
SDA residency agreement or a right or
duty under this Part, a fraudulent
misrepresentation as to--
(a) a provision of this Part; or
(b) a term included or to be included in
the SDA residency agreement; or
(c) a matter affecting a person's rights
or duties under this Part or an SDA
residency agreement or proposed
SDA residency agreement.
Penalty: 300 penalty units in the case of a
natural person;
750 penalty units in the case of a
body corporate.".
210 Offence to persuade person not to exercise rights or
take proceedings
For the penalty at the foot of section 498ZZZR of
the Residential Tenancies Act 1997 substitute--
"Penalty: 300 penalty units in the case of a
natural person;
750 penalty units in the case of a body
corporate.".
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211 Offence to aid, abet, counsel or procure commission
of an offence
For the penalty at the foot of section 498ZZZS of
the Residential Tenancies Act 1997 substitute--
"Penalty: 300 penalty units in the case of a
natural person;
750 penalty units in the case of a body
corporate.".
212 Certain penalties prohibited
For the penalty at the foot of section 498ZZZT of
the Residential Tenancies Act 1997 substitute--
"Penalty: 300 penalty units in the case of a
natural person;
750 penalty units in the case of a body
corporate.".
Division 3--Other miscellaneous amendments
213 Notice of revocation of registration or enrolment
(1) In section 498DA(1)(b)(iii) of the Residential
Tenancies Act 1997--
(a) for "tenancy agreement" substitute
"residential rental agreement";
(b) for "landlord" substitute "residential rental
provider";
(c) for "section 237" substitute "section 91ZB".
(2) In section 498DA(2)(b)(iii) of the Residential
Tenancies Act 1997--
(a) for "tenancy agreement" substitute
"residential rental agreement";
(b) for "landlord" substitute "residential rental
provider";
(c) for "section 237" substitute "section 91ZB".
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214 Service of documents
At the foot of section 506(3A) of the Residential
Tenancies Act 1997 insert--
"Note
See also section 498E for further requirements in respect of
notices given under Part 12A.".
Division 4--SDA residents--residential rental
agreement
215 New Subdivision 3A inserted in Division 9 of Part 2
After Subdivision 3 of Division 9 of Part 2 of the
Residential Tenancies Act 1997 insert--
"Subdivision 3A--Termination of
residential rental agreement because of
coercion or deception of SDA resident
91YA Application for termination of residential
rental agreement because of coercion or
deception of SDA resident
(1) An SDA resident who is a party to a
residential rental agreement may apply to the
Tribunal for any of the following orders on a
ground specified in subsection (2)--
(a) an order terminating the existing
residential rental agreement;
(b) an order--
(i) terminating the existing residential
rental agreement; and
(ii) requiring the SDA provider who is
a residential rental provider to
enter a new residential rental
agreement with the person who is
an SDA resident and other persons
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(if any) specified in the
application;
(c) if all the renters under the existing
residential rental agreement are SDA
residents, an order--
(i) terminating the residential rental
agreement; and
(ii) requiring the SDA provider who is
a residential rental provider to
enter into, or establish, an SDA
residency agreement with each
person who is a renter under the
existing residential rental
agreement.
(2) The following grounds are specified for the
purposes of subsection (1)--
(a) the SDA resident was coerced or
deceived into entering into the
residential rental agreement;
(b) the SDA resident did not receive an
information statement as required under
section 498D before entering into the
residential rental agreement;
(c) the SDA resident was given an
information statement under
section 498D but did not receive an
explanation of that statement under
section 498E.
(3) For the purposes of a proceeding for an order
under subsection (1), each of the following
persons is a party to the proceeding--
(a) the SDA resident or one of the
following persons who may make an
application on behalf of the SDA
resident--
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(i) the Director;
(ii) the SDA resident's guardian
(if any);
(iii) the SDA resident's administrator
(if any);
(iv) the Public Advocate;
(b) the SDA provider;
(c) any other party to the existing
residential rental agreement;
(d) any other person specified in the
application as a party.
(4) An application under subsection (1) may be
made without the consent of the SDA
provider or any other party to the existing
residential rental agreement.
