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Disability and Social Services
Regulation Amendment Bill 2023
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Bill, which include--
• to amend the Disability Act 2006 in relation to--
• the Secretary's functions under that Act; and
• the sharing of information about persons with a
disability and persons subject to restrictive
practices and supervised treatment orders; and
• residential services; and
• the compulsory treatment of persons with an
intellectual disability; and
• other related matters; and
• to amend the Residential Tenancies Act 1997 in
relation to SDA enrolled dwellings; and
• to amend the Disability Service Safeguards Act 2018
in relation to registration requirements; and
• to amend the Social Services Regulation Act 2021 in
relation to--
• interviews and hearings for WCES service users;
and
• powers of entry; and
601011 1 BILL LA INTRODUCTION 21/3/2023
• other related matters.
The Bill also makes consequential and other related amendments
to various Acts.
Clause 2 is the commencement provision.
Subclause (1) provides that the Bill (except Division 2 of Part 2
and Parts 3, 4 and 6) comes into operation on the day after the
day on which it receives the Royal Assent.
Subclause (2) provides that, subject to subclause (3), the
remaining provisions of the Bill will commence on a day or days
to be proclaimed.
Subclause (3) provides that if a provision referred to in
subclause (2) does not come into operation before 1 July 2024, it
comes into operation on that day. The default commencement
date will enable time for implementation.
Part 2--Amendment of Disability Act 2006
Division 1--Amendment of Disability Act 2006
Clause 3 amends section 1(b) of the Disability Act 2006 to also refer to
DSOA clients, to reflect that the Disability Act 2006, as
amended by this Bill, will now also protect the rights of those
persons in relation to the use of restrictive practices.
Clause 4 inserts, amends and repeals the definitions of various words and
expressions used in the Disability Act 2006.
Subclause (1)(a) substitutes a new definition of Authorised
Program Officer to reflect that Authorised Program Officers are
now approved by the Senior Practitioner, instead of the Secretary,
for both disability service providers and registered NDIS
providers. Currently the Secretary approves Authorised Program
Officer appointments for disability service providers whilst the
Senior Practitioner does so for registered NDIS providers.
Subclause (1)(b) amends the definition of Department to reflect
recent machinery of government changes.
Subclause (1)(c) repeals the definition of Disability Services
Board to reflect the dissolution of that Board by clause 18 of this
Bill.
2
Subclause (1)(d) inserts "DSOA client" into the definitions of
NDIS behaviour support plan, NDIS plan and restrictive
practice. This is to reflect that those definitions now also apply
to DSOA clients, as well as NDIS participants.
Subclause (1)(e) inserts "DSOA client" into the definition of
short-term accommodation and assistance dwelling. This is to
reflect that this definition now also applies to DSOA clients, as
well as NDIS participants.
Subclause (1)(f) substitutes "193" for "191" in the definition of
supervised treatment order to reflect the change to the provision
under which a supervised treatment order is made by VCAT.
Subclause (1)(g) substitutes "189" for "191" in the definition of
treatment plan to reflect numbering changes.
Subclause (2) inserts definitions of health information, Minister
approved premises, Minister approved premises resident,
personal information and primary service provider into
section 3(1). These are consequential amendments to reflect new
defined terms introduced by the Bill.
Subclause (3)(a) substitutes "2020" for "2016" in the definition of
SDA enrolled dwelling, to reflect the revised year of the
Commonwealth's National Disability Insurance Scheme
(Specialist Disability Accommodation) Rules.
Subclause (3)(b) substitutes the definition of residential service,
which means residential accommodation that is provided by or on
behalf of or by arrangement with a disability service provider,
that is provided as accommodation in which residents are
provided with disability services, that is supported by rostered
staff that are provided by a disability service provider and
admission to which is approved by the Secretary, or prescribed
accommodation or accommodation provided by a disability
service provider that is approved by the Senior Practitioner under
section 187.
Subclause (3)(c) inserts the definition of specialist forensic
disability accommodation, which means accommodation
determined by the Secretary to be specialist forensic disability
accommodation under section 61B.
Subclause (4)(a) substitutes "DSOA client" for "CoS supported
accommodation client" in the definition of SDA resident, to
reflect the new replacement term introduced in this Bill.
3
Subclause (4)(b) inserts a grammatical change into the definition
of Victorian Disability Worker Commissioner.
Subclause (4)(c) inserts the definition of DSOA client, which
means older persons who receive supports under the
Commonwealth Disability Support for Older Australians
program or a prescribed program and who are not NDIS
participants. The term replaces the previous defined term CoS
supported accommodation client to reflect the new name of the
program, and to allow flexibility if a new program is introduced.
Subclause (4)(c) also inserts the definition of DSOA client's
guardian and the definition of Victorian WorkCover Authority.
Subclause (4)(d) repeals the definition of CoS supported
accommodation client as this term is being replaced by DSOA
client in this clause.
Clause 5 inserts new section 3B into the Disability Act 2006, to provide
that a registered NDIS provider is taken to be providing a
residential service where a registered NDIS provider is using
supervised treatment and the accommodation provided to a
person subject to a supervised treatment order is approved by the
Senior Practitioner under section 187. This is to ensure that the
obligations and protections provided in residential services apply
in these circumstances.
Clause 6 inserts new section 3C into the Disability Act 2006 to provide
clarification about when a disability service provider or
registered NDIS provider is considered to be a primary service
provider. The provider providing the majority of support to a
person within the person's accommodation is the primary service
provider. If more than one provider is providing an equal amount
of support, then the primary service provider may be appointed
by the Senior Practitioner. However, for the purposes of the
sections specified in subsection (3) of new section 3C, if a
supervised treatment order has been made, then the primary
service provider is the one that appointed the Authorised Program
Officer stated in the order as being responsible for the
implementation of the order. As sections throughout the
Disability Act 2006 impose certain obligations and requirements
on the primary service provider, this section is intended to
provide clarity as to which provider bears this responsibility.
4
Clause 7 amends section 4(h) of the Disability Act 2006 to also refer to
DSOA clients, to reflect that one of the objectives of the
Disability Act 2006 is now to also provide an authorisation
process for the use of restrictive practices on DSOA clients, in
addition to NDIS participants.
Clause 8 amends section 5 of the Disability Act 2006.
Subclause (1) amends section 5(3)(f) to adopt gender inclusive
language.
Subclause (2) amends section 5(3A) to refer to DSOA clients, in
addition to NDIS participants, with respect to restrictive practices
so that restrictive practices used on those persons should be
provided in the specified manner.
Subclause (3) amends section 5(4) to also refer to DSOA clients,
in addition to NDIS participants, to provide that any restriction
on the rights or opportunities placed on those persons should be
the least restrictive on those persons as is possible in the
circumstances.
The amendments in subclauses (2) and (3) reflect that the
restrictive practices provisions will also apply to DSOA clients as
amended by this Bill.
Clause 9 amends section 6(3) of the Disability Act 2006 to adopt gender
inclusive language.
Clause 10 amends section 7 of the Disability Act 2006 so that the
requirements specified for providing advice, notices or
information under the Disability Act 2006 also apply to DSOA
clients in addition to persons with a disability and NDIS
participants.
Clause 11 amends section 8 of the Disability Act 2006 to amend the roles
and functions of the Secretary for the purposes of the Disability
Act 2006.
Subclause (1)(a) omits the reference to "the Commonwealth State
Territory Disability Agreement" in section 8(1)(c), so that the
Secretary's collection and analysis of data now only relates to
complying with reporting requirements for the purposes of the
Disability Act 2006 rather than that Agreement given that
Agreement has expired.
5
Subclause (1)(b) repeals section 8(1)(ca), under which the
Secretary may currently set requirements in relation to screening
of persons employed or engaged, or to be employed or engaged,
by disability service providers for the purpose of providing
services to persons with a disability. The Secretary is to no
longer perform these functions.
Subclause (2) amends section 8(2)(j) to expand the Secretary's
function to include making recommendations and reports to the
Minister about matters relating to DSOA clients in addition to
persons with a disability and NDIS participants.
Clause 12 amends section 10(2) of the Disability Act 2006 to remove the
maximum time period of a contract entered into by the Secretary
under section 10(1) for the provision of goods or services to
persons with a disability or that relate to the administration of the
Disability Act 2006. The maximum time period is currently set
at 3 years. The purpose of this amendment is to enable such
contracts to be made for a longer period where required.
Clause 13 amends section 10A of the Disability Act 2006 to update the
Secretary's powers in relation to land.
Subclause (1) amends section 10A(1) so that the Secretary may
exercise the Secretary's powers in relation to land for the
purposes of being an SDA provider, as well as for the purposes of
the Disability Act 2006.
Subclauses (2) and (3) substitute departmental references to
reflect recent machinery of government changes.
Subclause (4) inserts a new section 10A(4) which creates a power
for the Secretary to dispose of land or deal with an interest in
land with or without consideration for the purpose of providing
services under the Disability Act 2006 or the NDIS Act.
Clause 14 amends section 10B of the Disability Act 2006 to substitute
departmental references to reflect recent machinery of
government changes.
Clause 15 amends section 10C of the Disability Act 2006 to substitute
departmental references to reflect recent machinery of
government changes.
Clause 16 amends section 14(3) and (7) of the Disability Act 2006 to adopt
gender inclusive language.
6
Clause 17 repeals section 16(1)(i), (j) and (m)(i) of the Disability Act 2006.
These provisions refer to the Disability Services Board, which is
being dissolved by clause 18 of this Bill.
Clause 18 repeals Division 4 of Part 3 of the Disability Act 2006. This has
the effect of dissolving the Disability Services Board.
Clause 19 amends section 24(1) of the Disability Act 2006 to expand the
functions of the Senior Practitioner.
Paragraphs (a) and (d) ensure that the Senior Practitioner can
develop guidelines and standards, and give directions to disability
service providers and registered NDIS providers, about the
appointment of Authorised Program Officers.
Paragraph (b) inserts new paragraph (ab) to provide the Senior
Practitioner with a new function regarding promoting the
reduction and elimination of the use of restrictive practices by
disability service providers and registered NDIS providers to the
greatest extent possible.
Paragraph (c) amends section 24(1)(c) to expand the Senior
Practitioner's function regarding provision of information with
respect to the rights of a person with a disability or NDIS
participant subject to restrictive practices or compulsory
treatment to also refer to DSOA clients. This amendment reflects
that the restrictive practices provisions will also apply to DSOA
clients as amended by this Bill, and therefore fall within the role
of the Senior Practitioner.
Clause 20 amends section 25(2)(a) of the Disability Act 2006 so that the
Senior Practitioner may only delegate their powers, duties or
functions to a person with sufficient knowledge and expertise
regarding DSOA clients, in addition to NDIS participants and
persons with a disability. This amendment reflects that the
restrictive practices will also apply to DSOA clients and therefore
fall within the role of the Senior Practitioner.
Clause 21 amends section 26(1) and (2) of the Disability Act 2006 to adopt
gender inclusive language in relation to the provision of staff and
contractors to assist the Senior Practitioner.
Clause 22 amends section 27 of the Disability Act 2006.
7
Subclause (1) adds references in section 27(2) to Minister
approved premises to reflect the new type of premises in new
section 129AA inserted by clause 35 so that the Senior
Practitioner has the power to visit and inspect these premises, in
addition to premises where other disability services or services
under the NDIS are provided.
Subclauses (2) and (3) add references to DSOA clients to
section 27(5) and (5B) to expand the Senior Practitioner's duties
and powers regarding authorisation or prohibition of the use of
restrictive practices to DSOA clients, in addition to persons with
a disability and NDIS participants. This is to reflect that the
restrictive practices provisions will also apply to those persons as
amended by this Bill, and therefore fall within the role of the
Senior Practitioner.
Clause 23 amends section 30A(2) of the Disability Act 2006 so that the
functions of a community visitor when visiting short-term
accommodation dwellings applies to DSOA clients, along with
persons with a disability and NDIS participants.
