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Disability Amendment Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 states the purposes of the Bill. The main purpose is to amend
the Disability Act 2006 to provide for investigations by the
Disability Services Commissioner (Commissioner) into
complaints, about the provision of certain services to persons
with a disability, abuse and neglect in the provision of certain
services to persons with a disability, and matters referred to the
Commissioner by the Minister or Secretary. The Bill will also
provide for minor and related matters.
Clause 2 is the commencement provision. It provides that the Bill comes
into operation on the day after the Bill receives Royal Assent.
Clause 3 provides that in the Bill, Principal Act means the Disability
Act 2006.
Part 2--Amendment of the Disability Act 2006
Clause 4 inserts new definitions into section 3 of the Principal Act.
Key definitions are--
accountability investigation will mean--
• an investigation into a complaint under section 118; or
• an initiated investigation which is an investigation
initiated by the Disability Services Commissioner
under new section 128B; or
581384 1 BILL LA INTRODUCTION 24/5/2017
• a referral investigation under new section 128I(1)
which is an investigation referred by the Minister or
Secretary to the Disability Services Commissioner in
which notices to take action may be issued; or
• a follow up investigation which is an investigation
under new section 128R(1) into what actions, if
any, a service provider has taken on completion of
a complaints investigation, referral investigation or
initiated investigation.
exempt service provider means a disability service provider
or regulated service provider, or a class of same, who is
exempt, or that is exempt by regulations from the scope of
the Commissioner's functions under Division 6 and new
Divisions 6A, 6B or 6C of Part 6 of the Principal Act.
follow up investigation means an investigation under new
section 128R(1) into a failure by a service provider to take
any action set out in a notice to take action.
individual initiated investigation means an investigation initiated
by the Commissioner under new section 128B(1)(b) into an
individual case of abuse or neglect of a person with a disability
when receiving services from a disability service provider or a
regulated service provider.
initiated investigation means an investigation initiated by the
Commissioner under new section 128B(1) regarding individual
or systemic issues of abuse and neglect of persons with a
disability when receiving specified services.
notice to take action means a notice given by the Commissioner
to a service provider under--section 119(1)(a) of the Principal
Act that specifies action to be taken under section 119(1)(c) to
remedy a complaint; new section 128F that specifies action to
be taken under new section 128G resulting from an initiated
investigation; or new section 128N that specifies action to be
taken under section 128M resulting from a referral investigation.
prescribed service provider means a person who provides
services to a person with a disability specifically for the support
of that person who is prescribed by regulations, or belongs to a
class of service provider prescribed by regulations.
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referral investigation means an investigation referred by
the Minister or Secretary to the Commissioner under new
section 128I(2).
regulated disability service means a service provided by a
contracted service provider, a service provided by a funded
service provider, or a service provided specifically for the
support of a person with a disability by a prescribed service
provider.
regulated service provider means a contracted service provider,
funded service provider or a prescribed service provider.
systemic initiated investigation means an investigation initiated
by the Commissioner on the Commissioner's own initiative under
new section 128B(1)(a) into persistent or recurring systemic
issues regarding abuse or neglect in the provision of specified
services to persons with a disability.
Subclause (2) repeals the definition of Minister in section 3(1)
of the Principal Act. That definition is obsolete and no longer
needed as the definition can be obtained from section 38 of the
Interpretation of Legislation Act 1984.
Subclause (3) amends the current definition of authorised
officer in section 3(1) of the Principal Act. Paragraph (a) of
the definition provides that authorised officer means a person
appointed as an authorised officer by the Commissioner under
new Division 8 of Part 6. Paragraph (b) of the definition
provides that authorised officer means, other than in Part 6, a
person appointed as an authorised officer of the Secretary under
section 207 of the Principal Act.
Clause 5 amends the principles in section 5 of the Principal Act.
Subclause (1) amends section 5(3) of the Principal Act.
Subclause (1)(a) broadens the scope of the principles in
section 5(3) to capture regulated disability services, in
addition to disability services.
Subclause (1)(b) inserts new paragraphs (ma) and (mb) into
section 5(3) of the Principal Act to give effect to the principle
of zero tolerance of abuse in the provision of disability services
and regulated disability services to persons with a disability.
3
Subclause (2) amends section 5(5) of the Principal Act to
broaden the scope of section 5(5) to capture regulated disability
services in addition to disability services.
Clause 6 amends the functions of the Commissioner in section 16 of
the Principal Act to take into account the Commissioner's new
powers to deal with complaints relating to prescribed service
providers and conduct initiated and referral investigations.
Subclause (a) substitutes paragraph (a) to provide that the
Commissioner has the function to investigate complaints
about disability services and regulated disability services.
Currently section 16(1)(a) only reflects the Commissioner's
function in investigating complaints relating to disability
services.
Subclause (b) inserts new paragraph (ba) which reflects the
Commissioner's new function to review and identify causes of
abuse and neglect in disability services and regulated disability
services and suggest ways of removing and minimising those
causes.
Subclause (c) broadens the Commissioner's current function
under paragraph (c) to reflect that the Commissioner may now
investigate matters referred to the Commissioner by the Minister
or Secretary.
Subclause (d) inserts new paragraph (ca) to provide the
Commissioner with the function to conduct investigations
into the provision of services to persons with a disability as
specified in the Principal Act.
Subclause (e) broadens the Commissioner's current function
under paragraph (d) to include conciliation of a complaint made
in relation to a funded service provider, a contracted service
provider and a prescribed service provider. Currently, it only
applies to disability service providers.
Subclause (f) broadens the Commissioner's current function
in paragraph (e) to include publication of procedures for
accountability investigations. Currently it only applies to
complaints procedures.
Subclause (g) broadens paragraph (f) so that the Commissioner's
functions include maintaining a record of all investigations
conducted. Currently it only applies to complaints received.
4
Subclause (h) repeals paragraph (g). Paragraph (g) requires
the Commissioner to publish at prescribed intervals information
about complaints. This function is no longer needed as
regulations have not been made prescribing the intervals and
section 19, as amended by the Bill, and new Division 9 of Part 6
captures all information to be published on complaints and
investigations.