(5) The Tribunal must hear an application under
subsection (1)--
(a) within 3 business days of the
application being made; or
(b) if the application cannot be heard
within the period referred to in
paragraph (a), no later than the next
available sitting day of the Tribunal
after the end of that 3 business day
period.
(6) If an application is made under subsection
(1), any other action that could otherwise be
taken in respect of the existing residential
rental agreement is stayed until the Tribunal
determines the application.
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91YB Tribunal orders
(1) On an application under section 91YA(1),
the Tribunal may--
(a) order the dismissal of the application;
or
(b) if satisfied that the SDA resident was
coerced or deceived into entering a
residential rental agreement or that the
SDA resident did not receive an
information statement under
section 498D or an explanation of
the information statement under
section 498E--
(i) order the termination of the
existing residential rental
agreement; or
(ii) order the termination of the
existing residential rental
agreement and that the SDA
provider enter into a new
residential rental agreement with
the SDA resident and other
persons (if any) specified in the
application; or
(iii) if all renters to the agreement are
SDA residents, order the
termination of the existing
residential rental agreement and
require the SDA provider to enter
into or establish an SDA residency
agreement with each SDA
resident.
(2) If the Tribunal makes an order under
subsection (1)(b), the Tribunal must specify
the date on which the existing residential
rental agreement terminates.
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(3) For the purposes of subsection (1)(b), the
Tribunal may--
(a) adjourn the application to determine a
termination date in consultation with
the renters party to the existing
residential rental agreement; or
(b) adjourn the application to allow the
parties to the agreement to enter into a
new residential rental agreement or to
enter into, or establish, one or more
SDA residency agreements
(as appropriate); or
(c) if, during an adjournment the parties to
the residential rental agreement are--
(i) unable to enter into a new
residential rental agreement, direct
the parties to enter into a new
residential rental agreement on
terms declared by the Tribunal; or
(ii) unable to enter into, or establish,
one or multiple SDA residency
agreements (as appropriate), direct
the parties to enter into one or
multiple new SDA residency
agreements (as appropriate) on
terms declared by the Tribunal.
(4) If the Tribunal makes an order under
subsection (1)(b), having regard to any
financial disadvantage suffered by the renter
and regardless of any loss or damage
suffered by the SDA provider, the Tribunal
may--
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(a) order that any bond paid by the renter
under the existing residential rental
agreement be paid out by the Authority
to the renter and, if there is more than
one renter under the existing residential
rental agreement, apportion the bond to
be paid out by the Authority between
the renters; and
(b) revoke any compensation orders that
have been issued against the renter.
(5) In determining an application under
section 91YA(1), the Tribunal may take into
account the Director's guidelines.".
216 Reduced period of notice of intention to vacate in
certain circumstances
(1) In section 91ZB(1) of the Residential Tenancies
Act 1997--
(a) in paragraph (f), for "2010." substitute
"2010; or";
(b) after paragraph (f) insert--
"(g) the renter, who is an SDA resident, has
been given a notice under
section 498DA.".
(2) After section 91ZB(3) of the Residential
Tenancies Act 1997 insert--
"(3A) A renter to whom subsection (1)(g) applies
may give a residential rental provider who is,
or was, an SDA provider, a notice of
intention to vacate a premises that is, or was,
an SDA enrolled dwelling, specifying a
termination date that is not less than 14 days
after the date on which the notice is given.".
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217 New section 420D inserted
Before section 421 of the Residential Tenancies
Act 1997 insert--
"420D Order by Tribunal if renter who is SDA
resident is coerced etc.
If, on an application made to the Tribunal by
a renter who is an SDA resident under
section 91YA, the Tribunal makes an order
in accordance with section 91YB(4), the
Authority must pay out the bond to the renter
or renters (as appropriate) in accordance with
the order of the Tribunal.".
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Part 4--Amendment of other Acts
Division 1--Amendment of Disability Service
Safeguards Act 2018
218 Definitions
In section 3(1) of the Disability Service
Safeguards Act 2018--
(a) insert the following definitions--
"clearance means a current and operative
decision made by an NDIS worker
screening unit in relation to a person
who has undergone an NDIS worker
screening check that the person is
cleared to work with persons with a
disability;
exclusion means a current and operative
decision made by an NDIS worker
screening unit in relation to a person
who has undergone an NDIS worker
screening check that the person is
excluded from working with persons
with a disability;
NDIS worker screening unit means the
person or body responsible for
conducting NDIS worker screening
checks for a State or Territory under its
NDIS worker screening legislation;";
(b) the definition of NDIS worker screening
agency is repealed;
(c) in the definition of NDIS worker screening
check clearance omit "clearance".