Clause 24 inserts a new section 30B into the Disability Act 2006.
The new section 30B outlines the functions of a community
visitor when visiting a Minister approved premises and provides
clarity about the safeguards community visitors provide
residents.
Clause 25 amends section 34(1) of the Disability Act 2006 to expand
community visitors' current reporting requirements to also
require reports on visits to Minister approved premises to reflect
the community visitors' new power under the Bill to visit such
premises.
Clause 26 amends section 49 of the Disability Act 2006, so that a request
for the provision of disability services by a person with a
disability, or on their behalf, is made to the Secretary in relation
to services provided by, or funded by, the Secretary.
Subclause (1) amends section 49(1) to specify that the request is
to be made for the Secretary to provide access to disability
services that are provided, funded or contracted by the Secretary.
This amendment is intended to reduce duplication of
responsibilities and streamline provisions by ensuring that the
8
Secretary is only responsible for services that they fund or
contract under sections 9 and 10 of the Disability Act 2006.
Subclause (2) amends section 49(2) to refer to the power of the
Secretary to make a decision on a request under section 49(1),
rather than a disability service provider. This is to reflect that the
Secretary now receives the requests under section 49(1).
Subclause (3) substitutes section 49(3) and (4). The new
section 49(3) provides that the Secretary may require the person
who makes a request, or the person in respect of whom the
request was made, under subsection (1) to provide more
information or to undergo a formal assessment.
The new section 49(4) requires the Secretary to notify the person
who made the request and the person in respect of whom the
request was made (if the request was made on that person's
behalf) within 14 days of making a decision. The notice must
include the specified matters. This amendment is to ensure that
each person is given timely notice of a decision.
Subclause (4) amends section 49(5) so that if the Secretary agrees
to a request for access to disability services without requiring an
assessment, this is not evidence that the person to be given access
has a disability. Previously, this referred to disability service
providers agreeing to provide disability services and reflects that
disability service providers no longer have a role in access
requests.
Clause 27 substitutes section 50 of the Disability Act 2006 with new
sections 50 and 50A. This amendment is to enable the Secretary
to determine a request under section 49(1), protect the privacy of
a person who has made a request under section 49(1), and to
provide for review of a decision made by the Secretary under
section 50(1) by VCAT.
The new section 50 provides the Secretary with the ability to
make a decision on whether or not a person has a disability for
the purposes of a request under section 49(1) for access to
disability services. The section allows the Secretary to request
any relevant information (including personal information and
health information) about the person who is the subject of the
request, though the Secretary must obtain the consent of the
person, their guardian or the person who made the request (if not
the person or their guardian, and the Secretary cannot obtain the
consent of the person or their guardian). A person or body
9
receiving a request is authorised to provide the information. The
Secretary may determine the appropriate process for making a
decision as to disability, and may undertake a formal assessment.
A formal assessment is to be commenced within 30 days of
receiving a request under section 49(1), but may be deferred for
up to 3 months if the Secretary believes that any formal
assessment completed before then is unlikely to establish reliably
whether or not the person has a disability.
The new section 50A provides for the ability to make an
application to VCAT for review of a decision made under
section 50(1).
Clause 28 substitutes section 56(1) of the Disability Act 2006 to set out the
main purpose of Part 5, which is to enable the support and
treatment needs of persons with a disability to be met and to
impose obligations on disability service providers providing
residential services.
Clause 29 amends section 57 of the Disability Act 2006. The amendments
serve to provide persons with a disability better protection by
ensuring they are sufficiently informed about their treatment and
the services they will receive.
Subclause (1) substitutes section 57(1A) and (1B) with a new
section 57(1A). The new section 57(1A) requires that, in
circumstances where more than one disability service provider
provides residential services at a residential service, only the
disability service provider delivering the majority of the services
at the residential service is required to comply with
subsection (1) (regarding provision of residential statements).
This amendment provides greater clarity regarding which
provider is responsible for compliance.
Subclauses (2) and (3) amend section 57(2) and insert a new
section 57(3A) to provide further protections and entitlements to
persons with a disability and their guardians and administrators,
by requiring that additional information be included in the
residential statement, and that they be informed of variations to
their treatment plans, including any revised conditions,
requirements or restrictions.
Subclause (4) amends section 57(4) so that the current obligation
for a residential statement to not be inconsistent with the
Disability Act 2006 is expanded to ensure it is not inconsistent
10
with any directions, conditions of orders or orders a person with a
disability has been made subject to under any Act.
Subclause (5) amends section 57(5) to provide that any
inconsistency in information may not be used or relied upon.
Subclause (6) amends section 57(7) to require that additional
specified information be included in the statement of resident's
rights and duties. This amendment is to ensure that the resident
is better informed of their rights and duties and their right to seek
assistance from the disability service provider to contact an
advocate.
Clause 30 amends section 58 of the Disability Act 2006 to impose
additional obligations on disability service providers, and alter
the circumstances under which a resident's privacy or access to,
proper use and enjoyment of premises may be limited or
interfered with under section 58.
Subclause (1) makes various amendments to section 58(1)
regarding the duties of a disability service provider providing
residential services to a resident.
Subclause (1)(a) removes the requirement at section 58(1)(a) for
the disability service provider to have due regard to the resident's
entitlement to privacy because this is covered by the current
subsection (1)(f) and the new subsection (2A) inserted by
subclause (3).
Subclause (1)(b) amends section 58(1)(e) to adopt gender
inclusive language.
Subclause (1)(c) makes section 58(1)(f), which limits the power
of disability service providers to unreasonably interfere with a
resident's right to privacy or proper use and enjoyment of the
premises, subject to new subsection (2A). Subsection (2A), as
inserted by clause 30(3) of this Bill, sets out circumstances in
which a resident's privacy or proper use and enjoyment of the
premises is not unreasonably interfered with or limited.
Subclause (1)(d) substitutes the phrase "support services" with
"support and treatment" in section 58(1)(h)(ii) so that a disability
service provider is required to be accessible to residents in terms
of the provider's contact hours having regard to the support and
treatment provided to residents. This is to align with the
language used in the Act.
11
Subclause (1)(e) inserts additional obligations on disability
service providers providing residential services to ensure that
they--
• take reasonable steps to support the resident in relation
to the implementation of any treatment plan or
behaviour support plan and in relation to community
access; and
• disclose information relating to the treatment, support
and safety needs of the resident with other service
providers in accordance with the Disability Act 2006 or
any other Act.
Subclause (1)(f) substitutes section 58(1)(i). Disability service
providers will now be required to--
• ensure that residents receive any information which they
are required to be given under Part 5 of the Disability
Act 2006 and that such information complies with
section 7 of the Act for the purpose of providing advice
information or notices to residents; and
• take reasonable steps to support a person with a
disability to understand and comply with any direction
or order, or condition on any order, or any treatment
plan, that the person is subject to and which requires the
person to live at the residential service; and
• if the disability service provider suspects that a direction
or an order, or condition on any order, that a person
with a disability is subject to and that requires the
person to live at the residential service has been
breached, report the suspected breach to the responsible
authority.
Subclause (2) inserts a new paragraph (d) after section 58(2)(c).
This amendment is to ensure that the disability service provider is
not regarded as unreasonably limiting or interfering with a
resident's access to the resident's room, toilet, bathroom or
common areas of the premises if they impose the limitation or
restriction in accordance with a direction, a civil or criminal order
or a condition on any order to which the resident is subject
requiring the person to reside at the residential service.
12
Subclause (3) inserts a new section 58(2A), which provides
circumstances in which a resident's privacy or proper use and
enjoyment of premises is not unreasonably interfered with or
limited. This includes where the limitation or restriction is
imposed in accordance with--
• the resident's behaviour support plan or treatment plan;
or
• a direction given by the Senior Practitioner; or
• a direction, a civil or criminal order, or a condition on
any order to which the resident is subject requiring the
person to reside at the residential service.
Subclause (4) amends section 58(3) so that a disability service
provider must implement strategies to minimise the impact on
other residents of a limitation or restriction imposed under new
section 58(2A), in addition to section 58(2).
Subclause (5) inserts a new section 58(5) to define responsible
authority as the entity responsible for supervising an order a
person with a disability is subject to that requires the person to
reside at a residential service or the person who has directed a
person with a disability to reside at a residential service.
Clause 31 amends section 59 of the Disability Act 2006 regarding the
duties of residents.
Subclause (1) amends section 59(1) to repeal paragraph (a),
clarify that under paragraph (b), residents are only required to
pay residential charges if there are any, and inserts a new
subsection (1)(f). New subsection (1)(f) requires residents to
comply with any direction or order, or condition of any direction
or order, that the resident is subject to that requires the resident to
live at the residential service.
Subclause (2) inserts a new section 59(2)(e), which prohibits a
resident from knowingly and intentionally breaching any
conditions specified in their residential statement.
Clause 32 amends section 60 of the Disability Act 2006. This is to set out
the circumstances in which a disability service provider may
enter a resident's room.
13
Subclause (1) inserts a new section 60(2)(ca) to provide that a
disability service provider may enter a resident's room without
giving notice if the provider suspects on reasonable grounds that
there has been a breach of a direction, a civil or criminal order or
a condition of an order that the resident is subject to that requires
the resident to reside at the residential service.
Subclause (2) omits "if" in section 60(2)(c) and (d) to remove
duplication.
Subclause (3) amends section 60(2)(f) so that a disability service
provider may enter a resident's room without notice if it is
necessary to provide support or assistance to the person which is
related to the person's disability. Currently, entry is permissible
to provide support services or support specified in the resident's
support plan. This reflects that it may be necessary to enter a
room to provide both support and assistance.
Subclause (4) repeals section 60(3) as the definition of support
services is no longer required.
Clause 33 inserts new sections 61A and 61B into the Disability Act 2006
regarding termination of residency in residential service, and
determination of specialist forensic disability accommodation.
Section 61A provides for the circumstances where a residency in
a residential service is terminated. This includes--
• if the period of residency has expired and there is no
written extension; or
• if a person is no longer subject to a direction or order
requiring them to live at the residential service and
suitable alternative premises are available; or
• if the person has moved to another premises; or
• if the person has resided elsewhere for at least 3 months
in accordance with a court order or direction and there
has been no agreement to continue the residential
service; or
• if the disability service provider gives notice in writing
that the residency will end; or
• by agreement in writing.
14
Under a new section 61A(2), a disability service provider who is
a funded service provider or a contracted service provider must
comply with any guidelines issued by the Secretary regarding
termination of residency and notify the Secretary of any proposed
termination under new section 61A(1)(d) and (e) at least 30 days
prior to the termination.
Section 61B enables the Secretary to determine accommodation
provided by a disability service provider that provides forensic
disability support and treatment to people with an intellectual
disability, an acquired brain injury or certain neurological
impairments to be specialist forensic disability accommodation.
If the Secretary does so, the Secretary must notify the Public
Advocate within 7 days.
Clause 34 amends section 62(3) of the Disability Act 2006 so that it is not
an offence under section 62 to interfere with a person's rights if
the interference is in accordance with new section 58(2A)
(inserted by clause 30(3)).
Clause 35 inserts a new section 129AA before section 129 of the Disability
Act 2006. This enables the Minister to specify Minister
approved premises by notice published in the Government
Gazette.
Clause 36 amends section 129 of the Disability Act 2006 to extend
community visitors' visitation rights to Minister approved
premises.
Subclause (1) amends the heading to section 129 to reflect that
section 129 applies to visiting "Minister approved premises",
along with residential services and NDIS dwellings.
Subclause (2) inserts a new section 129(1C) which allows a
community visitor to visit any Minister approved premises with
or without any previous notice at the times and periods that the
community visitor thinks fit.
Subclause (3) inserts a new section 129(5A) to enable the
Minister to direct a community visitor to visit a Minister
approved premises at the times that the Minister directs.
Clause 37 amends section 130 of the Disability Act 2006.
15
Subclause (1) amends section 130(3) of the Disability Act 2006
to ensure a community visitor's inspection powers when visiting
a residential service apply to both NDIS participants and DSOA
clients.