Subclause (i) broadens paragraph (h) so that the Commissioner's
functions include considering ways to improve complaints
systems of regulated service providers. Currently it only refers
to complaints systems of disability service providers.
Subclause (j) repeals paragraph (l). That paragraph refers to
functions determining actions to be taken by disability service
providers to remedy complaints. This provision is obsolete given
the specific provisions in Part 6 regarding actions to remedy.
Subclause (k) substitutes new paragraphs (n), (o) and (oa) for
current paragraphs (n) and (o). The Commissioner's functions
under paragraph (n) will include providing education and
information about the prevention of conduct that leads to
complaints and the resolution of complaints relating to the
provision of disability services and regulated disability services.
Under paragraph (o), the Commissioner's function will include
to provide education and information about how to respond to
allegations of abuse and neglect in the provision of disability
services and regulated disability services.
Under paragraph (oa), the Commissioner will have the function
to provide education and information about the prevention of
abuse and neglect in the provision of disability services and
regulated disability services.
Subclause (l) substitutes new paragraphs (p) and (pa) for
current paragraph (p). The Commissioner's functions under
paragraph (p) will be broadened to include the function to
conduct research into complaints and mechanisms for resolving
complaints relating to the provision of disability services and
regulated disability services. The Commissioner's function
under new paragraph (pa) will be to conduct research into, and
mechanisms for preventing, abuse and neglect in the provision
of disability services and regulated disability services.
5
Clause 7 amends the powers of the Commissioner in section 17(1) of
the Principal Act to take into account the Commissioner's new
powers to initiate systemic and individual investigations into
abuse and neglect in the provision of disability services and
regulated disability services, conduct investigations into matters
referred by the Minister or Secretary and deal with complaints
of prescribed service providers.
Subclause (a) substitutes paragraph (b)(i) with new
subparagraphs (i) and (ia). New subparagraph (i) empowers the
Commissioner to develop, and suggest ways of implementing,
procedures to deal with complaints relating to disability services
or regulated disability services. New subparagraph (ia)
empowers the Commissioner to develop, and suggest ways of
implementing, procedures to prevent and respond to abuse and
neglect of persons with a disability receiving disability services
or regulated disability services. Currently, paragraph (b)(i)
relates to complaints in disability services only.
Subclause (b) replaces paragraph (d) with new paragraphs (d)
and (da). The Commissioner's power under new paragraph (d)
is to provide advice generally on any matter to disability service
providers, funded service providers, contracted service providers,
prescribed service providers, complainants, the Minister and the
Secretary. New paragraph (da) empowers the Commissioner
to provide advice generally with respect to accountability
investigations and the prevention and response to abuse and
neglect to disability service providers and regulated service
providers, persons with a disability, the Minister and the
Secretary. Previously, paragraph (d) only related to complaints
in disability services.
Subclause (c) amends paragraph (e) to broaden the scope of
the Commissioner's power to encourage service providers to
distribute, display and make available the Commissioner's
material about complaints resolution, to capture disability service
providers, funded service providers, contracted service providers
and prescribed service providers. Previously, paragraph (e) only
applied to disability service providers.
Subclause (d) substitutes new paragraphs (f) and (g).
New paragraph (f) broadens the scope of the Commissioner's
power to seek information about the working of the complaints
system to capture all service providers, including funded service
providers, contracted service providers and prescribed service
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providers, and to also seek information about systems in place
to prevent and respond to abuse and neglect from all service
providers. The Commissioner is also empowered to seek
information from users of those services.
New paragraph (g) empowers the Commissioner to do all things
that are necessary or convenient to be done for or in connection
with the performance of the Commissioner's functions under the
Principal Act.
Clause 8 amends section 19 of the Principal Act under which the
Commissioner has obligations to include certain information
regarding the exercise of the Commissioner's functions in the
annual report produced by the Commissioner under Part 7 of
the Financial Management Act 1994. The amendments are
required due to the expansion of the Commissioner's powers
under section 17 of the Principal Act.
Subclause (1) amends section 19(1) of the Principal Act.
Paragraph (a) substitutes a new paragraph (a) to broaden the
Commissioner's reporting obligations so that the Commissioner
must also include in its annual report the number and type of
follow up investigations for the complaints and the outcome
of the follow up investigations. Previously paragraph (a) only
requires information about the number and type of complaints
and their outcome. Paragraph (b) substitutes paragraphs (b), (c)
and (d) for paragraph (b). New paragraph (b) broadens the
Commissioner's reporting obligations to include information
about the number and type of initiated investigations and the
outcome of the investigations, and the number and type of any
follow up investigations for those initiated investigations and
the outcome of the follow up investigations.
New paragraph (c) requires the Commissioner to include in the
annual report, if requested by the Minister, information on the
number and type of investigations referred to it by the Minister or
Secretary and the outcome of the investigations, the number and
type of follow up investigations for the referral investigations,
and the outcome of the follow up investigations. Under new
paragraph (d), the annual report must also include anything
specifically requested in writing by the Minister.
7
Previously, paragraph (d) only required any other information
requested by the Minister to be included in the annual report.
Subclause (2) substitutes section 19(2) of the Principal Act to
broaden the Commissioner's power to name service providers in
its annual report. The Commissioner has the power to name a
service provider who has unreasonably failed to take action
specified in a notice to take action and who has been given a
notice under new section 128Q requiring the service provider to
report on actions taken. A notice to take action may be given at
the conclusion of an investigation into complaints, an initiated
investigation or a referral investigation. Previously this power
related to notices to take action on complaints investigation.
Subclause (3) amends section 19(3) of the Principal Act to
capture all service providers including disability service
providers, funded service providers, contracted service
providers and prescribed service providers in the requirement
of the Commissioner to provide a service provider named in
an annual report the opportunity to object to being named.