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219 Delegation
For section 20(c) of the Disability Service
Safeguards Act 2018 substitute--
"(c) a person referred to in section 32A(1)
or (2);".
220 Establishment and constitution of the Victorian
Disability Worker Commission
Section 21(2)(d) of the Disability Service
Safeguards Act 2018 is repealed.
221 Repeal of section 24
Section 24 of the Disability Service Safeguards
Act 2018 is repealed.
222 Delegation
In section 25 of the Disability Service
Safeguards Act 2018, for "employee of the
Commission or any person engaged by the
Commission" substitute "person referred to in
section 32A(1) or (2)".
223 Appointment of Victorian Disability Worker
Commissioner
After section 26(2) of the Disability Service
Safeguards Act 2018 insert--
"(3) The Public Administration Act 2004
(other than Part 3, except as provided by
section 16 of that Act) applies to the
Commissioner in respect of the office of the
Commissioner.".
224 Duties, functions and powers of the Commissioner
In section 27(1)(c) of the Disability Service
Safeguards Act 2018, after "under " insert
"this or".
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225 New section 32A inserted
After section 32 of the Disability Service
Safeguards Act 2018 insert--
"32A Staff
(1) There may be employed under Part 3 of the
Public Administration Act 2004 any
persons who are necessary to assist the
Commissioner or the Commission in
exercising a power or performing a duty or
function under this or any other Act.
(2) The Commissioner may engage a person
with suitable qualifications or experience to
assist the Commissioner or Commission in
the exercise of a power or the performance
of a duty or function under this or any other
Act.".
226 Investigation of complaints by Commission
(1) For section 119(1)(b)(i) and (ii) of the Disability
Service Safeguards Act 2018 substitute--
"(i) has been issued an exclusion by an NDIS
worker screening unit; or
(ii) has had a clearance suspended or revoked by
an NDIS worker screening unit; or".
(2) In section 119(1)(b)(iv) of the Disability Service
Safeguards Act 2018 omit "clearance".
227 Power of Commission to conduct a Commission
initiated investigation
(1) For section 121(b)(i) and (ii) of the Disability
Service Safeguards Act 2018 substitute--
"(i) has been issued an exclusion by an NDIS
worker screening unit; or
(ii) has had a clearance suspended or revoked by
an NDIS worker screening unit; or".
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(2) In section 121(b)(iv) of the Disability Service
Safeguards Act 2018 omit "clearance".
228 Grounds on which interim prohibition order may be
made
(1) For section 131(c) of the Disability Service
Safeguards Act 2018 substitute--
"(c) the unregistered disability worker has been
issued an exclusion or has had a clearance
suspended or revoked by an NDIS worker
screening unit;".
(2) In section 131(d) of the Disability Service
Safeguards Act 2018 omit "clearance".
229 Grounds on which prohibition order may be made
(1) In section 133(c) of the Disability Service
Safeguards Act 2018 omit "an NDIS worker
screening check".
(2) In section 133(d) of the Disability Service
Safeguards Act 2018 omit "NDIS worker
screening check".
(3) In section 133(e) of the Disability Service
Safeguards Act 2018 omit "clearance".
230 Registered disability worker or disability student to
give Board notice of certain events
In section 207(3) of the Disability Service
Safeguards Act 2018, in the definition of
relevant event--
(a) in paragraph (a)(x) omit "an NDIS worker
screening check";
(b) in paragraph (a)(xi) omit "NDIS worker
screening check";
(c) in paragraph (a)(xiii) omit "clearance".
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231 Board may ask registered disability worker for
information
In section 209(1) of the Disability Service
Safeguards Act 2018--
(a) in paragraph (h) omit "an NDIS worker
screening check";
(b) in paragraph (i) omit "NDIS worker
screening check";
(c) in paragraph (j) omit "clearance".