Subclause (2) inserts a new subsection (4) after section 130(3) of
the Disability Act 2006 to provide for a community visitor's
entitlements when visiting a Minister approved premises. These
include the ability to inspect any part of the premises in which a
person with a disability, an NDIS participant or a DSOA client is
living, to see any person with a disability, NDIS participant or
DSOA client living in the premises and to make enquiries and
inspect documents relating to a person with a disability, an NDIS
participant or a DSOA client.
Clause 38 inserts new section 131B after section 131A of the Disability
Act 2006. This provides for a process by which any Minister
approved premises resident or any person on their behalf may
request the disability service provider or registered NDIS
provider (as appropriate) to arrange for the Minister approved
premises resident to be seen by a community visitor. The
provider must notify the Community Visitors Board within
72 hours of the request being received. Failure to notify is an
offence punishable by a maximum penalty of 5 penalty units.
The Community Visitors Board must respond to the request
within 7 days of receiving it. The Community Visitors Board
may refuse a request if it considers that the request is vexatious,
frivolous or lacking in substance.
Clause 39 amends section 132 of the Disability Act 2006 to insert a new
subsection (2A), which provides that if a disability service
provider or registered NDIS provider is present when a
community visitor visits a Minister approved premises, the
disability service provider or registered NDIS provider must keep
a record of the visit. This is to ensure appropriate record-keeping
of these types of visits. Failure to comply is an offence
punishable by a maximum penalty of 5 penalty units.
Clause 40 amends the heading to Part 6A of the Disability Act 2006 to omit
the reference to registered NDIS providers as Part 6A will apply
to appointment of Authorised Program Officers by both disability
service providers and registered NDIS providers.
16
Clause 41 substitutes section 132ZI of the Disability Act 2006 so that a
disability service provider or a registered NDIS provider must
appoint at least one Authorised Program Officer if the provider
intends to use restrictive practices on a person under Part 7 or
compulsory treatment or restrictive practices on a person under
Part 8. Currently, section 132ZI only imposes this requirement
on registered NDIS providers as the Secretary currently approves
Authorised Program Officer appointments for disability service
providers under Part 7. This is to ensure that there are consistent
obligations for both types of providers.
Clause 42 amends section 132ZJ of the Disability Act 2006 to provide that
disability service providers, like registered NDIS providers, are
also required to seek the Senior Practitioner's approval for any
proposed appointment of an Authorised Program Officer.
Clause 43 amends section 132ZL of the Disability Act 2006 so that the
Senior Practitioner must notify the Secretary in the case of a
disability service provider or the NDIS Commissioner in the case
of a registered NDIS provider if the Senior Practitioner refuses to
approve an appointment, or revokes an appointment, of an
Authorised Program Officer. Currently, this section only
requires notice to the NDIS Commissioner, which will not be
relevant for non-NDIS participants.
Clause 44 amends section 132ZM of the Disability Act 2006 so that the
obligations on the Senior Practitioner to notify a registered NDIS
provider before refusing, or revoking, an Authorised Program
Officer appointment also apply to disability service providers.
This is to reflect the new requirement that disability service
providers must seek the Senior Practitioner's approval for any
proposed appointment of an Authorised Program Officer.
Clause 45 amends section 132ZN of the Disability Act 2006 so that
disability service providers, in addition to registered NDIS
providers, may seek VCAT review of the Senior Practitioner's
decision to refuse to approve the appointment, or revoke the
appointment, of an Authorised Program Officer. This is to reflect
the new requirement that disability service providers seek the
Senior Practitioner's approval for any proposed appointment of
an Authorised Program Officer.
17
Clause 46 amends section 132ZO of the Disability Act 2006 so that the
Senior Practitioner may issue directions to disability service
providers, in addition to registered NDIS providers, regarding
training, qualifications or other matters relating to Authorised
Program Officers. In addition, the Senior Practitioner is given
the new power to issue directions requiring a disability service
provider or registered NDIS provider to appoint an Authorised
Program Officer.
Clause 47 substitutes a new Part 7 for existing Parts 6B and 7 of the
Disability Act 2006. New Part 7 relates to the use of restrictive
practices by disability service providers and registered NDIS
providers. Currently, use of restrictive practices by registered
NDIS providers is addressed by Part 6B, and their use by
disability service providers is addressed by Part 7. It is intended
that these be consolidated into one part to remove any
inconsistencies as most disability service providers are also
registered NDIS providers.
New section 133(1) and (2) provides the application of Part 7.
Part 7 applies in respect of persons who receive disability
services, are NDIS participants or are DSOA clients. Part 7 does
not apply to persons for whom a treatment plan is in force or is
required to be prepared under Part 8 unless the person is an NDIS
participant who is subject to--
• restrictive practices from a registered NDIS provider;
and
• a treatment plan prepared by or on behalf of the
Authorised Program Officer for a disability service
provider that is not in accordance with the requirements
of the NDIS (Restrictive Practices and Behaviour
Support) Rules.
New section 133(3) provides that the purpose of Part 7 is to
protect the rights of these people by ensuring the use of
restrictive practices and regulated restrictive practices is
appropriately authorised.
New section 133(4) provides that a provider that is both a
disability service provider and a registered NDIS provider is only
required to comply with Part 7 in one of those capacities, but not
both.
18
New section 134 provides that an Authorised Program Officer
must ensure that any restrictive practice used on a person in
respect of whom Part 7 applies in the provision of a disability
service, services under the NDIS or supports under the
Commonwealth Disability Support for Older Australians
program or a prescribed program for which the Authorised
Program Officer is responsible is administered in accordance
with Part 7. This ensures the proper administration of any
restrictive practices.
New section 135 provides that a disability service provider or
registered NDIS provider must not use a regulated restrictive
practice on a person in respect of whom Part 7 applies except for
in specified circumstances or where provided for in section 137
or 145.
New section 136 provides the circumstances in which an
Authorised Program Officer may authorise the use of a regulated
restrictive practice. An authorisation may be subject to any
conditions an Authorised Program Officer considers appropriate,
other than conditions requiring the variation of a behaviour
support plan or NDIS behaviour support plan. An authorisation
will be in force until it is revoked, the person's behaviour support
plan or NDIS behaviour support plan expires, or the person is
given a new plan.
New section 137 provides for the use of a regulated restrictive
practice by a disability service provider on an NDIS participant
or a DSOA client who has an NDIS behaviour support plan if the
specified criteria are satisfied, including authorisation by an
Authorised Program Officer and the Senior Practitioner's
approval (if required). This is to provide clarity to disability
service providers regarding what requirements need to be met if a
person already has an NDIS behaviour support plan. Disability
service providers who use regulated restrictive practices on a
person under new section 137 must give a report to the Senior
Practitioner, which must include all instances in which the
regulated restrictive practices were used and other details as
required by the Senior Practitioner.
New section 138 requires that, where a disability service provider
providing a disability service to a person in respect of whom
Part 7 applies is satisfied that the criteria specified in new section
136(1)(a) and (b) apply, proposes to use a regulated restrictive
practice on the person and the person receiving the disability
19
service does not have an NDIS behaviour support plan that is in
accordance with the NDIS (Restrictive Practices and Behaviour
Support) Rules, that the disability service provider must ensure a
behaviour support plan is prepared for the person. The plan must
be prepared in consultation with the specified persons and must
include the specified matters including how the regulated
restrictive practice will be used, how it will benefit the person,
and strategies for the reduction and elimination of the need to use
the practice on the person.
New section 139 provides for the mandatory review at the
specified intervals of behaviour support plans prepared under
new section 138 by disability service providers. A person subject
to the plan may also request a review. As part of the review, the
disability service provider must engage in consultation with
specified persons (including the person subject to the behaviour
support plan, their guardian, and other providers), and must
consider the specified matters including strategies to reduce and
eliminate the need for the use of the regulated restrictive practice
on the person.
New section 140 requires an Authorised Program Officer to
arrange for an independent person to explain to the person the
proposed use of a regulated restrictive practice on the person, and
the person's review rights. New section 140 also requires the
Authorised Program Officer to ensure an independent person
explains changes to a behaviour support plan or NDIS behaviour
support plan unless the matters in subsection (3) apply.
Subsections (4) and (6) require the independent person to notify
the Senior Practitioner of the specified matters, and under
subsection (5), the independent person may notify the Public
Advocate of those matters. Subsection (7) enables the
independent person to consult with the Senior Practitioner if the
independent person is concerned with compliance issues in the
development or authorisation of a behaviour support plan or
NDIS behaviour support plan. Subsections (8) and (9) ensure the
independence of the independent person by specifying who an
independent person may not be, and requiring the Authorised
Program Officer to arrange for a different independent person if
the person subject to the restrictive practices considers that the
person assisting them is not independent.
20
New section 141 provides that the Public Advocate may, after
considering a notification received under section 140(5), refer the
matter to the Senior Practitioner, initiate an application to VCAT
to review the specified decisions, or disclose information about
the use or proposed use of a regulated restrictive practice to the
Secretary or to the NDIA or the NDIS Quality and Safeguards
Commission, as applicable. Subsection (2) clarifies that these
powers are in addition to the Public Advocate's powers under the
Guardianship and Administration Act 2019.
New section 142 outlines requirements regarding the provision of
information in relation to the use of regulated restrictive
practices. This includes a requirement that the Authorised
Program Officer provide the Senior Practitioner a copy of the
person's behaviour support plan or NDIS behaviour support plan,
the name and details of the independent person who assisted the
person, and, if applicable, 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 person's
NDIS behaviour support plan. It also requires a disability service
provider or registered NDIS provider to give and explain a notice
to the person on whom a regulated restrictive practice will be
used. The notice must be explained in accordance with section 7
of the Disability Act 2006 and must confirm that authorisation or
approval was obtained for the use of a regulated restrictive
practice, and outline that the person may seek review of the
authorisation or approval.
New section 143 provides for the approval of the use of the
regulated restrictive practices specified in subsection (1) by the
Senior Practitioner upon being satisfied of the matters in
subsection (2), including, among other things, that the use is
necessary, the least restrictive form possible in the circumstances,
and the use is included and is in accordance with the behaviour
support plan or NDIS behaviour support plan. Under
subsection (3), an approval is in force until it is revoked, the
person's behaviour support plan or NDIS behaviour support plan
expires, or the person is given a new behaviour support plan or
NDIS behaviour support plan. Subsection (4) enables the Senior
Practitioner to lodge evidence with the NDIS Commissioner or
the registered NDIS provider that the proposed use of a regulated
restrictive practice on an NDIS participant or a DSOA client is
authorised by the Authorised Program Officer and if required,
approved by the Senior Practitioner.
21
New section 144 provides for reviews by VCAT. Subsection (1)
enables a person to whom Part 7 applies to apply to VCAT for a
review of an Authorised Program Officer's decision under
section 136 to authorise the use of a regulated restrictive practice
on the person, or if the use also requires approval of the Senior
Practitioner, a review of the Authorised Program Officer's
decision under section 136 and the Senior Practitioner's decision
to approve that use under section 143. Subsection (2) enables a
disability service provider or registered NDIS provider to apply
to VCAT for a review of a decision by the Senior Practitioner not
to approve the use of a regulated restrictive practice under
section 143. Subsection (3) provides the timing within which an
application for review must be made. Subsections (4), (5), (6)
and (7) provide for VCAT's powers upon an application under
subsection (1) or (2).
New section 145 sets out the criteria which must be satisfied for a
registered NDIS provider or disability service provider to use
regulated restrictive practices in an emergency on persons to
whom Part 7 applies who do not have a behaviour support plan or
an NDIS behaviour support plan which provides for the proposed
use of restrictive practices, or who have a plan in which the use
of restrictive practices has not been authorised by the Authorised
Program Officer or approved by the Senior Practitioner, as
required. If the provider intends to continue to use a regulated
restrictive practice, the provider must appoint an Authorised
Program Officer under Part 6A if the provider has not already
done so, subject to obtaining the necessary authorisation from the
Authorised Program Officer and approval from the Senior
Practitioner (if required).