Clause 9 inserts new section 19A into the Principal Act to provide the
Commissioner with protection from liability for anything done
or omitted to be done in good faith in the exercise of a power or
the performance of a function under the Principal Act, or in the
reasonable belief that the act or omission was in the exercise
of a power or the performance of a function under the Principal
Act. Any liability instead attaches to the State. New section 19A
replaces the current immunity of the Commissioner under
section 127 of the Principal Act.
Clause 10 amends section 39(4) of the Principal Act, inserts new
subsections (6), (7), (8), (9) and (10) into section 39 and
substitutes the heading to reflect the expansion of section 39
to disclosure, use and transfer of information.
Subclause (2) amends section 39(4) of the Principal Act so
that disability service providers may provide information to
the National Disability Insurance Agency (NDIA) and any
prescribed person or body for the purposes of the National
Disability Insurance Scheme, and to the Commonwealth
Minister responsible for the Aged Care Act 1997 of the
Commonwealth for the purposes of providing, arranging or
funding services to persons with a disability who are receiving,
or previously received disability services or regulated disability
8
services. Section 39(3) of the Principal Act prevents disability
service providers from disclosing information relating to the
provision of disability services unless one of the circumstances
in section 39(4) applies.
Subclause (3) inserts new subsection (6), (7), (8), (9) and (10)
into section 39 of the Principal Act.
New subsections (6) and (7) expand the information sharing
provisions to facilitate the implementation of the NDIS to
provide authorisation for specified information to be used,
disclosed or transferred to the NDIA, or any prescribed person
or body, or person or body of a prescribed class of person or
body, for any purpose for or related to the National Disability
Insurance Scheme or its implementation. The information
which may be disclosed includes information about disability
services, regulated disability services or services prescribed by
the regulations, information about the provision of those
services, and information about recipients and staff of those
services. It is intended that regulations may prescribe services
for the purposes of new subsection (6)(a) which are provided to
persons with a disability other than under the Principal Act.
New subsection (8) creates an offence, punishable by 20 penalty
units, for any person or body that receives information under new
subsection (6) to use or transfer that information for any purpose
other than the purpose for which it was disclosed to them, unless
they are otherwise authorised by law to do so.
New subsection (9) provides that sections 39(6), (7) and (8) have
effect despite any other Act or law, other than the Charter for
Human Rights and Responsibilities Act 2006.
Clause 11 inserts new subsection (2) into section 105 of the Principal Act
so that a disability service provider who is an exempt service
provider is exempt from the reporting requirements to the
Commissioner in relation to complaints.
Clause 12 amends the heading to Division 5A of Part 6 of the Principal Act
so that it is clear that Division 5A applies to regulated service
providers which includes contracted service providers, funded
service providers and prescribed service providers. The heading
currently provides that Division 5A relates to complaints to
contracted and funded service providers.
9
Clause 13 substitutes section 106A of the Principal Act so that a regulated
service provider must have an internal process to receive and
resolve complaints in respect of regulated disability services
the service provider provides to persons with a disability.
Failure to comply is an offence with a penalty of 120 penalty
units. The amendment extends the scope of section 106A to
prescribed service providers as currently, section 106A only
requires funded service providers and contracted service
providers to institute a complaints system.
Clause 14 amends section 106B of the Principal Act which provides for the
annual reporting requirements of a contracted service provider
and funded service provider to the Commissioner about the
number and type of complaints and the outcome of complaints.
The amendment extends the scope of section 106B to all
regulated service providers other than exempt service providers.
Clause 15 amends section 106C of the Principal Act which provides that a
contracted service provider or funded service provider to whom a
complaint has been made has a duty to take all reasonable steps
to prevent adverse effects to the person who made the complaint,
if the complaint was made on behalf of another person, to that
other person, or to a person with a disability. The amendment
extends the scope of section 106C to prescribed service
providers.
Clause 16 amends section 107 of the Principal Act to extend the purpose of
Division 6 of Part 6 to providing complaints processes about the
provision of services by prescribed service providers to persons
with a disability specifically for their support. Currently under
Division 6 of Part 6, complaints to the Commissioner may only
be made about the provision of services by disability service
providers, contracted service providers and funded service
providers.
Clause 17 substitutes a new section 108A into the Principal Act.
New section 108A assists in the interpretation of the Division
by clarifying that a reference to the service provider within the
Division means the service provider about whom the complaint
has been made.
10
Clause 18 amends section 109 of the Principal Act.
Subclause (1) substitutes paragraphs (a), (b) and (c) with new
paragraphs (a) and (b). New paragraph (a) provides that a
complaint may be made about the provision of disability services
or regulated disability services. This extends the scope to capture
prescribed service providers. Currently, a complaint may only be
made to the Commissioner if it arises out of the provision of
services by a disability service provider, a contracted service
provider or a funded service provider.
New paragraph (b) extends the scope of section 109 to
prescribed service providers so that a complaint may be made
that a disability service provider or a regulated service provider
has unreasonably failed to properly investigate a complaint or
take proper action upon a complaint.
Subclause (2) inserts new section 109(2) to make it clear that a
complaint may not be made about the provision of services by
an exempt service provider.
Clause 19 repeals section 118(3) of the Principal Act which provides
for the conduct of investigations by the Commissioner and
applicable rules. This provision is no longer necessary as an
equivalent provision has been inserted in new Division 8 of
Part 6 which will apply to all of the Commissioner's investigation
functions. The amendment is consequential to the expansion of
the Commissioner's powers and ensuring investigations are
conducted consistently.
Clause 20 repeals section 119(3), (4), (5), (6), (7), (8), (9) and (10) of
the Principal Act which provide for the procedure following a
notice of decision of the Commissioner under section 119(1)
that a complaint under Division 6 of Part 6 is justified.
These provisions are no longer necessary as equivalent
provisions have been inserted into new Division 6C of Part 6.
This Division sets out the procedure following the conclusion of
an investigation which will apply to complaints investigations
and all other investigations. The amendments are consequential
to the expansion of the Commissioner's functions and ensuring
consistency of procedures and powers across all accountability
investigations.