232 Disclosure of information to other relevant entities
In section 241(2) of the Disability Service
Safeguards Act 2018, in the definition of
relevant entity, in paragraph (b), for "agency"
substitute "unit".
233 NDIS worker screening check clearance
(1) In the heading to section 257 of the Disability
Service Safeguards Act 2018 omit "clearance".
(2) In section 257(1)(a) and (b) and (2)(a) and (b) of
the Disability Service Safeguards Act 2018--
(a) for "agency" substitute "unit";
(b) omit "clearance".
(3) In section 257(3) of the Disability Service
Safeguards Act 2018, for "agency" substitute
"unit".
234 Repeal of sections 300 and 301
Sections 300 and 301 of the Disability Service
Safeguards Act 2018 are repealed.
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235 Section 309 substituted
For section 309 of the Disability Service
Safeguards Act 2018 substitute--
'309 Regulations
After section 511(1)(h) of the Residential
Tenancies Act 1997 insert--
"(ha) prescribing a standard form of SDA
residency agreement;
(hb) prescribing a person or body to which
a matter relating to an SDA enrolled
dwelling may be referred;
(hc) prescribing a person or body for the
purposes of section 505C(4);".'.
236 Statute law revision
(1) In section 302 of the Disability Service
Safeguards Act 2018, in the proposed
section 446(bc) to be inserted in the Residential
Tenancies Act 1997, for 'dwelling; and."'
substitute 'dwelling; and"'.
(2) In section 316(2) of the Disability Service
Safeguards Act 2018, for 'or "SDA' substitute
'"or SDA'.
Division 2--Amendment of Residential Tenancies
Amendment Act 2018
237 Definitions
(1) In section 5(1) of the Residential Tenancies
Amendment Act 2018--
(a) in the definition of breach of duty notice
proposed to be inserted in section 3(1) of the
Residential Tenancies Act 1997, after
"notice" insert ", except in Division 9 of
Part 12A,";
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(b) for paragraph (a) of the definition of fair
wear and tear proposed to be inserted in
section 3(1) of the Residential Tenancies
Act 1997 substitute--
"(a) reasonable use of--
(i) the premises by a renter or a
visitor; or
(ii) the SDA enrolled dwelling by an
SDA resident; and";
(c) in the definition of notice of intention to
vacate proposed to be inserted in section 3(1)
of the Residential Tenancies Act 1997, after
paragraph (d) insert--
"(e) in relation to an SDA enrolled dwelling
under an SDA residency agreement, a
notice of intention to vacate under
section 498ZZA;";
(d) in the definition of notice to vacate proposed
to be inserted in section 3(1) of the
Residential Tenancies Act 1997, after
paragraph (d) insert--
"(e) in relation to an SDA enrolled dwelling
under an SDA residency agreement, a
notice to vacate under section 498ZX;";
(e) in the definition of standard form proposed
to be inserted in section 3(1) of the
Residential Tenancies Act 1997, for
"Part 12" substitute "Parts 12 and 12A".
(2) Section 5(3)(e) of the Residential Tenancies
Amendment Act 2018 is repealed.
238 New section 486A inserted
In section 318 of the Residential Tenancies
Amendment Act 2018, in proposed new
section 486A to be inserted in the Residential
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Tenancies Act 1997, for "and 206AZI(e)"
substitute ", 206AZI(e) and 498ZX(1)(h), (ha)
and (k)".
239 Repeal of sections 387 and 388
Sections 387 and 388 of the Residential
Tenancies Amendment Act 2018 are repealed.
Division 3--Amendment of Crimes (Mental
Impairment and Unfitness to be Tried) Act 1997
240 Definitions
In section 3(1) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997--
(a) in the definition of appropriate place--
(i) in paragraph (b), for "facility; or"
substitute "facility;";
(ii) paragraph (c) is repealed;
(b) in the definition of forensic resident omit
"or a residential institution"
(wherever occurring);
(c) the definition of residential institution is
repealed.
241 Supervision orders
In section 26(9) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 omit "or a residential institution".
242 Warrant to arrest person subject to custodial
supervision order who leaves Victoria
(1) In section 30B(1B)(a) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 omit "or a residential institution".