New section 146 provides that the Senior Practitioner may give a
written direction to the providers specified in subsection (2) in
relation to the specified matters including the approval,
regulation or prohibition of the use of restrictive practices.
Subsection (3) enables the Senior Practitioner to require a
registered NDIS provider to provide a report to the Senior
Practitioner on the use of restrictive practices by the registered
NDIS provider.
New section 147 requires that the Authorised Program Officer for
a disability service provider must, on a monthly basis, give a
report to the Senior Practitioner regarding the emergency use of
regulated restrictive practice by disability service providers under
22
section 145. The report must include the matters specified in
subsection (2).
New section 148 requires the Senior Practitioner to monitor
whether the use of a regulated restrictive practice by a disability
service provider is in accordance with Part 7 and advise the
Authorised Program Officer as to the intervals, not exceeding
12 months, in which a report is required regarding the
implementation of a person's behaviour support plan or NDIS
behaviour support plan. The report must meet the requirements
specified in subsection (2) and under subsection (3), the Senior
Practitioner may make and issue guidelines in relation to
preparation of the reports, including the provision of a
consolidated report by multiple providers.
New section 149 provides for certain offences. Under
subsection (1), it is an offence for a disability service provider or
a registered NDIS provider to use regulated restrictive practices
unless it is in accordance with the specified sections. Under
subsection (2), except in accordance with section 145
(regarding the use of regulated restrictive practices in the case of
emergencies), it is an offence for a disability service provider or a
registered NDIS provider to use restrictive practices if the Senior
Practitioner has not approved the appointment of the provider's
Authorised Program Officer. Failure to comply with either of
these offences is punishable by a maximum penalty of 240
penalty units.
Clause 48 inserts new subsections (2) and (3) into section 150A of the
Disability Act 2006 regarding the restriction on liberty or
freedom of movement.
New subsection (2) provides that a registered NDIS provider
must not detain a person with an intellectual disability otherwise
than in accordance with Part 8.
Subsection (3) provides that a disability service provider or a
registered NDIS provider must not use compulsory treatment on
a person if the Senior Practitioner has not approved the
appointment of the provider's Authorised Program Officer.
Failure to comply with either section 150A(2) or (3) is an offence
punishable by a maximum penalty of 240 penalty units.
Clause 49 amends section 153 of the Disability Act 2006 to adopt gender
inclusive language.
23
Clause 50 amends section 159(1) of the Disability Act 2006 so that the
requirement for a resident detained in a residential treatment
facility, or absent from one on leave, to be subject to security
conditions considered necessary by the Authorised Program
Officer is subject to new section 159A being inserted by this Bill,
which provides when security conditions must be approved by
the Secretary.
Clause 51 inserts a new section 159A into the Disability Act 2006 to
require that the Secretary approve a security condition that is a
restrictive practice and which will apply to all residents detained
in a residential treatment facility. The Secretary may approve
such a security condition if it is for the purpose of the supervision
of residents or security of the residential treatment facility. The
Secretary must consult the Senior Practitioner before making a
decision.
Clause 52 amends section 163(3) of the Disability Act 2006 to adopt
gender inclusive language.
Clause 53 amends section 165(3) of the Disability Act 2006 to adopt
gender inclusive language.
Clause 54 amends section 167(2) and (2A) of the Disability Act 2006 to
adopt gender inclusive language.
Clause 55 amends the note at the foot of section 184(2) of the Disability
Act 2006 to substitute "section 201B(2)" with the words
"Division 6". This is because section 201B(2) is being repealed
and the new Division 6 will regulate the use of restrictive
practices on persons subject to supervised treatment orders.
Clause 56 substitutes sections 185 to 191 of the Disability Act 2006 and
inserts new sections 191A, 191B and 191C. This is because the
Secretary will no longer be approving the ability for disability
services to use restrictive practices or their Authorised Program
Officers, so current sections 185 to 190 are no longer required.
New section 185 inserts a new requirement that if a person is
subject to a supervised treatment order, only a disability service
provider or a registered NDIS provider may provide disability
services or services under the NDIS (as the case requires) to that
person.
24
New section 186 provides that an Authorised Program Officer for
a primary service provider must ensure that any supervised
treatment used in the provision of a disability service or services
under the NDIS by the primary service provider is administered
in accordance with Division 5 of Part 8 of the Disability
Act 2006.
New section 187 provides a new power for the Senior
Practitioner to approve accommodation at which supervised
treatment may be provided on application by a disability service
provider or registered NDIS provider. The Senior Practitioner
must not approve accommodation unless satisfied that the
accommodation is provided by, on behalf of, or by arrangement
with, the applicant, that the Authorised Program Officer for the
applicant has obtained, applied for or intends to apply for a
supervised treatment order in respect of the person, that the
applicant will provide the supervised treatment to the person, and
that the accommodation is suitable for persons to reside in for the
purposes of receiving supervised treatment. The Senior
Practitioner may at any time in writing impose, vary or revoke a
condition on the approval of accommodation, or revoke the
approval of accommodation. The Residential Tenancies
Act 1997 does not apply in respect of accommodation approved
under this section.
New section 188 provides that the Senior Practitioner must notify
the Public Advocate of their approval of accommodation under
section 187 within 7 days of that approval (providing the expiry
date of that approval if applicable). Similarly, the Senior
Practitioner must notify the Public Advocate of any revocation of
approval under section 187 within 7 days of making the
revocation.
New section 189 provides requirements for treatment plans
required under section 191. The treatment plan must include
provisions to specify the treatment that will be provided; the
expected benefit to the person; any restrictive practices to be
used; details of each provider that will be providing services to
the person and the nature of those services; the level of
supervision which will be required to ensure the person
participates in the treatment; and a proposed process for the
transition of the person to lower levels of supervision and, if
appropriate, to living in the community without a supervised
treatment order being required. A treatment plan prepared under
25
this section for an NDIS participant must be prepared in
accordance with the requirements of Part 8 and the NDIS
(Restrictive Practices and Behaviour Support) Rules and is taken
to be the NDIS participant's NDIS behaviour support plan.
New section 190 provides that, if a treatment plan has been
prepared under section 189 and approved by the Senior
Practitioner, the Authorised Program Officer for a primary
service provider must, before applying for a supervised treatment
order under section 191(1), ensure that the treatment plan is
explained in accordance with section 7 and given to that person
and the person's guardian (if any).
New section 191 provides for applications to be made to VCAT
by an Authorised Program Officer for a supervised treatment
order.
Subsection (1) provides that the Authorised Program Officer for a
primary service provider may apply to VCAT for a supervised
treatment order if--the person has an intellectual disability; the
person is residing in an accommodation type specified in
subsection (1)(b); the Senior Practitioner has approved a
treatment plan prepared by or on behalf of the applicant under
section 189; and the Authorised Program Officer considers that
the person meets the criteria in section 193(1A).
Subsection (2) provides that the Senior Practitioner may direct
the Authorised Program Officer for a primary service provider to
make an application under subsection (1) if the Senior
Practitioner considers that the person has an intellectual
disability, is residing in accommodation of the type specified in
subsection (1)(b) and is being detained to prevent a significant
risk of serious harm to another person without a supervised
treatment order applying.
New section 191A provides for certain information to be
included in an application for a supervised treatment order under
section 191(1).
Subsection (1) requires an application to include a certificate
given by the Senior Practitioner which specifies that the person
subject to the application has an intellectual disability; is residing
in accommodation of a type specified in section 191(1)(b); poses
a significant risk of serious harm to another person which cannot
be substantially reduced by using other less restrictive means
other than a supervised treatment order; and has a treatment plan
26
that has been approved by the Senior Practitioner. It also
requires an application to include the risk assessment reviewed
by the Senior Practitioner to inform the assessment of significant
risk of serious harm to others.
Subsection (2) provides that if an application is made in respect
of a person who is residing in accommodation approved by the
Senior Practitioner under section 187, the application must
include a copy of the written approval.
Subsection (3) provides that an application may include
information informing the treatment plan or any risk assessment
prepared for the person in respect of whom the application is
being made.
Subsection (4) provides that VCAT, in a proceeding relating to
an application under section 191(1), may order the applicant or
the Senior Practitioner to produce information described in
subsection (3) or arrange additional assessments of the person in
respect of whom the application for a supervised treatment order
is made (except as to whether or not the person has an intellectual
disability) and produce a report of that additional assessment.
New section 191B requires the Senior Practitioner to give written
notice to the NDIS Commissioner that a certificate referred to in
section 191A(1)(a) has been given by the Senior Practitioner in
relation to an NDIS participant.
New section 191C provides requirements regarding notifications
and parties to applications for a supervised treatment order under
section 191(1). Subsection (1) requires an applicant to give
notice of an application under section 191(1) to the person in
respect of whom the supervised treatment order is proposed to be
made, the Senior Practitioner, and the Public Advocate.
Subsection (2) provides that the person in respect of whom the
supervised treatment order is proposed to be made is a party to a
proceeding. Subsections (3) and (4) provide that on the
application of the Senior Practitioner or the Public Advocate,
VCAT must join them as a party to a proceeding. Subsection (5)
provides that if the Senior Practitioner or Public Advocate is
joined as a party to a proceeding, they are a party to a proceeding
relating to any other application under section 191(1) concerning
the person in respect of whom the supervised treatment order is
proposed to be made.
27
Clause 57 amends the heading to section 192 of the Disability Act 2006 to
reflect that the Authorised Program Officer will be the entity
requesting interim supervised treatment orders instead of a
disability service provider or registered NDIS provider.
Clause 58 amends section 193 of the Disability Act 2006, which provides
the power for VCAT to make a supervised treatment order in
response to an application by an Authorised Program Officer
under section 191.
Subclause (1) amends section 193(1)(a), (b) and (c) of the
Disability Act 2006 to update section references regarding
matters that VCAT must be satisfied of on an application under
section 191, which are now specified in section 193(1A) and
191(1)(a) to (c).
Subclause (2) inserts a new section 193(1A) into the Act to
provide the matters for which VCAT must be satisfied before
making a supervised treatment order. These are that the person
has previously exhibited a pattern of violent or dangerous
behaviour causing serious harm or exposing another person to a
serious risk of harm; there is a significant risk of serious harm to
another person which cannot be substantially reduced by using
less restrictive means; the services to be provided to the person in
accordance with the treatment plan will be of benefit to the
person and substantially reduce the significant risk of serious
harm to another person; the person is unable or unwilling to
consent to voluntarily complying with a treatment plan to
substantially reduce the significant risk of serious harm to
another person; and if it is necessary to detain the person to
ensure compliance with the treatment plan and prevent a
significant risk of serious harm to another person.
Subclause (3) substitutes section 193(2A) of the Disability
Act 2006 and inserts a new section 193(2B). New section
193(2A) provides that on an application under section 191(1) for
an NDIS participant whose treatment plan is to be used as the
person's NDIS behaviour support plan who will be subject to
restrictive practices by a registered NDIS provider, VCAT must
not specify that the treatment plan of an NDIS participant be
varied with respect to any regulated restrictive practices or in
such a manner that the treatment plan would not be able to be
implemented. This is required as NDIS behaviour support plans
28
must be prepared in accordance with the NDIS
(Restrictive Practices and Behaviour Support) Rules.
New section 193(2B) provides that in deciding whether to make a
supervised treatment order, VCAT may consider any relevant
information, including the specified information in paragraphs (a)
and (b) and any relevant information obtained in an earlier
proceeding relating to the person in respect of whom the
supervised treatment order is proposed to be made. This
provision is intended to reflect, for transparency, the existing
powers and processes of VCAT, including under section 98 of
the Victorian Civil and Administrative Tribunal Act 1998,
which provides that VCAT is not bound by the rules of evidence
and may admit into evidence the contents of any document,
including any material put before VCAT at a previous
proceeding, if VCAT considers it desirable to do so. This
provision will operate in conjunction with section 97 of the
Victorian Civil and Administrative Tribunal Act 1998 which
provides that VCAT must act fairly and according to the
substantial merits of the case in all proceedings and section
98(1)(a) of the Victorian Civil and Administrative Tribunal
Act 1998 which provides that VCAT is bound by the rules of
natural justice. The policy intent is that any material that would
be considered by VCAT in an application for a supervised
treatment order would be disclosed to the parties to the
proceeding, in line with existing legal obligations and processes
of VCAT. This would include the person to whom the proposed
supervised treatment order would apply, and that person would
be given the opportunity to consider and respond to that material.