11
Clause 21 repeals section 122 of the Principal Act which provides for
the Commissioner's powers to compel attendance and call
for evidence and documents in relation to any inquiry by the
Commissioner into matters referred by the Minister, the
investigation of a complaint by the Commissioner, and any
inquiry by the Commissioner into actions taken by a provider
following a notice of a decision under section 119(1) requiring
action to be taken. This provision is no longer necessary as
equivalent powers have been inserted in new Division 8 of
Part 6 and will apply to all accountability investigations.
The amendment is consequential to the expansion of the
Commissioner's investigatory functions and the necessity to
ensure consistent powers across the investigatory functions.
Clause 22 substitutes section 123 of the Principal Act to prescribe that
the Commissioner must not exercise a power under Division 8
while a complaint is being conciliated. Currently section 123(1)
provides that the Commissioner cannot exercise the power
to compel attendance and call for evidence and documents
under section 122 whilst a complaint is being conciliated.
Section 123(2) currently provides that legal professional
privilege or client legal privilege and the privilege against
self-incrimination, apply during the exercise of the
Commissioner's powers under section 122. Section 123(2)
is no longer necessary as the protections afforded by legal
professional privilege, client legal privilege and the privilege
against self-incrimination have been inserted in new Division 8
of Part 6 to ensure they apply to all accountability investigations.
The amendment is consequential to the expansion of the
Commissioner's investigatory functions and the necessity to
ensure consistent protections across those functions.
Clause 23 repeals section 124 of the Principal Act which provides for the
powers of the Commissioner to seek and execute search warrants
for specified purposes. This provision is no longer necessary as
a warrants provision has been inserted in new Division 8 of
Part 6 which will apply to all of the Commissioner's investigation
functions. The amendment is consequential to the expansion of
the Commissioner's investigatory functions and the necessity to
ensure consistent powers across those functions.
12
Clause 24 repeals section 125 of the Principal Act which contains
an offence for making a false or misleading statement in a
complaint, report or return under Division 6 of Part 6.
This provision is no longer necessary as an equivalent offence
provision has been inserted in new Division 8 of Part 6 and
will apply in respect of all of the Commissioner's investigation
functions. The amendment is consequential to the expansion of
the Commissioner's investigatory functions and the necessity to
ensure consistent protections across those functions.
Clause 25 repeals section 126 of the Principal Act. Section 126(a)
of the Principle Act makes it an offence to, by threats or
intimidation, persuade or attempt to persuade a person not to
make a complaint or continue discussion with or proceedings
before the Commissioner. Section 126(b) makes it an offence
to penalise a person in their employment who intends to make
a complaint or has made a complaint, or intends to take part
in, is taking part in, or has taken part in, discussions with or
proceedings before the Commissioner. This provision is no
longer necessary as an equivalent offence provision has
been inserted in new Division 8 of Part 6 and will apply in
respect of all of the Commissioner's investigation functions.
The amendment is consequential to the expansion of the
Commissioner's investigatory functions and the necessity to
ensure consistent protections across those functions.
Clause 26 repeals section 127 of the Principal Act which provides for
an immunity from prosecution to the Commissioner, a delegate
of the Commissioner and parties to proceedings which is
equivalent to the protection and immunity of a witness in a
proceeding in the Supreme Court. This provision is no longer
necessary as similar provisions have been inserted in new
Division 8 of Part 6, and new section 19A which will apply in
respect of all of the Commissioner's investigation functions.
The amendment is consequential to the expansion of the
Commissioner's investigatory functions and the necessity
to ensure consistent protections across those functions.
Clause 27 repeals section 128 of the Principal Act which provides for
the protection of specified information and allows for such
information to be recorded and shared for specified purposes.
This provision is no longer necessary as an equivalent provision
has been inserted in new Division 8 of Part 6 which will apply
13
in respect of information collected by the Commissioner when
exercising all of its functions. The amendment is consequential
to the expansion of the Commissioner's investigatory functions
and the necessity to ensure consistent protections across those
functions.
Clause 28 inserts new Divisions 6A, 6B and 6C after Division 6 of Part 6 of
the Principal Act.
New Division 6A provides for initiated investigations by the
Commissioner.
New section 128A provides that in Division 6A, Commissioner
means the Disability Services Commissioner.
New section 128B provides the Commissioner with new
powers to initiate investigations regarding abuse or neglect of
persons with a disability in the provision of disability services
or regulated disability services. The investigation may relate
to individual cases of abuse or neglect or persistent or recurring
systemic issues about abuse or neglect in those services.
The purpose of such investigation it to drive service
improvement. Given this, subsection (4) provides that the
Commissioner must not conduct an initiated investigation
unless it will assist in the improvement of services.
Subsections (4) and (5) further provide that an initiated
investigation must not be conducted unless it can be conducted
within the resources of the Commissioner, and must not be
conducted about services provided by an exempt service
provider.
New section 128C sets out the notices the Commissioner
is required to provide upon commencement of an initiated
investigation. For a systemic initiated investigation, each
service provider must be given notice within 14 days of the
Commissioner deciding to investigate that service provider.
The Commissioner may also give notice to any person with a
disability who is the subject of the investigation, or their guardian
or next of kin, if they do not have capacity. For an individual
initiated investigation, within 14 days of deciding to conduct
the investigation, the notice must be given to the person with a
disability who is subject of the investigation, any person who is
alleged to have abused or neglected the person with a disability
and the relevant service provider.
14
Subsection (2) provides that if the Commissioner has not given
the required notice, then it must be given at the same time as the
Commissioner or an authorised officer exercises an investigation
power under Subdivision 3 or 4 of Division 8. This is to reflect
that a decision to investigate and exercise powers, for example
site visits, may occur quickly or simultaneously.
Subsection (3) provides an exemption to the requirement to give
notice. The Commissioner is not required to provide notice if
the Commissioner considers providing notice would affect the
health, safety or welfare of the relevant person with a disability,
or the proper investigation of the matter would be prejudiced.