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(2) In section 30B(3) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997, for "service, residential treatment
facility or residential institution" substitute
"service or residential treatment facility".
243 Reports on mental condition of persons declared
liable to supervision
In section 41(4) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997, in the definition of appropriate
person--
(a) in paragraph (b)(i), for "facility, a residential
institution" substitute "facility";
(b) paragraph (b)(ii)(B) is repealed.
244 Certificate of available services
(1) In section 47(1)(a)(i) and (ii) of the Crimes
(Mental Impairment and Unfitness to be Tried)
Act 1997, for "service, a residential treatment
facility or a residential institution" substitute
"service or a residential treatment facility".
(2) In section 47(1)(b)(i) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997, for "service, a residential treatment
facility or a residential institution" substitute
"service or a residential treatment facility".
(3) In section 47(1)(b)(ii) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 omit "or a residential institution".
245 What are the surrounds?
(1) In section 52(1) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997, for "service, a residential treatment
facility or a residential institution" substitute
"service or a residential treatment facility".
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(2) In section 52(2) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997--
(a) for "service, a residential treatment facility
or a residential institution" substitute
"service or a residential treatment facility";
(b) for "service, residential treatment facility or
residential institution" substitute "service or
residential treatment facility".
246 Transfer of persons from a participating State to
Victoria
(1) In the note at the foot of section 73E(3) of the
Crimes (Mental Impairment and Unfitness to
be Tried) Act 1997, for "service, a residential
treatment facility or a residential institution"
substitute "service or a residential treatment
facility".
(2) In section 73E(4) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997--
(a) in paragraph (b) omit "or a residential
institution";
(b) in paragraph (d) omit "or a residential
institution";
(c) in paragraph (d) omit "or the residential
institution".
247 Interim disposition order
In section 73K(8)(b) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997 omit "or a residential institution".
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248 Definitions
In section 3(1) of the Mental Health Act 2014--
(a) for paragraph (b) of the definition of mental
health service provider substitute--
"(b) a publicly funded mental health
community support service--
to the extent it provides services not funded
by the National Disability Insurance Scheme
within the meaning of the NDIS Act;";
(b) insert the following definitions--
"NDIS Act means the National Disability
Insurance Scheme Act 2013 of the
Commonwealth;
NDIS Commission means the NDIS Quality
and Safeguards Commission
established under section 181A of the
NDIS Act;".
249 Functions of the Commissioner
(1) In section 228(j) of the Mental Health Act 2014,
after "complaints and to" insert
"provide information and".
(2) After section 228(j)(iv) of the Mental Health
Act 2014 insert--
"(v) the Agency within the meaning of the NDIS
Act;
(vi) the NDIS Commission;".
250 Referred complaints
In section 233(1) of the Mental Health
Act 2014--
(a) in paragraph (j), for "1973." substitute
"1973;";
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(b) after paragraph (j) insert--
"(k) the NDIS Commission.".
251 New Division 2 inserted in Part 16A
(1) Before section 428A of the Mental Health
Act 2014 insert--
"Division 1--Mental Health Amendment
Act 2015".
(2) After section 428A of the Mental Health
Act 2014 insert--
"Division 2--Disability (National
Disability Insurance Scheme Transition)
Amendment Act 2019
429 Definitions
In this Division--
Amending Act means the Disability
(National Disability Insurance
Scheme Transition) Amendment
Act 2019;
commencement day means the day on which
section 248 of the Amending Act
comes into operation;
National Disability Insurance Scheme
means the National Disability Insurance
Scheme within the meaning of the
NDIS Act.
430 Complaints to the Commissioner
(1) Despite the amendments made by
section 248 of the Amending Act, on and
after the commencement day, the
Commissioner must continue to perform the
Commissioner's functions under Part 10 for
the purposes of dealing with or resolving a
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complaint in respect of a mental health
service provider providing services funded
by the National Disability Insurance Scheme
before 1 July 2019 if--
(a) the complaint is made before the
commencement day; or
(b) the complaint is made on or after the
commencement day and the complaint
relates to matters that occurred before
1 July 2019.
(2) Despite the amendments made by
section 248 of the Amending Act, on and
after the commencement day, the
Commissioner must continue to perform the
Commissioner's functions under Part 10 for
the purposes of dealing with or resolving a
complaint in respect of a mental health
service provider providing services funded
by the National Disability Insurance Scheme
on and after 1 July 2019 if--
(a) the complaint is made before the
service that is the subject of the
complaint provided by the mental
health service provider began being
funded by the National Disability
Insurance Scheme; or
(b) the complaint is made on or after the
day the service that is the subject of the
complaint provided by the mental
health service provider began being
funded by the National Disability
Insurance Scheme and the complaint
relates to matters that occurred before
the service began being funded by the
National Disability Insurance Scheme.