Subclause (4) inserts reference to the primary service provider in
section 193(3)(a) of the Disability Act 2006 so that the
supervised treatment order must specify that the Authorised
Program Officer of a primary service provider is responsible for
implementing the order. It also substitutes section 193(3)(b) of
the Disability Act 2006 to provide that a supervised treatment
order must require the person to whom the supervised treatment
order applies to reside in accommodation of the type specified in
the certificate referred to section 191A(1)(a) or of a type
specified in section 191(1)(b) and approved in writing by the
Senior Practitioner. Presently, section 193(3)(b) refers solely to
residents in a residential service or an SDA enrolled dwelling.
Clause 59 amends section 194 of the Disability Act 2006.
29
Subclause (1) inserts reference to primary service providers in
section 194(1)(a) of the Disability Act 2006 so that the Public
Advocate's power to apply for a specified order relates to whether
the Authorised Program Officer of the primary service provider
applied for a supervised treatment order.
Subclause (2) inserts new section 194(1A), (1B) and (1C) into the
Disability Act 2006. Section 194(1A) provides that the Public
Advocate must notify the Senior Practitioner of an application
under subsection (1). Section 194(1B) provides that both the
person in respect of whom the supervised treatment order is
proposed to be made and the Authorised Program Officer for the
person's primary service provider are parties to a proceeding
relating to an application under subsection (1). Section 194(1C)
provides that on the application of the Senior Practitioner, VCAT
must join the Senior Practitioner as a party to a proceeding
relating to an application under subsection (1).
Clause 60 inserts new sections 194A, 194B and 194C into the Disability
Act 2006.
New section 194A provides the responsibilities of Authorised
Program Officers for primary service providers, including
requirements to notify, within the specified timeframes, disability
service providers or registered NDIS providers specified in the
treatment plan of the conditions and requirements of the
supervised treatment order. It also requires the Authorised
Program Officer to notify the Senior Practitioner as soon as
practicable after becoming aware that a disability service
provider or a registered NDIS provider specified in a treatment
plan is not complying with a condition of the supervised
treatment order or is allowing the person who is subject to the
supervised treatment order to contravene the order.
New section 194B provides the responsibilities of disability
service providers and registered NDIS providers specified in a
treatment plan who are not the primary service provider. Those
disability service providers and registered NDIS providers must
take reasonable steps to ensure that they do not cause the person
who is subject to the supervised treatment order to contravene
that order, and notify the Senior Practitioner and the primary
service provider as soon as practicable after becoming aware that
the person who is subject to the supervised treatment order has
30
contravened a condition of the order. The notification may be
given orally.
New section 194C provides that an Authorised Program Officer
for a disability service provider or a registered NDIS provider
specified in a treatment plan under a supervised treatment order
(other than the primary service provider) must ensure that the
provider implements any part of the treatment plan that concerns
the provision of services by that provider.
Clause 61 amends section 195 of the Disability Act 2006.
Subclause (1) inserts reference to a primary service provider in
section 195(2) of the Disability Act 2006 to specify that it is the
Authorised Primary Officer for a primary service provider that is
required to provide a report on the implementation of a
supervised treatment order to the Senior Practitioner.
Subclause (2) inserts new section 195(2A) and (2B) into the Act
to require the provision of a report to the Senior Practitioner on
the implementation of the treatment plan. Subsection (2A)
requires the Authorised Program Officers for a disability service
provider or a registered NDIS provider specified in a treatment
plan who is not the primary service provider to provide a report if
requested to do so by the Senior Practitioner. The report must be
provided at the intervals requested. Subsection (2B) requires an
Authorised Program Officer for a disability service provider or a
registered NDIS provider specified in a treatment plan to provide
a report at the intervals, not exceeding 6 months, specified by the
Senior Practitioner.
Subclauses (3) and (4) amend the application of section 195(4)
and (5) of the Disability Act 2006, regarding material changes to
treatment plans, by specifying they are subject to
subsections (5A) and (5B).
Subclause (5) substitutes section 195(5A) of the Disability
Act 2006 to provide that in the case of an NDIS participant who
will be subject to the use of restrictive practices by a registered
NDIS provider under a treatment plan, if a material change to a
treatment plan relates to an increase in the level of supervision or
restriction, the Senior Practitioner must not approve the change.
Instead, the Authorised Program Officer must apply to VCAT for
a variation of the treatment plan (if the proposed variation is to
the treatment plan and does not relate to a regulated restrictive
practice) or a review of the supervised treatment order
31
(if, following a review of the NDIS participant's treatment plan, a
material change is made to that plan relating to the use of a
regulated restrictive practice).
Subclause (6) amends section 195(5B) of the Disability Act 2006
so that despite subsection (5) and subsection (5A), the process in
section 195(5B) for approval of material changes in an
emergency applies to an NDIS participant who will be subject to
the use of restrictive practices by a registered NDIS provider
under a treatment plan attached to a supervised treatment order
(which is the person's NDIS behaviour support plan). Currently,
this process applies despite subsection (5A) for a person subject
to a supervised treatment order, with a treatment plan that has an
NDIS behaviour support plan attached to it, obtained by an
Authorised Program Officer of a registered NDIS provider.
Subclause (7) inserts a new section 195(5C) into the Act to
provide that a change to the disability service providers and
registered NDIS providers (other than the primary service
provider) specified in a treatment plan may be made with the
approval of the Senior Practitioner.
Subclause (8) inserts a new section 195(7) into the Act to provide
that any disability service provider or registered NDIS provider
providing disability services or services under the NDIS to the
person who is subject to the treatment plan may make a request
to the Senior Practitioner to make a material change to that
treatment plan.
Clause 62 amends section 196 of the Disability Act 2006 in relation to
applications for review, variation or revocation of supervised
treatment orders or treatment plans.
Subclause (1) amends section 196(1) of the Disability Act 2006
to provide that an application is to be made by the Authorised
Program Officer of the primary service provider. It also limits
the ability to apply for a variation if new section 196(2) applies.
Subclause (2) substitutes section 196(2) of the Disability
Act 2006 to provide that an application to vary a supervised
treatment order or treatment plan may not be made if the person
who is subject to the supervised treatment order is an NDIS
participant, the treatment plan is also to be used as the NDIS
participant's behaviour support plan, a registered NDIS provider
will administer the restrictive practices, and the proposed
variation includes any regulated restrictive practices or would
32
result in the treatment plan being unable to be implemented.
Presently, section 196(2) provides notification requirements
which will be captured in new section 196(4A).
Subclause (3) inserts new section 196(4A), (4B), (4C), (4D), (4E)
and (4F) into the Act.
Section 196(4A) requires that the applicant under section 196(1)
notify the Senior Practitioner and the Public Advocate of their
application.
Section 196(4B) confirms the parties to a proceeding for an
application under section 196(1) are the person who is the subject
to the supervised treatment order and the Authorised Program
Officer for the person's primary service provider.
Section 196(4C) and (4D) provide that if the Senior Practitioner
and/or Public Advocate were parties to a proceeding under
section 191 or 194, they are parties to a proceeding relating to an
application under section 196(1).
Section 196(4E) and (4F) require VCAT to join the Senior
Practitioner and/or the Public Advocate as a party to the
proceeding under section 196(1) on their application.
Subclause (4) amends section 196(5) of the Disability Act 2006
so that VCAT must be satisfied with the matters in sections
191(1)(a) to (c) and 193(1A) before making the specified orders.
This reflects new numbering. Further, subclause (4) substitutes
section 196(5)(a)(ii) of the Disability Act 2006 so that VCAT
may confirm the supervised treatment order or treatment plan
subject to any variation VCAT considers appropriate, unless the
order is for an NDIS participant who will be subject to the use of
restrictive practice by a registered NDIS provider, the person's
treatment plan is also their NDIS behaviour support plan, and the
proposed variation relates to--any regulated restrictive practices
or would result in the NDIS participant's treatment plan being
unable to be implemented.
Subclause (5) substitutes section 196(7)(b) of the Disability
Act 2006 with a new section 196(7)(b) and (c) to provide that
VCAT must not confirm a variation or a supervised treatment
order or treatment plan unless satisfied that--
• if the supervised treatment order is for an NDIS
participant who will be subject to the use of restrictive
practices by a registered NDIS provider and the
33
treatment plan is also to be used as the NDIS
participant's NDIS behaviour support plan, the proposed
variation does not relate to any regulated restrictive
practices; and would not result in the NDIS participant's
treatment plan being unable to be implemented; and
• if the proposed variation is to change the primary
service provider stated in the supervised treatment
order, the proposed new primary service provider
satisfies the requirements in section 3C(1) or (2) of the
Disability Act 2006.
Subclause (6) amends section 196(8)(a) and (b) of the Disability
Act 2006 to substitute the reference to section 191(1) or (1A) to
reflect that the matters which VCAT is to be satisfied of on an
application for revocation of a supervised treatment order are
now provided in sections 191(1)(a) to (c) and 193(1A).
Subclause (7) amends section 196(9)(a) of the Disability
Act 2006 to provide that VCAT must not confirm a supervised
treatment order, or confirm it subject to variations, on an
application to revoke the order unless satisfied that the relevant
provider can implement the order or variation. It also substitutes
section 196(9)(b) so that VCAT must not confirm a supervised
treatment order, or confirm an order with a variation under
section 196(8)(b) if the supervised treatment order is for an NDIS
participant who will be subject to the use of restrictive practices
by a registered NDIS provider and the treatment plan is also the
person's NDIS behaviour support plan, unless satisfied that the
proposed variation does not relate to any regulated restrictive
practices, does not relate to the NDIS participant's treatment plan
being unable to be implemented.
Clause 63 substitutes section 196A of the Disability Act 2006 to replace the
current process to apply to VCAT for a determination regarding
the expiry of a supervised treatment order. New section 196A
will require the Authorised Program Officer for the primary
service provider to notify the person who is subject to the
supervised treatment order, the Public Advocate, the Senior
Practitioner and any disability service provider or registered
NDIS provider specified in the treatment plan under the
supervised treatment order of specified matters no less than
60 days before the expiry of a supervised treatment order.
34
The specified matters include the expiry date of the supervised
treatment order, whether the Authorised Program Officer intends
to apply under section 191(1) of the Disability Act 2006 for
another supervised treatment order in respect of the person, and,
if the Authorised Program Officer is not eligible to apply for
another supervised treatment order, for the purposes of an
application under section 191(1), whether the Authorised
Program Officer considers that a supervised treatment order is
necessary.
The Senior Practitioner may make a direction to, and the Public
Advocate may apply to VCAT for an order, directing the
Authorised Program Officer of a primary service provider to
make an application under section 191(1) if they consider that a
supervised treatment order continues to be required to prevent a
significant risk of serious harm to another person. New section
196A(5) to (8) of the Disability Act 2006 provide for procedures
in relation to an application to VCAT by the Public Advocate,
including providing for the parties to the proceeding and the
power for VCAT to make orders directing that the Authorised
Program Officer make an application under section 191(1).
Clause 64 amends section 197 of the Disability Act 2006 regarding
applications to VCAT for a rehearing of an application under this
Division.
Subclause (1) inserts a reference to the primary service provider
in section 197(1) of the Disability Act 2006 to specify that it is
the Authorised Program Officer for a primary service provider
that can make an application to VCAT.
Subclause (2) inserts new section 197(6), (7), (8) and (9) into the
Act to specify the parties to a proceeding under section 197(1).