If subsection (3) applies, subsection (4) requires the
Commissioner to give written notice to any persons specified
in new section 128C(1) without delay once satisfied that the
risk is at an end, the investigation is unlikely to be further
prejudiced or in any case, no later than 6 months after the
investigation has completed or if it ends earlier, before the
end of the investigation.
New sections 128D and 128E set out the decisions required
to be made at the completion of an investigation.
On completing a systemic initiated investigation, new
section 128D(1) requires the Commissioner to decide
whether or not a persistent or recurring systemic issue
about abuse or neglect in the provision of the services
exist. New section 128D(2) requires that on completion
of an individual initiated investigation, the Commissioner
must decide whether or not abuse or neglect has occurred
in the provision of the service to the person with a disability.
If one of these decisions is made, new section 128E requires the
Commissioner to decide if any action should be taken by the
relevant service provider to improve services or prevent neglect
or abuse. Subsection (3) requires that the Commissioner must
not determine any action to be taken which conflicts with Acts,
subordinate instruments, rule of law or practice.
Subsection (4) requires the Commissioner to consider the
impact on any affected service providers and person accessing
the services when determining the action to be taken.
New section 128F sets out the notices required to be given after a
decision is made on an initiated investigation.
15
Within 14 days after making a decision on an systemic initiated
investigation, new section 128F requires the Commissioner to
give written notice of the decision, including reasons, to any
service provider who was the subject of the investigation.
The Commissioner may also provide written notice of the
decision to any person with a disability who is the subject of the
investigation, or their guardian or next of kin, if they do not have
capacity, provided that the Commissioner has first given any
person about whom an adverse comment or opinion is made in
the decision opportunity to comment on the decision to give the
notice.
New section 128F also requires the Commissioner to give
written notice, including reasons, of the decision on an individual
initiated investigation to the person with the disability, or their
guardian or next of kin if they do not have capacity, and service
provider who was subject of the investigation, and any person
about whom an allegation was made.
New section 128G provides that if the Commissioner
decides that a service provider should take action under new
section 128E, the notice in new section 128F must specify
the action to be taken and that the Commissioner may conduct
a follow up investigation into the action, if any, taken by the
service provider.
New Division 6B provides for referral investigations by the
Commissioner.
New section 128H provides that in new Division 6B,
Commissioner means the Disability Services Commissioner.
New section 128I empowers the Commissioner to conduct an
investigation into a matter referred to the Commissioner by the
Minister or Secretary. An investigation may not be conducted
into an exempt service provider.
Under subsection (2), the Minister or Secretary may refer, in
writing, for investigation matters regarding the provision of,
complaints about, or abuse or neglect in, disability services or
regulated disability services. These matters may be in relation
to individual persons with a disability (including persons who
have died prior to the referral), groups of such persons, or the
provision of services generally. The purpose of the referral is
to improve services or understand service issues.
16
When making the referral, under subsection (4), the Minister or
Secretary may request the Commissioner to consider actions a
service provider should take to improve services.
New section 128J requires the Commissioner to publish details of
any referral investigation on the Commissioner's website within
14 days of receiving the referral. The Minister or Secretary may
require the publication to be de-identified.
New section 128K provides that the Commissioner must give
notice within 14 days of deciding to investigate a service
provider under a referral investigation where the Minister or
Secretary has requested the Commissioner consider actions to
remedy during the investigation under new section 128I(4).
Subsection (2) provides that if the Commissioner has not given
the required notice, then it must be given at the same time, or
before, the Commissioner or an authorised officer exercises an
investigation power under Subdivision 3 or 4 of Division 8, or
within 14 days of deciding to conduct the investigation if the
power has not been exercised prior. This is to reflect that a
decision to investigate and exercise powers, for example site
visits, may occur quickly or simultaneously.
Subsection (3) provides an exemption to the requirement to give
notice. The Commissioner is not required to provide notice to a
service provider if the Commissioner considers providing notice
would affect the health, safety or welfare of the relevant person
with a disability or the proper investigation of the matter would
be prejudiced.
If subsection (3) applies, subsection (4) requires the
Commissioner to give written notice to the service provider
without delay once satisfied that the risk is at an end, the
investigation is unlikely to be further prejudiced, or in any case,
no later than 6 months after the investigation has completed
or if it ends earlier, before the end of the investigation.
New section 128L provides that the Commissioner may make
recommendations and give advice to the Minister or Secretary on
the improvements that may be made to the services investigated
upon the completion or a referral investigation.
17
Under new section 128M, if the referral investigation required
the Commissioner to consider actions to remedy under new
section 128I(4), the Commissioner may decide that any service
provider investigated should take action to remedy services.
The Commissioner should not determine that action should be
taken in a way which conflicts with the provisions of any Act,
subordinate instrument, rule of law or practice and in determining
the action which should be taken, the Commissioner must have
regard to the impact on any service provider who may be affected
and any person accessing the services of that service provider.
Under new section 128N, where the Commissioner decides under
new section 128M that a service provider should take action, the
Commissioner must provide written notice of that decision to the
service provider. The notice must include the action that should
be taken, the reasons and that the Commissioner may conduct a
follow up investigation into the actions, if any, taken.
New Division 6C provides for follow up investigations by the
Commissioner.
New section 128O provides that in new Division 6C,
Commissioner means the Disability Services Commissioner.
New section 128P provides that a service provider who has
been given notice to take action must report to the Commissioner
on the action taken in writing within 45 days of receiving the
notice or before the end of any other agreed time. Failure to
do so is an offence with 60 penalty units. On application of a
service provider prior to the expiry of the reporting period, the
Commissioner may agree to extend the time for reporting by no
more than 15 days.
Under new section 128Q, the Commissioner may require the
service provider to report in writing of any action taken to
comply with a notice to take action irrespective of whether the
service provider has already reported under new section 128P.
Subclause (2) provides that the notice may require the service
provider to produce information within the specified timeframe
and must state that the Commissioner may conduct a follow up
investigation into action taken, if any, by the service provider.