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431 The chief psychiatrist
(1) Despite the amendments made by
section 248 of the Amending Act, on and
after the commencement day, the chief
psychiatrist must continue to perform the
chief psychiatrist's functions under
Division 2 of Part 7 for the purposes of
conducting and completing an investigation
into the provision of mental health services
by a mental health service provider
providing services funded by the National
Disability Insurance Scheme before 1 July
2019 if--
(a) the investigation begins before the
commencement day; or
(b) the investigation begins on or after the
commencement day and the
investigation relates to the provision of
mental health services provided before
1 July 2019.
(2) Despite the amendments made by
section 248 of the Amending Act, on and
after the commencement day, the chief
psychiatrist must continue to perform
the chief psychiatrist's functions under
Division 2 of Part 7 for the purposes of
conducting and completing an investigation
into the provision of mental health services
by a mental health service provider
providing services funded by the National
Disability Insurance Scheme on and after 1
July 2019 if--
(a) the investigation begins before the day
the service that is the subject of the
investigation provided by the mental
health service provider began being
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funded by the National Disability
Insurance Scheme; or
(b) the investigation begins on or after the
day the service that is the subject of the
investigation provided by the mental
health service provider began being
funded by the National Disability
Insurance Scheme and the investigation
relates to matters that occurred before
the day the service began being funded
by the National Disability Insurance
Scheme.
432 Community visitors
Despite the amendments made by
section 248 of the Amending Act, on and
after the commencement day, a community
visitor may continue to perform functions
under section 216(b) and exercise related
powers in Part 9 to assist persons receiving
mental health services provided by a mental
health service provider funded by the
National Disability Insurance Scheme
before, on or after 1 July 2019, at prescribed
premises, if the assistance provided by the
community visitor relates to matters that
arose before the commencement day.".
Division 5--Amendment of other Acts
252 Child Wellbeing and Safety Act 2005
After section 41H(1)(d) of the Child Wellbeing
and Safety Act 2005 insert--
"(da) the Commissioner of the NDIS Quality and
Safeguards Commission within the meaning
of Chapter 6A of the National Disability
Insurance Scheme Act 2013 of the
Commonwealth;".
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253 Children's Services Act 1996
In section 5(1) of the Children's Services
Act 1996--
(a) in paragraph (d), for "2006." substitute
"2006;";
(b) after paragraph (d) insert--
"(e) recipients of supports or services
provided by a registered NDIS provider
within the meaning of the National
Disability Insurance Scheme Act 2013
of the Commonwealth.".
254 Children, Youth and Families Act 2005
(1) In section 3(1) of the Children, Youth and
Families Act 2005 insert the following
definitions--
"NDIS provider has the same meaning as in the
National Disability Insurance Scheme Act
2013 of the Commonwealth;
registered NDIS provider has the same meaning
as in the National Disability Insurance
Scheme Act 2013 of the Commonwealth;".
(2) In section 3(1) of the Children, Youth and
Families Act 2005, in the definition of
information holder, after paragraph (l) insert--
"(la) the person in charge of an NDIS provider or
registered NDIS provider;".
(3) After section 161(2)(g) of the Children, Youth
and Families Act 2005 insert--
"(ga) by a registered NDIS provider providing to
the child under the NDIS short term
accommodation and assistance or supported
independent living; or
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(gb) by a disability service provider within the
meaning of the Disability Act 2006; or".
(4) After section 263(1)(fa) of the Children, Youth
and Families Act 2005 insert--
"(fb) the placement of the child with a registered
NDIS provider providing to the child under
the NDIS short term accommodation and
assistance or supported independent living;
or".