New section 197(6) requires an applicant under section 197(1) to
notify the Senior Practitioner and the Public Advocate of an
application.
New section 197(7) provides that the parties to a proceeding
relating to an application under section 197(1) include the person
who is subject to the supervised treatment order, the Authorised
Program Officer for the person's primary service provider, and
the Senior Practitioner and the Public Advocate if they were
parties to the proceeding for which the application for a rehearing
relates.
35
New section 197(8) and (9) require VCAT to join the Senior
Practitioner and the Public Advocate as a party to a proceeding
relating to an application under section 197(1) on their
application.
Clause 65 amends section 199 of the Disability Act 2006 regarding the
Senior Practitioner's ability to make an assessment order.
Subclause (1) inserts reference to a primary service provider in
section 199(1) of the Disability Act 2006 to specify that it is the
Authorised Program Officer for a primary service provider that
may apply to the Senior Practitioner for an assessment order.
Subclause (2) substitutes section 199(2)(b) of the Disability
Act 2006 to provide that the Authorised Program Officer may
make an application to the Senior Practitioner for an assessment
order if they consider that the person is residing in
accommodation of a type specified in section 191(1)(b).
Presently, section 199(2)(b) requires the Authorised Program
Officer to consider that the person is receiving residential
services or is an SDA resident living in an SDA enrolled
dwelling provided under an SDA residency agreement.
Clause 66 amends section 201 of the Disability Act 2006 regarding the
apprehension of a person subject to a supervised treatment order
absent without approval.
Subclause (1) substitutes a new section 201(1) to provide a
revised list of the persons who may apprehend a person who is
subject to a supervised treatment order who is absent without
approval from the accommodation that the person is required to
reside in under the order at any time for the purpose of returning
them to that accommodation. Those persons are--
• a police officer; or
• the person in charge of the disability service provider
providing disability services at the accommodation; or
• the person in charge of the registered NDIS provider
providing daily independent living supports at the
accommodation; or
• a person who is employed or engaged by, or who is
providing disability services or services under the NDIS
at the accommodation for or on behalf of, the disability
service provider or registered NDIS provider referred to
36
above and who is authorised by the person in charge of
the disability service provider or registered NDIS
provider to apprehend persons subject to supervised
treatment orders in the course of their duties.
Subclause (2)(a) amends section 201(2) of the Disability
Act 2006 to provide that the power to apprehend a person applies
if they are absent from the accommodation at which the person is
required to reside. Presently, section 201(2) only refers to
residential services or SDA enrolled dwellings.
Subclause (2)(b) inserts reference to the primary service provider
in section 201(2)(c) of the Disability Act 2006 to specify that it
is the Authorised Program Officer for a primary service provider
who must have been required to give the prior approval for an
absence where approval is required.
Clause 67 amends the heading to Division 6 of Part 8 of the Disability
Act 2006 to remove reference to disability service providers and
instead provide that the Division relates to the general use of
restrictive practices in implementing treatment plans.
Clause 68 amends section 201A of the Disability Act 2006.
Subclause (1) substitutes section 201A(1) of the Disability
Act 2006 to provide that Division 6 of Part 8 applies in respect of
persons for whom a disability service provider, or the Authorised
Program Officer for a disability service provider or a registered
NDIS provider has prepared or is required to prepare a treatment
plan.
Subclause (2) provides for a grammatical change in section
201A(2) of the Disability Act 2006, substituting "to whom" with
the words "in respect of whom".
Subclause (3) substitutes the note at the foot of section 201A(2)
of the Disability Act 2006 to reflect that corresponding
protective provisions in relation to other persons with a disability
and other NDIS participants are contained in Part 7.
Subclause (4) substitutes section 201A(3) of the Disability
Act 2006 and inserts new section 201A(3A) and (3B). New
subsection (3) provides that each disability service provider and
registered NDIS provider using restrictive practices on a person
in respect of whom this Part applies must comply with Division 6
of Part 8. However, new subsection (3A) provides that a
37
registered NDIS provider is authorised to use regulated restrictive
practices on, and is not required to comply with Division 6 of
Part 8 in relation to, an NDIS participant who is subject to a
treatment plan that is prepared by or on behalf of the Authorised
Program Officer for a disability service provider that is not in
accordance with the requirements of the NDIS
(Restrictive Practices and Behaviour Support) Rules if one of the
requirements in subsection (3B) is met. New subsection (3B)
provides the requirements--if the use of the regulated restrictive
practice is in accordance with section 135 and is authorised under
section 136, or if the use is authorised under section 145.
Subclause (5) substitutes section 201A(4) of the Disability
Act 2006 and inserts new section 201A(5).
New section 201A(4) provides that if a provider is both a
disability service provider or a registered NDIS provider for a
person, the provider is required to comply with Division 6 of
Part 8 in relation to a person either in their capacity as a disability
service provider or a registered NDIS provider, but not both, or if
the provider uses restrictive practices when providing NDIS
services to the person, then the provider acts in their capacity as a
registered NDIS provider.
New section 201A(5) provides that a disability service provider is
not required to comply with sections 201B to 201E of the
Disability Act 2006 in applying a security condition if the
Secretary has approved the security condition under
section 159A.
Clause 69 amends section 201B of the Disability Act 2006, which relates to
the use of restrictive practices. Subclause (1) substitutes section
201B(1) to provide that a disability service provider or a
registered NDIS provider must not use a restrictive practice on a
person in respect of whom Division 6 of Part 8 of the Disability
Act 2006 applies unless--
• there is a treatment plan in force for that person; and
• the treatment plan includes the restrictive practice; and
• if the restrictive practice is a regulated restrictive
practice, sections 201D and 201E are complied with.
38
The change from current section 201B(1) is that the substituted
section 201B(1) includes a reference to registered NDIS
providers to reflect that Division 6 of Part 8 now applies to them
in addition to disability service providers. There is also a new
section 201B(1)(c) which provides that providers must not use a
regulated restrictive practice unless new sections 201D and 201E
of the Disability Act 2006 are complied with.
Subclause (2) repeals section 201B(2), (3) and (4) of the
Disability Act 2006, relating to use of restrictive practices on
NDIS participants by disability service providers.
Clause 70 substitutes section 201C of the Disability Act 2006.
New subsection (1) provides that an Authorised Program Officer
for a disability service provider must ensure that any restrictive
practice used on a person in respect of whom this Division
applies by the disability service provider that appointed the
officer are administered in accordance with Division 6 of Part 8
and a person's treatment plan. Presently, section 201C only
requires administration in accordance with the Division.
New subsection (2) requires an Authorised Program Officer for a
registered NDIS provider to ensure that any restrictive practice
used on an NDIS participant is used in accordance with
Division 6 of Part 8, the NDIS Act, any regulations, instruments
or rules made under the NDIS Act, and the NDIS participant's
treatment plan.
New section 201C no longer provides that a disability service
provider must advise the Senior Practitioner of the name and
qualifications of any person appointed as an Authorised Program
Officer, and that the Senior Practitioner must keep a register of
the same for each Authorised Program Officer; these are now
addressed by section 132ZJ.
Clause 71 amends section 201D of the Disability Act 2006 to provide for
the use of regulated restrictive practices.
Subclause (1)(a) inserts reference to registered NDIS providers
so that the requirements for use of regulated restrictive practices
now also apply to registered NDIS providers to reflect that
Division 6 of Part 8 now also applies to them in addition to
disability service providers.
39
Subclause (1)(b) repeals section 201D(a)(ii) of the Disability
Act 2006, so that regulated restrictive practices can no longer be
used to prevent the person from destroying property where to do
so could involve the risk of harm to themselves or any other
person.
Subclause (1)(c) substitutes section 201D(c)(iii) of the Disability
Act 2006 to ensure the regulated restrictive practice is not
applied longer than necessary under section 201D(a).
Subclause (1)(d) inserts a new section 201D(ca) into the Act to
ensure the treatment plan is prepared in accordance with
section 201E and, if the person is an NDIS participant and the
treatment plan is also to be used as the person's NDIS behaviour
support plan, the requirements of the NDIS (Restrictive Practices
and Behaviour Support) Rules.
Subsection (2) substitutes the note at the foot of section 201D of
the Disability Act 2006 to refer to section 135 rather than 140 as
the corresponding provision in relation to other persons with a
disability and other NDIS participants. This is to reflect the
amendments made by this Bill.
Clause 72 amends section 201F of the Disability Act 2006.
Subclause (1) amends section 201F(1) of the Disability Act 2006
to provide that the Senior Practitioner must monitor the use of
regulated restrictive practices by disability service providers, and
advise Authorised Program Officers for a disability service
provider as to the intervals the Authorised Program Officer must
provide the report under this section.
Subclause (2) repeals section 201F(3) of the Disability Act 2006,
which relates to the making and issuing of guidelines, because
this is now addressed by section 201H. Consequently, the
changes in subclause (1) also remove reference to
section 201F(3).
Clause 73 repeals section 201FA of the Disability Act 2006, as this relates
to the Senior Practitioner's power to issue guidelines and
directions, which is now addressed by section 201H.
Clause 74 substitutes section 201G of the Disability Act 2006 to make it an
offence for a disability service provider or a registered NDIS
provider to use a regulated restrictive practice on a person in
respect of whom Division 6 of Part 8 applies, except in
40
accordance with sections 201A(3A), (4) or (5) or 201B of the
Disability Act 2006. Failure to comply is punishable by a
maximum penalty of 240 penalty units.
Clause 75 substitutes section 201H of the Disability Act 2006. Presently,
section 201H addresses the use of restrictive practices that are not
regulated restrictive practices, including the provision of reports
to the Senior Practitioner, the development of guidelines, and
giving written directions prohibiting or regulating their use. This
section is no longer required, as these provisions are addressed
elsewhere throughout the Act.
The new section 201H provides a list of the matters in relation to
which the Senior Practitioner may issue guidelines and standards
and give written directions to disability service providers and
registered NDIS providers specified in subsection (3). This
includes making guidelines and standards, or issuing directions
about, the use of restrictive practices, the development of
treatment plans, reporting requirements on the implementation of
plans and use of restrictive practices, and any prescribed matter.
Clause 76 substitutes section 201I of the Disability Act 2006. Currently,
section 201I provides the ability for the Senior Practitioner to
issue directions, which is now addressed by section 201H. The
new section 201I provides that the Senior Practitioner may lodge
evidence with the NDIS Commissioner or the registered NDIS
provider that the use of regulated restrictive practices is
authorised under Division 6 of Part 8.
Clause 77 repeals Division 7 of Part 8 of the Disability Act 2006. This is
because Division 7 relates to the use of restrictive practices by
registered NDIS providers on NDIS participants, which is now
addressed in Division 6 of Part 8 alongside disability service
providers.
Clause 78 amends section 204(2) of the Disability Act 2006 so that the
Secretary may also delegate powers, duties or functions that
relate to or affect DSOA clients, in addition to NDIS participants
and persons with a disability.
Clause 79 inserts reference to a contracted service provider and a funded
service provider in section 205(1) of the Disability Act 2006, to
ensure that the Secretary's powers regarding the provision of staff
extend only to disability services which are provided, contracted
or funded by the Secretary.
41
Clause 80 amends section 209 of the Disability Act 2006 to adopt gender
inclusive language.
Clause 81 amends section 213 of the Disability Act 2006 to adopt gender
inclusive language.
Clause 82 amends section 217(3)(a) and (b) of the Disability Act 2006 to
adopt gender inclusive language.
Clause 83 inserts a new section 218(3) into the Disability Act 2006 to
provide that the Senior Practitioner may also bring proceedings
for an offence under Part 6A, 7 or 8.
Clause 84 inserts a new Division 6 into Part 10 of the Disability Act 2006,
to provide for transitional provisions following commencement
of the Disability and Social Services Regulation Amendment
Act 2023.
New section 246 defines commencement day in this Division as
meaning the day on which Division 1 of Part 2 of the Disability
and Social Services Regulation Amendment Act 2023 comes
into operation.