The notice must not be given unless the period for reporting
under new section 128P(2) has ended. The Commissioner
may give notices under subclause (1) any number of times until
satisfied that the notice to take action has been complied with.
18
Failure to comply with a notice to report under this section is an
offence with 60 penalty units.
New section 128R provides that the Commissioner may
conduct a follow up investigation into what action the service
provider has taken on a complaint, including action taken in
response to a notice to take action if the Commissioner has
provided a notice under new section 128Q (requesting a report
on actions taken) and the timeframe specified in the notice under
new section 128Q(2)(b) has elapsed. Such investigations may
not be conducted into exempt service providers.
New section 128S requires the Commissioner to give notice of a
follow up investigation within 14 days of deciding to investigate.
Subsection (3) provides an exemption to the requirement to give
notice. The Commissioner is not required to provide notice to a
service provider if the Commissioner considers providing notice
would affect the health, safety or welfare of the relevant person
with a disability or the proper investigation of the matter would
be prejudiced.
If subsection (3) applies, subsection (4) requires the
Commissioner to given written notice to the service provider
without delay once satisfied that the risk is at an end, the
investigation is unlikely to be further prejudiced, or in any
case, no later than 6 months after the investigation has completed
or if it ends earlier, before the end of the investigation.
Under new section 128T, the Commissioner must decide
whether or not the service provider has taken the required action
upon completion of a follow up investigation. The decision
must not be made in a way which conflicts with the provision of
any Act or subordinate instrument, or any rule of law or practice.
In making the decision, subclause (3) requires the Commissioner
to consider the impact on any affected service providers and
persons accessing those services.
New section 128U requires the Commissioner to give written
notice of a decision under new section 128T within 14 days of
making the decision. The notice must specify whether or not
the notice to take action was complied with and the reasons.
19
Clause 29 inserts new Divisions 8 and 9 after Division 7 of Part 6 of the
Principal Act.
New Division 8 of Part 6 provides for the conduct of
investigations by the Commissioner, investigatory powers
and protections and offences relating to investigations.
New section 132A provides that in new Division 8,
Commissioner means the Disability Services Commissioner
and investigation hearing notice is a notice served under new
section 132P.
New clause 132B provides that the Commissioner may appoint
a person employed under Part 3 of the Public Administration
Act 2004 in the administration of the Principal Act to be an
authorised officer. Before doing so, the Commissioner must
be satisfied the person is appropriately qualified and trained.
New clause 132C provides that the Commissioner must issue an
identification document to each authorised officer containing the
photograph and signature of the authorised officer, and any other
information the Commissioner considers necessary.
Unless a requirement is made by post, new clause 132D
requires authorised officers to produce their identification
before exercising powers under new Division 8 or at any time
upon request during exercise of their powers. A failure to do
so is an offence punishable by 10 penalty units.
Under new section 132E, authorised officers have the power
to, with any assistance reasonably required, visit and inspect
premises from which a service provider is providing a service
that is being investigated by the Commissioner. Before doing
so, subsection (3) requires authorised officers to produce their
identification and explain the purpose of the investigation to the
person in charge of the premises.
Subsection (4) provides that an authorised officer's inspection
power must not be exercised with respect to--
• residential premises that are not residential services; or
• a resident's room in a residential services without that
person, or where appropriate, the person's guardian or
next of kin's consent.
20
Subsection (5) clarifies that if more than one resident occupies
a room in a residential service, all residents occupying the room
must provide consent before an authorised officer enters the
room.
These restrictions are intended to balance the rights of residents
to privacy within their own home, and the necessity of authorised
officers to conduct investigations.
During inspections, authorised officers have powers under new
section 132F to--
• make inquiries in relation to relevant persons with a
disability;
• obtain access to relevant documents to examine
(including by use of equipment), copy and remove
them;
• obtain access to relevant things to inspect to determine
if the thing is relevant to the investigation;
• if relevant, see and interview a person with a disability,
their relatives or support persons if they are on the
premises being inspected and provided they have
consented under new section 132G;
• if relevant, require the service provider and its
employees and volunteers involved in providing
services on the premises to answer questions.
Subsection (2) requires the authorised officer to obtain consent
before inspecting medical records of a person with a disability.
Before interviewing a person with a disability, their relatives or
persons of significance, new section 132G requires authorised
officers to obtain consent of the person to be interviewed. If the
person to be interviewed is a person with a disability, authorised
officers must also take reasonable steps to mitigate any negative
effect of the interview on the person and allow the person's
guardian or next of kin to be present.
Before conducting an interview or requiring a person to provide
answers, subsection (2) requires authorised officers to advise
persons of the effect of new sections 132X and 132Y--that it is
a reasonable excuse not to answer if the answer would tend to
incriminate them, or breach legal professional privilege or client
legal privilege.
21
New section 132H provides for the powers of the Commissioner
to seek and execute search warrants for specified purposes.
The clause sets out the requirements for search warrants and
specifies that, except if otherwise provided by the Bill, the
rules to be observed with respect to search warrants under the
Magistrates' Court Act 1989 apply to warrants issued under
this clause.
Subsection (1) provides the Commissioner may apply to a
magistrate for a search warrant if the Commissioner reasonably
believes that there is on the premises evidence relevant to an
accountability investigation.
Subsection (3) provides that the person executing a warrant may
require the production of a document named in a warrant, may
examine, make copies or take extracts from a document named
in a warrant, may remove a document for so long as necessary to
make copies or take extracts, and may bring any equipment onto
the premises that is reasonably necessary to examine documents
named in a warrant.
Subsection (4) sets out that a warrant must state the purpose for
which the search is required, any condition to which the warrant
is subject, when entry is authorised to take place and the day on
which the warrant ceases to have effect (a day not later than
20 days after the warrant was issued).
Subsection (6) provides that a warrant issued under this clause
must not authorise the person executing the warrant to arrest a
person.