(5) After section 597(1)(c)(vi) of the Children,
Youth and Families Act 2005 insert--
"(vii) with a registered NDIS provider; or".
(6) In section 597(4)(a) of the Children, Youth and
Families Act 2005, after "with" insert
"a registered NDIS provider, disability service
provider (within the meaning of the Disability
Act 2006) or".
255 Commission for Children and Young People
Act 2012
(1) In section 3 of the Commission for Children and
Young People Act 2012, after paragraph (c) of
the definition of human service insert--
"(ca) a registered NDIS provider within the
meaning of the National Disability Insurance
Scheme Act 2013 of the Commonwealth;
or".
(2) After section 53(1)(d) of the Commission for
Children and Young People Act 2012 insert--
"(da) the Commissioner of the NDIS Quality and
Safeguards Commission referred to in
section 181C of the National Disability
Insurance Scheme Act 2013 of the
Commonwealth;".
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256 Corrections Act 1986
(1) Section 56AB(1)(b) of the Corrections Act 1986
is repealed.
(2) In section 56AB(2)(c) of the Corrections
Act 1986 omit "(1)(b) or ".
257 Crimes Act 1958
(1) In section 52A of the Crimes Act 1958, in the
definition of residential service, after
paragraph (b) insert--
"(ba) an SDA enrolled dwelling within the
meaning of the Residential Tenancies
Act 1997; and".
(2) In section 52A of the Crimes Act 1958, in the
definition of service provider, after paragraph (a)
insert--
"(ab) a registered NDIS provider within the
meaning of the National Disability Insurance
Scheme Act 2013 of the Commonwealth;
and".
258 Criminal Procedure Act 2009
In section 3 of the Criminal Procedure
Act 2009--
(a) in paragraph (e) of the definition of in
detention omit "a residential institution or";
(b) in paragraph (e) of the definition of
responsible person omit "a residential
institution or".
259 Family Violence Protection Act 2008
In Schedule 1 to the Family Violence Protection
Act 2008, in item 4, for "128" substitute
"132ZC".
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260 Gambling Regulation Act 2003
In section 10.3.6(b) of the Gambling Regulation
Act 2003 omit "residential institutions and".
261 Guardianship and Administration Act 1986
(1) After section 18A(5)(c) of the Guardianship and
Administration Act 1986 insert--
"(ca) a short-term accommodation and assistance
dwelling within the meaning of section 3(1)
of the Disability Act 2006;
(cb) an SDA enrolled dwelling in respect of
which an SDA resident resides under an
SDA residency agreement within the
meaning of the Residential Tenancies
Act 1997;".
(2) In section 18A(5)(c) of the Guardianship and
Administration Act 1986 omit
", residential institution".
262 Guardianship and Administration Act 2019
(1) In section 17(7) of the Guardianship and
Administration Act 2019, after paragraph (c) in
the definition of institution insert--
"(ca) a short-term accommodation and assistance
dwelling within the meaning of section 3(1)
of the Disability Act 2006;
(cb) an SDA enrolled dwelling in respect of
which an SDA resident resides under an
SDA residency agreement within the
meaning of the Residential Tenancies
Act 1997;".
(2) In section 17(7) of the Guardianship and
Administration Act 2019, in paragraph (a) of the
definition of institution omit
", residential institution".
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263 Health Complaints Act 2016
In section 3(1) of the Health Complaints
Act 2016, after paragraph (d) in the definition of
relevant law insert--
"(e) the National Disability Insurance Scheme
Act 2013 of the Commonwealth;".
264 Health Records Act 2001
(1) In section 3(1) of the Health Records Act 2001
insert the following definition--
"NDIS Commissioner means Commissioner of
the NDIS Quality and Safeguards
Commission established under section 181A
of the National Disability Insurance Scheme
Act 2013 of the Commonwealth;".
(2) In section 51(3) of the Health Records
Act 2001--
(a) in paragraph (c), for "1973--" substitute
"1973; or";
(b) after paragraph (c) insert--
"(d) the National Disability Insurance
Scheme Act 2013 of the
Commonwealth--";
(c) for "or the Ombudsman" substitute
", the Ombudsman or the NDIS
Commissioner".