New section 247 provides that if an Authorised Officer's
appointment is approved by the Secretary before Division 1 of
Part 2 comes into operation, on and from that day the Senior
Practitioner is taken to have approved the appointment under
section 132ZJ.
New section 248 provides that if immediately before the
commencement day, a decision under section 50 as to whether a
person has a disability is in effect, on and from the
commencement day that decision is taken to have been made in
accordance with section 50 as substituted by the Disability and
Social Services Regulation Amendment Act 2023.
New section 249 provides that the Senior Practitioner may
approve accommodation under section 187 as substituted by the
Disability and Social Services Regulation Amendment
Act 2023 for a person in respect of whom a supervised treatment
order, or an application for a supervised treatment order, was
made before the commencement day.
New section 250 provides for matters with respect to applications
before VCAT immediately before the commencement day.
Subsection (1) provides that on and from the commencement
42
day, an application for a supervised treatment order is taken to be
made in accordance with section 191 as substituted. Except as
provided for in subsections (3) and (5), the Disability Act 2006
as amended applies to the determination of an application under
sections 191, 194 and 196, and where the application is under
section 197 for a re-hearing of an application under section
191(1) or 196(1), The Disability Act 2006 as in force
immediately before amendment continues to apply in respect of
an application under the old section 196A, and a request for a
decision under section 50(1) or application for review under
section 50(7) which are not determined immediately before the
commencement day.
New section 251 provides for matters with respect to supervised
treatment orders and interim orders in force immediately before
the commencement day. For those orders, they will continue
until the order expires or is revoked, the Disability Act 2006 as
amended applies, and disability service provider or registered
NDIS provider that appointed the Authorised Program Officer
stated in the supervised treatment order is taken to be the primary
service provider.
New section 252 provides for matters with respect to treatment
plans, and treatment plans with an attached NDIS behaviour
support plan, in force immediately before the commencement day
for persons subject to a supervised treatment order or an
application for such an order. Those treatment plans, or
treatment plan and attached NDIS behaviour support plan, are
taken to be a treatment plan made under section 189 as
substituted.
New section 253 provides for the transition of guidelines,
directions and standards issued before the commencement day.
Any directions issued under section 135(6) or 186(6) are taken to
be directions issued under the amended section 132ZO. Any
guidelines or directions issued under section 132ZY, 147A
or 150 are taken to be issued under the substituted section 146.
Any guidelines, directions or standards issued under
section 201FA, 201H or 201I are taken to be issued under the
substituted section 201H.
New section 254 provides that if an offence against this Act is
alleged to have been committed between 2 dates, one before and
one after the commencement day, the offence is alleged to have
been committed before the commencement day.
43
New section 255 provides that an authorisation or approval for
the use of a regulated restrictive practice under sections
132ZR(1) or 145, 132ZV or 145A that are in force immediately
before the commencement day, they are taken to be approved or
authorised under substituted sections 136 or 143, as applicable.
Subsection (4) provides that a person who has a right to apply to
VCAT for a review of a decision under sections 132ZW or 146
immediately before the commencement day can apply for the
review under substituted section 144. Subsection (5) preserves
applications before VCAT immediately before the
commencement day.
New section 256 provides for the preservation of behaviour
support plans in place under section 141 immediately before the
commencement day. They will be taken to be a behaviour
support plan under section 138 as substituted.
New section 257 provides for the transition of reports made by
the independent person to the Public Advocate under current
section 132ZS(4) or 143(2). If a report is made more than
28 days before the commencement day, the Disability Act 2006
as in force immediately before the commencement day will
continue to apply in respect of the report (including current
section 132ZT and 144). Otherwise, if made within 28 days
before the commencement day, the Disability Act 2006 as
amended will apply in respect of the report (including new
section 141).
New section 258 provides that if a security condition that is a
restrictive practice was imposed on the residents of a residential
treatment facility under section 159 immediately before the
commencement day, despite section 159A, the Secretary's
approval of the security condition is not required until 30 days
after the commencement day.
New section 259 provides that for residential statements in effect
immediately before the commencement day, on and from the
commencement day, the Disability Act 2006 as in force
immediately before the commencement day will continue to
apply until the earlier of the end of the statement or 12 months
after the commencement day.
New section 260 provides that the Governor in Council may
make regulations containing provisions of a transitional nature,
including matters of an application or savings nature arising as a
44
result of the enactment of the Disability and Social Services
Regulation Amendment Act 2023. This section is repealed on
the second anniversary of the day on which it comes into
operation.
Division 2--Further amendment of the Disability Act 2006
Subdivision 1--Residential tenancies
Clause 85 amends section 3 of the Disability Act 2006.
Subclause (1)(a) inserts a new definition of SDA dwelling, which
has the same meaning as in section 498BA of the Residential
Tenancies Act 1997.
Subclause (1)(b) and (1)(d) substitute the definitions of SDA
provider and SDA resident to adopt the definitions of those terms
in the Residential Tenancies Act 1997.
Subclause (1)(c) amends the definition of SDA residency
agreement to refer to an SDA dwelling rather than an SDA
enrolled dwelling. This amendment is due to changes being
made in the Residential Tenancies Act 1997, to reflect the
intention that the protections for SDA enrolled dwellings are now
extended to similar accommodation and support arrangements.
Subclause (1)(e) amends short-term accommodation and
assistance dwelling to omit "and assistance" to reflect new
terminology used in the industry.
Subclause (2) repeals the definitions of group home, notice of
intention to vacate, notice of temporary relocation and notice to
vacate which relate to provisions in Division 2 of Part 5 which
are being repealed, and it also repeals the definitions of SDA
recipient, NDIS dwelling and Supported Independent Living
provider.
Clause 86 substitutes a reference to "NDIS dwelling" with "SDA dwelling,
or a short-term accommodation dwelling" in section 27(2)(ab) of
the Disability Act 2006, so that the Senior Practitioner's power to
visit and inspect any place where services are provided under the
NDIS excludes private residences that are not SDA dwellings or
short-term accommodation dwellings, rather than NDIS
dwellings as is currently the case.
45
Clause 87 amends section 30A of the Disability Act 2006 to change
terminology to "short-term accommodation and assistance
dwelling", and as a result of the new definition of SDA dwelling
which captures SDA enrolled dwellings and other dwellings to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Subclause (1) substitutes "NDIS dwellings" with the words
"SDA dwellings or short-term accommodation dwellings" in the
heading to section 30A of the Disability Act 2006.
Subclause (2) substitutes "SDA enrolled dwelling" with
"SDA dwelling" in section 30A(1) of the Disability Act 2006
and provides that in subsection 30A(1)(c), (d) and (g),
requirements to comply with the NDIS Act relate to NDIS
participants or DSOA clients.
Subclause (3) substitutes "short-term accommodation and
assistance dwelling" with "short-term accommodation dwelling"
in section 30A(2) of the Disability Act 2006.
Subclause (4) substitutes "SDA enrolled dwelling" with
"SDA dwelling" in section 30A(3) and (4) of the Disability
Act 2006.
Clause 88 amends section 34(1) of the Disability Act 2006 by substituting
the phrase "NDIS dwellings" with the words ", SDA dwellings or
short-term accommodation dwellings", to reflect the change
introduced in this Bill that community visitors visit SDA
dwellings or short-term accommodation dwellings, not NDIS
dwellings. The phrase "NDIS dwelling" will no longer be used
as not all SDA dwellings are provided under the NDIS.
Clause 89 amends section 56 of the Disability Act 2006 to refer to the new
defined term of "SDA dwelling", rather than "SDA enrolled
dwelling", to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 90 repeals Division 2 of Part 5 of the Disability Act 2006, which
relates to group homes. Group homes will transition from the
Disability Act 2006 to the Residential Tenancies Act 1997.
46
Clause 91 amends the heading to section 129 of the Disability Act 2006 by
substituting "NDIS dwelling" with "SDA dwelling and short-term
accommodation dwelling", to reflect the change introduced in
this Bill that the phrase "NDIS dwelling" will no longer be used
given that not all SDA dwellings are provided under the NDIS.
It also amends section 129 to use the new defined term of
"SDA dwelling", rather than "SDA enrolled dwelling", to reflect
the intention that the protections for SDA enrolled dwellings are
now extended to similar accommodation and support
arrangements, and "short-term accommodation dwelling" rather
than "short-term accommodation and assistance dwelling"
(to reflect industry terminology).
Clause 92 amends section 130(2)(a) of the Disability Act 2006 to use the
new defined term of "SDA dwelling", rather than "SDA enrolled
dwelling", as introduced by this Bill. It also substitutes the term
"short-term accommodation and assistance dwelling" in section
130(2)(b) of the Disability Act 2006 with "short-term
accommodation dwelling". It also substitutes "NDIS dwelling"
in section 130(3)(d) of the Disability Act 2006 with
"SDA dwelling or short-term accommodation dwelling" to reflect
that the phrase "NDIS dwelling" will no longer be used as not all
SDA dwellings are provided under the NDIS.
Clause 93 amends terminology in section 131A of the Disability Act 2006,
including its heading. Currently section 131A provides for
requests for a community visitor to see an NDIS resident.
"NDIS resident" is currently defined as an SDA resident living in
an SDA enrolled dwelling or a person living in a short-term
accommodation and assistance dwelling. The amendments
change section 131A to--
• reflect use of the new defined term "SDA dwelling"
instead of "SDA enrolled dwelling" to reflect the
intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation
and support arrangements; and
• reflect the use of "short-term accommodation dwelling"
instead of "short-term accommodation and assistance
dwelling"; and
47
• replace "NDIS resident" with "NDIS participant, DSOA
client or SDA resident" as applicable given that the term
"NDIS resident" will no longer be used as not all
residents in SDA dwellings are NDIS participants; and
• replace references to "Supported Independent Living
Provider" given that term is being repealed.
Clause 94 amends terminology in section 132(2) and (3) of the Disability
Act 2006. These currently relate to reporting requirements for
providers of SDA enrolled dwellings and short-term
accommodation and assistance dwellings for "NDIS residents".
"NDIS resident" is currently defined as an SDA resident living in
an SDA enrolled dwelling or a person living in a short-term
accommodation and assistance dwelling. The amendments
change terminology in section 132(2) and (3) to--
• reflect the new defined term "SDA dwelling" instead of
"SDA enrolled dwelling" to reflect the intention that the
protections for SDA enrolled dwellings are now
extended to similar accommodation and support
arrangements; and
• reflect the use of "short-term accommodation dwelling"
instead of "short-term accommodation and assistance
dwelling"; and
• replace "NDIS resident" with "NDIS participant, DSOA
client or SDA resident" given that that term will no
longer be used as not all residents in SDA dwellings are
NDIS participants; and
• replace references to "Supported Independent Living
provider" given that term is being repealed and replaced
with "the provider who provides daily independent
living supports at the SDA dwelling".
Clause 95 amends new section 191(1)(b)(ii) of the Disability Act 2006 as
substituted by clause 56 (regarding the accommodation in which
a person subject to a supervised treatment order application may
reside) to use the new defined term of "SDA dwelling", rather
than "SDA enrolled dwelling", to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
48
Clause 96 amends the regulation making power in section 221(1)(fc) of the
Disability Act 2006 to use the new defined term of
"SDA dwelling", rather than "SDA enrolled dwelling", to reflect
the intention that the protections for SDA enrolled dwellings are
now extended to similar accommodation and support
arrangements.
Clause 97 inserts a new Division 7 into Part 10 of the Disability Act 2006.
This provides for transitional provisions as a consequence of the
amendments made under Division 2 of Part 2 of this Bill.
New section 264 provides that in Division 7 of Part 10, the
commencement day means the day on which Division 2 of Part 2
of the Disability and Social Services Regulation Amendment
Act 2023 comes into operation.