New section 132I provides that a person executing a warrant
issued under new section 132H must announce that the person is
authorised by the warrant to enter the premises and if the person
has been unable to obtain unforced entry, must give any person
at the premises an opportunity to allow entry to the premises.
Subsection (2) provides that if the occupier is present at the
premises where a warrant issued under new section 132H is
being executed, the person executing the warrant must identify
himself or herself to the occupier and give the occupier a copy
of the warrant.
22
Subsection (3) provides that if the occupier is not present at the
premises where a warrant issued under new section 132H is
being executed, the person executing the warrant must identify
themselves to a person apparently in charge at the premises and
give the person a copy of the warrant.
New section 132J provides that it is an offence for a person,
without reasonable excuse, to hinder or obstruct a person who is
executing a warrant issued under new section 132H. A penalty
of 60 penalty units in relation to a natural person and 300 penalty
units in relation to a body corporate applies for failure to comply.
New section 132K provides that an authorised officer visiting a
premises under Subdivision 3 of Part 6 or entering a premises
under a warrant under new section 132H, who produces the
authorised officer's identification for inspection by the occupier
of the premises or the person apparently in charge of the
premises, may require that person to give reasonable assistance.
New section 132L sets out principles of accountability
investigations--
• the Commissioner may make any necessary inquiries
into the subject matter of the investigation during
accountability investigations;
• the procedure is at the discretion of the Commissioner;
• the Commissioner is not bound by the rules of evidence
but is bound by natural justice including providing
persons affected by a decision the opportunity to make
submissions;
• the Commissioner must act with as must expedition
and as little as formality as the proper investigation of
the matter and the Principal Act allows.
New section 132M requires a person who is the subject of an
accountability investigation to provide the Commissioner or
authorised officer with any assistance they reasonably require
in connection with the investigation.
During an accountability investigation where there is no hearing,
new section 132N provides the Commissioner powers to take
oral or written submissions, send for persons, documents or
other things and record all submissions and decisions made.
23
New sections 132O to 132T set out the requirements and powers
with respect to accountability investigation hearings.
New section 132O(1) requires the Commissioner to give at least
10 business days written notice of an accountability investigation
hearing into a complaint to the parties to the complaint.
Subsection (2) provides, for any other accountability
investigation, the Commissioner must give at least 10 business
days written notice to the service provider being investigated.
If the investigation involves allegations of abuse or neglect,
the Commissioner may give written notice to the person with a
disability against whom abuse or neglect is alleged to have been
committed, and if the investigation involves allegations against
any person, must give written notice to the person about whom
an allegation has been made.
New section 132P provides that for the purpose of an
investigation hearing, the Commissioner may, by serving
written notice on a person, require the person--
• to produce a specified document or thing to the
Commissioner by a specified time and in a specified
manner; or
• to attend the investigation hearing at a specified time
and place to produce a specified document or thing; or
• to attend the investigation hearing at a specified time
and place, and from then on until excused, to give
evidence; or
• to attend the investigation hearing at a specified time
and place, and from then on until excused, to give
evidence and to produce a specified document or thing.
If a person with a disability is served notice and is unable to
attend the hearing due to their disability, health or other personal
circumstances, subsections (2) and (3) allow the person to apply
to the Commissioner for an agreement that the person may give
evidence by video link or by attending at another agreed place.
Subsection (4) requires the Commissioner to take reasonable
steps to mitigate any negative impact that giving evidence may
have on a person with a disability and allow a person with a
disability to have their guardian or next of kin present.
24
Subsection (5) provides that an investigation hearing notice
must be in the prescribed form (if any) and specifies the
information that must be included.
New section 132Q provides that it is an offence for a person
served with an investigation hearing notice, without reasonable
excuse, to refuse or fail to comply with the notice. A penalty of
120 penalty units or 12 months imprisonment or both in relation
to a natural person and 600 penalty units in relation to a body
corporate apply.
New section 132R provides that a person served with an
investigation hearing notice may claim at the hearing that
they have or will have reasonable excuse for not complying
with the notice or that the document or thing to be produced
is not relevant to the subject matter of the hearing.
Subclause (2) provides that the Commissioner may, if satisfied
that the person's claim under subclause (1) is made out, by further
written notice vary or revoke the investigation hearing notice.
Subclause (3) provides that the Commissioner, by further written
notice, may at any time vary or revoke an investigation hearing
notice.
New section 132S provides that in an investigation hearing the
Commissioner may require a person attending the hearing to
give evidence or answer questions on oath or by affirmation.
Subclause (2) provides that the Commissioner or member of
the staff of the Commissioner who is authorised to do so may
administer an oath or affirmation to a person for the purpose of
subclause (1).
New section 132T provides that, in respect of documents or
things produced at an investigation hearing, the Commissioner
may inspect, copy and retain the relevant document or thing
for as long as reasonably necessary for the purposes of the
investigation hearing.
Subclause (2) provides that if the retention of a document or
thing ceases to be reasonably necessary for the purposes of the
investigation hearing, at the request of any person who appears
to be entitled to the document or thing, the Commissioner must
arrange for the document or thing to be delivered to the person.
25
New section 132U provides that a person who is or was the
Commissioner or a member of the staff of the Commissioner
cannot be compelled to give evidence in a court in relation to an
accountability investigation unless the court grants leave to do so.
New section 132V provides that a person who gives information
or evidence or produces a document or thing to an accountability
investigation has the same protection and immunity as a witness
in a proceeding in the Supreme Court.
New section 132W provides that disclosure by a person of
information to the Commissioner under Part 6 does not constitute
unprofessional conduct or breach professional ethics or make the
person liable for the disclosure.
New section 132X provides that it is a reasonable excuse for a
person to refuse or fail to give information or do any other thing
that the person is required to do by or under new Division 8, or
by or under a search warrant issued under new Division 8 if the
giving of the information or the doing of that other thing would
tend to incriminate the person.