265 Independent Broad-based Anti-corruption
Commission Act 2011
(1) In section 3(1) of the Independent Broad-based
Anti-corruption Commission Act 2011, in
paragraph (e) of the definition of detained person,
for "or residential treatment facility" substitute
", residential treatment facility or SDA enrolled
dwelling".
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(2) In section 3(1) of the Independent Broad-based
Anti-corruption Commission Act 2011, in
paragraph (e) of the definition of detained person
omit ", residential institution".
266 Medical Treatment Planning and Decisions Act 2016
In section 3(1) of the Medical Treatment
Planning and Decisions Act 2016, in the
definition of health facility--
(a) in paragraph (c), for "group home"
substitute "residential service";
(b) after paragraph (c) insert--
"(ca) an SDA enrolled dwelling within the
meaning of the Residential Tenancies
Act 1997; and".
267 Ombudsman Act 1973
In section 28(1) and (1A) of the Ombudsman
Act 1973 omit ", residential institution".
268 Public Administration Act 2004
After section 16(1)(ke) of the Public
Administration Act 2004 insert--
"(kf) the Victorian Disability Worker
Commissioner in relation to the office of the
Commissioner under the Disability Service
Safeguards Act 2018;".
269 Sentencing Act 1991
(1) In section 80(3)(b) and (5) of the Sentencing
Act 1991, after "Department of" insert
"Health and".
(2) In section 82AA of the Sentencing Act 1991,
after "Department of" (wherever occurring) insert
"Health and".
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270 Serious Offenders Act 2018
(1) In section 284(6) of the Serious Offenders
Act 2018--
(a) in paragraph (s) of the definition of relevant
Act, for "Commonwealth;" substitute
"Commonwealth; or";
(b) in the definition of relevant Act, after
paragraph (s) insert--
"(t) the National Disability Insurance
Scheme Act 2013 of the
Commonwealth;";
(c) in the definition of relevant person, after
paragraph (zh) insert--
"(zha) an NDIS provider, and a registered
NDIS provider, within the meaning of
the National Disability Insurance
Scheme Act 2013 of the
Commonwealth; or".
(2) In section 287(2) of the Serious Offenders
Act 2018--
(a) in paragraph (e), for "2014." substitute
"2014; or";
(b) after paragraph (e) insert--
"(f) a registered NDIS provider within the
meaning of the National Disability
Insurance Scheme Act 2013 of the
Commonwealth.".
271 Summary Offences Act 1966
In item 3 of Schedule 1 to the Summary Offences
Act 1966 omit ", residential institution".
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272 Working with Children Act 2005
After section 42B(2) of the Working with
Children Act 2005 insert--
"(3) Nothing in this Act prevents the Secretary
notifying the Secretary to the Department of
Health and Human Services of any
information about a person who holds a
current assessment notice or who has made
an application for an assessment notice if
that information is relevant to assessing the
person's suitability to work with persons with
a disability or NDIS participants within the
meaning of the Disability Act 2006.".
273 Victorian Civil and Administrative Tribunal
Act 1998
In Schedule 2 to the Victorian Civil and
Administrative Tribunal Act 1998, for
"section 355 of the Residential Tenancies
Act 1997" substitute "section 355 or 498ZZR of
the Residential Tenancies Act 1997".
274 Victorian Inspectorate Act 2011
(1) In section 3(1) of the Victorian Inspectorate
Act 2011, in paragraph (e) of the definition of
detained person, after "residential service," insert
"SDA enrolled dwelling,".
(2) In section 3(1) of the Victorian Inspectorate
Act 2011, in paragraph (e) of the definition of
detained person omit ", residential institution".
275 Voluntary Assisted Dying Act 2017
In section 3(1) of the Voluntary Assisted Dying
Act 2017, after paragraph (c) of the definition of
professional care services insert--
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"(d) services provided by a registered NDIS
provider within the meaning of the National
Disability Insurance Scheme Act 2013 of the
Commonwealth;".
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Part 5--Repeal of this Act
276 Repeal of this Act
This Act is repealed on 1 July 2021.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
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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 the Residential Tenancies Act 1997 and
to make consequential and other amendments to other Acts to further
provide for the transition to the National Disability Insurance Scheme
and for other purposes."
By Authority. Government Printer for the State of Victoria.
210
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