New section 132Y provides that it is a reasonable excuse for a
person to refuse or fail to give information or do any other thing
that the person is required to do by or under new Division 8, or
by or under a search warrant issued under new Division 8 if the
giving of the information or the doing of that other thing would
be a breach of legal professional privilege or client legal
privilege.
New section 132Z provides that a person who knowingly makes
an oral or written statement in an accountability investigation
or to the Commissioner under Part 6 which is materially false or
misleading is guilty of an offence. The penalty for breaching this
offence is up to 60 penalty units.
Section 132ZA protects persons from being penalised for making
complaints or providing information to the Commissioner.
Subsection (1) provides that it is an offence, with a penalty
of 120 penalty units in the case of a natural person and
600 penalty units for body corporates, for a person to, by
threat or intimidation, persuade another person not to make a
complaint to the Commission or not to provide information to
the Commissioner.
26
Subsection (2) provides that it is an offence, with a penalty of
120 penalty units for natural persons and 600 penalty units for
body corporates, for a person to dismiss or refuse to employ
another person or subject to them to any detriment if the person
intends to or has made a complaint, or intends to or provides
information to the Commissioner, or intends to or is taking part
in discussions or proceedings with the Commissioner.
New section 132ZB allows the Commissioner to disclose
information acquired in the course of administering section 16(c)
of the Principal Act, or Divisions 6, 6A, 6B, 6C or 8, to the
authorities specified (such as to the Ombudsman, Victoria Police
and a community visitor) provided the disclosure is relevant to
the performance of the Commissioner's functions, or in the
performance of a function conferred on the authority by or under
an Act.
New section 132ZC provides that it is an offence, with a penalty
of 60 penalty units, for a prescribed person to disclose or make a
record of any information gained in the performance of functions
or duties or exercise of powers under the Principal Act except as
authorised under subsection (2).
Subsection (2) provides that prescribed persons may disclose
or make a record of the information in the following
circumstances--
• with consent;
• if necessary in connection with performance of a
function, duty or power under the Principal Act;
• to a court or tribunal for criminal proceedings or orders;
• to obtain legal advice;
• if authorised by the Principal Act.
Subsection (3) provides that without limiting subsection (1),
it is an offence with 60 penalty units for a prescribed
person to disclose information given to him or her under a
requirement under Part 6 of the Principal Act unless authorised.
Subsection (4) authorises disclosure to another authorised officer,
or with consent from the person who provided the information.
Subsection (5) provides that a prescribed person is the
Commissioner, the Commissioner's delegates, the
Commissioner's employees and consultants.
27
New Division 9 of Part 6 sets out additional reporting obligations
regarding initiated and referral investigations and avoiding
unnecessary duplication.
New clause 132ZD provides that in Division 9, Commissioner
means the Disability Services Commissioner.
Under new section 132ZE, after completing a referral
investigation and a systemic initiated investigation, the
Commissioner must give the Minister and Secretary a copy
of the report. The Commissioner has the discretion to
provide an individual initiated investigation report to the
Minister or Secretary.
Before reports are provided under new section 132ZE, new
section 132ZF requires the Commissioner to provide any person
about whom, or any service provider about which, an adverse
comment or opinion is made a copy of the relevant part of the
report, and reasonable opportunity to comment.
Under new section 132ZG, the Commissioner has the discretion
to give a copy of a systemic initiated investigation report to
the clerk of each House of Parliament if 14 days have elapsed
since the Commissioner provided the report to the Minister and
Secretary under new section 132E, and the Commissioner has
complied with new section 132ZF. The Commissioner must not
provide any reports which identify or name individuals or contain
information which enables an individual to be identified within
them.
Under subsection (3), if provided, each clerk must cause the
report to be laid before Parliament on the day on which the
report was received, or the next sitting day of the House.
If the Commissioner proposes to give a report to Parliament
when neither House is sitting, subsection (4) requires the
Commissioner to first give one business days' notice, give
a copy of the report to the clerk of each House on the day
indicated in the notice, and cause the report to be published
by the Government printer.
Upon receipt of a notice under subsection (4), subsection (5)
requires the clerk of a House of Parliament to notify each
member of the House of receipt of the notice as soon as
practicable. Upon receiving a copy of the report, subsection (6)
requires the clerk of the House to, as soon as practicable, notify
28
each member of receipt of the report, give a copy to any member
of the House on request, and cause a copy of the report to be laid
before Parliament on the next sitting day. Under subclause (7), a
copy of a report given to the clerk is taken to have been published
by order, or under the authority of, that House.
New section 132ZH provides that the Commissioner may liaise
with other investigative bodies to avoid unnecessary duplication
of inquiries or resources and to facilitate the coordination and
expedition of inquiries or investigations that are to be conducted
by other bodies.
Clause 30 amends section 218(2) of the Principal Act so that the
Commissioner may commence proceedings for an offence
under new Divisions 6C and 8 of Part 6, instead of under
Division 6 of Part 6. This is consequential to the offence
provisions being moved from Division 6 of Part 6 to ensure
their application to the Commissioner's expanded functions.
Clause 31 amends section 221(1) of the Principal Act to enable regulations
to be made regarding prescribed service providers and exempt
service providers. The amendment is consequential to the new
definitions of prescribed service provider and exempt service
provider in section 3(1) of the Principal Act.
Clause 32 inserts a new Division 2 into Part 10 of the Principal Act.
New Division 2 provides for transitional provisions
consequential to the Bill.
New section 232 inserts 2 definitions--
commencement day is the day on which the Bill comes into
operation.
old Act means the Principal Act as in force before the Bill came
into operation.
New section 233 provides that if a complaint was made before
commencement day, and is ongoing immediately before the
commencement day, the old Act continues to apply.
New section 234 provides that new sections 132ZB and 132ZC
apply to information acquired before, on or after the Bill comes
into operation.
29
Part 3--Repeal of amending Act
Clause 33 provides that the Bill is repealed on 31 December 2018. Due to
section 15(1) of the Interpretation of Legislation Act 1984,
the repeal of the Bill does not affect the continuing operation
of the amendments made by it.
30