New section 265 provides for matters relating to supervised
treatment orders and interim supervised treatment orders if
immediately before the commencement day, a person resides in a
residential service that is a group home or an SDA enrolled
dwelling and is subject to a supervised treatment order or an
interim supervised treatment order. On and from the
commencement day, such orders are taken to comply with
section 193(3)(b) and the disability service provider or registered
NDIS provider of the Authorised Program Officer that is
specified in the order, or for an interim order, who applied for the
order, is the primary service provider. It is intended that the
person still be required to reside at the same accommodation.
New section 266 provides for matters relating to applications for
a supervised treatment order or an interim treatment order before
VCAT, where the person in respect of whom the application is
made resides in a residential service that is a group home or an
SDA enrolled dwelling. New section 266(2) provides that on and
from the commencement day the application will be taken to be
made in accordance with section 191, and a certificate given by
the Senior Practitioner under section 191(3) as in force
immediately before the day on which Division 1 of Part 2 of the
Disability and Social Services Regulation Amendment
Act 2023 comes into operation is taken to be a certificate under
section 191A(1), and to relate to accommodation of a type
specified in section 191(1)(b). Further, the disability service
provider or registered NDIS provider that appointed the
49
Authorised Program Officer that applied for the order is the
primary service provider.
New section 267 provides for matters relating to assessment
orders in force immediately before the commencement day in
respect of a person who resides in a residential service that is a
group home or an SDA enrolled dwelling. On and from the
commencement day, the assessment order is taken to enable the
person in respect of whom the order is made to be detained in an
SDA dwelling to enable a treatment plan to be prepared for that
person. It also provides that any assessment orders made before
the commencement day remain in force until the order expires or
is revoked and the disability service provider or registered NDIS
provider that appointed the Authorised Program Officer that
applied for the order is the primary service provider.
New section 268 provides that despite the repeal of Division 2 of
Part 5 by the Disability and Social Services Regulation
Amendment Act 2023, that Division as in force immediately
before that repeal continues to apply in relation to a notice of
increase, notice of temporary relocation, notice to vacate, notice
of intention to vacate, notice of withdrawal, possession order or
warrant of possession if the specified notice, order or warrant was
given or obtained before the commencement day.
Subdivision 2--Secretary's powers and functions
Clause 98 amends section 8(2) of the Disability Act 2006 to provide that
the specified functions of the Secretary regarding setting policies
for, access to, and quality, monitoring, evaluation or review of,
disability services relate specifically to services provided,
contracted or funded by the Secretary. This amendment is
intended to reduce duplication of responsibilities and streamline
provisions by ensuring that the Secretary is only responsible for
services that they fund or contract under sections 9 and 10 of the
Disability Act 2006.
Clause 99 amends section 99(1) of the Disability Act 2006 so that the
power of the Secretary to issue directions applies only to those
disability service providers that are contracted service providers
or funded service providers, rather than to all disability service
providers. This amendment is to clarify that the Secretary is only
responsible for disability services that the Secretary funds or
contracts under sections 9 and 10 of the Disability Act 2006.
50
Clause 100 amends section 100(1) of the Disability Act 2006 so that the
Secretary may only exercise the powers under section 100(2) for
those disability service providers that are contracted service
providers or funded service providers. rather than to all disability
service providers. This amendment is intended to clarify that the
Secretary is only responsible for disability services that the
Secretary funds or contracts under sections 9 and 10 of the
Disability Act 2006.
Clause 101 amends section 206 of the Disability Act 2006 so that the
Secretary may only exercise the powers under section 206 for
those disability service providers that are contracted service
providers or funded service providers rather than to all disability
service providers. This amendment is intended to clarify that the
Secretary is only responsible for disability services that the
Secretary funds or contracts under sections 9 and 10 of the
Disability Act 2006.
Clause 102 amends section 210 of the Disability Act 2006 to limit
authorised officers powers to those disability service providers
that are contracted service providers and funded service providers
as the Secretary's functions are amended to apply only to those
disability services which are provided, contracted or funded by
the Secretary. Section 210 is also amended to adopt gender
inclusive language.
Subdivision 3--Information sharing
Clause 103 amends section 39 of the Disability Act 2006 to repeal
subsections (2), (3), (3A), (4), (5), (6), (7), (8) and (9) relating to
information sharing. This is because the information sharing
provisions are being re-enacted with amendments under
clause 105 of the Bill to become the new Part 8A of the
Disability Act 2006. Subsection (1) is retained as it relates to the
Secretary's obligation to ensure the Department maintain
information systems.
Clause 104 repeals section 39A of the Disability Act 2006. This provision is
re-enacted under clause 105 of the Bill as new section 202AD in
the Disability Act 2006 with minor amendments.
Clause 105 inserts a new Part 8A after Part 8 of the Disability Act 2006
relating to the use and disclosure of information. These
provisions largely re-enact the current sections 39(2), (3), (3A),
51
(4), (5), (6), (7), (8) and (9) and 39A of that Act, as repealed by
clauses 103 and 104 of the Bill, with some amendments.
New section 202AA provides the definitions of protected
information and relevant person for the purposes of new
Part 8A. Protected information is defined as information that is
gained by or given to a relevant person in their official capacity,
is either obtained during the course of providing disability
services to the person or obtained by a relevant person using
restrictive practices or implementing supervised treatment on a
person, and identifies (or is likely to lead to the identification of)
the person to whom the information relates. The definition for
relevant person provides for a list of people, and includes a
current or former disability service provider, registered NDIS
provider in certain circumstances, persons appointed, employed
or engaged by those providers, persons appointed to any office
under the Disability Act 2006 or employed or engaged under that
Act, persons who are public servants for the purposes of that Act,
and the Senior Practitioner.
New section 202AB(1) provides that a relevant person must not
disclose, use or transfer protected information unless the
disclosure, use or transfer is in the performance of a function or
exercise of a power under the Disability Act 2006 or any other
Act (including Commonwealth Acts), or unless required or
permitted by the Disability Act 2006 or any other Act
(including Commonwealth Acts). Failure to comply with new
section 202AB(1) is an offence punishable by a maximum
penalty of 20 penalty units. Subsections (2), (3) and (4) of new
section 202AB provide a list of people and bodies to whom, and
the circumstances in which, a relevant person may disclose
protected information.
Despite anything to the contrary in section 202AB(1), new
section 202AC authorises any person or body to use, transfer or
disclose the specified information to the NDIA, the NDIS Quality
and Safeguards Commission, an NDIS provider or any prescribed
person or body or prescribed class of person or body. The
disclosure, use or transfer of the specified information must be
for any purpose for or with respect to the NDIS or its
implementation.
Subsection (2) of new section 202AC provides that a person or
body to whom information is disclosed under subsection (1) is
authorised to use or transfer that information for any purpose for
52
or with respect to the NDIS or the implementation of the NDIS.
Under new section 202AC(3), it is an offence for a person or
body to whom information is disclosed under subsection (1) to
use, disclose or transfer that information unless the person or
body does so for the purpose for which the information has been
disclosed to the person or body; or the person or body is
authorised by or under an Act or other law to do so. Failure to
comply with new section 202AC(3) is an offence punishable by a
maximum penalty of 20 penalty units.
New section 202AD authorises the Secretary to transfer
information about worker screening, as defined in new section
202AD(3), to the specified entities including the NDIS Quality
and Safeguards Commission, Disability Worker Registration
Board, the Victorian Disability Worker Commission and its
Commissioner, the Secretary within the meaning of the Worker
Screening Act 2020, an NDIS worker screening unit within the
meaning of the Worker Screening Act 2020, and the relevant
provider. The Secretary may transfer or disclose information
about worker screening at their own initiative or on request of the
entity. Section 202AD re-enacts the current section 39A, with
one amendment to reflect that information about worker
screening may also relate to the provision of disability services
to DSOA clients, as well as NDIS participants.
New section 202AE provides that sections 202AB, 202AC
and 202AD have effect despite any other Act or law other than
the Charter of Human Rights and Responsibilities Act 2006
and that new Part 8A is not intended to affect a relevant person's
obligations in relation to the disclosure, use and transfer of
information under the NDIS Act.
Clause 106 inserts a new paragraph (fd) in the regulation making power in
section 221(1) of the Disability Act 2006 to provide that the
Governor in Council has the power to prescribe persons and
bodies to which protected information may be disclosed under
new section 202AB(4) or 202AC(1), including persons or bodies
established, or performing functions or exercising powers under
the law of another State, a Territory or the Commonwealth.
Clause 107 inserts a new section 261 of the Disability Act 2006, which is a
transitional provision in relation to the use and disclosure of
information. It provides that on and from the day Subdivision 3
of Division 2 of Part 2 of the Disability and Social Services
53
Regulation Amendment Act 2023 comes into operation,
Part 8A applies to any protected information collected before that
day that is disclosed, used or transferred after that day.
Part 3--Further amendment of Disability Act 2006
Clause 108 inserts a new definition for forensic disability service provider
into section 3(1) of the Disability Act 2006, being a disability
service provider that is prescribed to operate a residential
treatment facility.
Clause 109 amends section 89 of the Disability Act 2006 by substituting a
new subsection (3). Section 89 of the Disability Act 2006
requires a disability service provider to provide relevant written
information to a person who commences using disability
services. Current section 89(3) provides that this requirement
does not apply if the person is a resident in a residential service
and the relevant information has been included in the residential
statement provided under section 57 of the Disability Act 2006.
New section 89(3) replicates current section 89(3) but adds an
additional situation where the information does not have to be
provided under section 89, being a situation where the
information has been provided to a person admitted to a
residential treatment facility in accordance with new
section 152A (inserted by clause 112 of the Bill).
Clause 110 amends section 151 of the Disability Act 2006, which provides
for the proclamation of residential treatment facilities.
Subclause (1) amends section 151(1) to enable premises, or
programs provided on premises, used by a forensic disability
service provider to provide residential services to be proclaimed
by the Governor in Council to be a residential treatment facility.
Currently, only premises, or programs provided on premises,
used by the Secretary can be proclaimed to be residential
treatment facilities. Subclause (2) inserts a note at the foot of
section 151(1) of the Disability Act 2006. The note states that
residential treatment facilities are no longer classified as
short-term or long-term residential treatment facilities, referring
to new section 262 (a transitional provision inserted by
clause 131 of the Bill). This reflects the repeal of current
section 151(2) by subclause (3).
54
Subclause (3) repeals section 151(2) of the Disability Act 2006.
Section 151(2) allows proclamations under section 151 to
classify residential treatment facilities as being short-term or
long-term. The repeal of section 151(2) of the Disability
Act 2006 will ensure a proclamation made under section 151(1)
of that Act no longer classifies a residential treatment facility as
short-term or long-term.
Subclause (4) amends section 151(4). Current section 151(4)
provides that subject to section 151(5), for the purposes of
Division 1 of Part 8 of the Disability Act 2006, a person with an
intellectual disability can only be admitted to a short-term
residential treatment facility for a period not exceeding 5 years.
The amendments to section 151(4) of the Disability Act 2006
made by subclause (4) make section 151(4) subject to new
section 152B (inserted by clause 113 of the Bill) in addition to
section 151(5), and also updates the terminology to reflect the
removal of the short-term and long-term classifications of
residential treatment facilities.
Subclause (5) omits the phrase "short-term" from section 151(5)
to reflect the removal of the short-term and long-term
classifications of residential treatment facilities.
Subclause (6) repeals section 151(6) of the Disability Act 2006.
Current section 151(6) relates to the classification of a particular
facility as a short-term residential treatment facility. Such
classifications are being removed by the Bill and thus
section 151(6) is no longer relevant.
Subclause (7) amends section 151(7) of the Disability Act 2006
to provide that a residential treatment facility can be operated by
either the Secretary through the Department or a forensic
disability service provider. Currently, only the Secretary through
the Department can operate a residential treatment facility.
Subclause (8) amends section 151(8) of the Disability Act 2006
to provide that the Secretary is required to appoint an Authorised
Program Officer only in respect of a residential treatment facility
that they operate. This is to account for the amendments to the
Disability Act 2006 made by the Bill which enable a forensic
disability service provider to operate a residential treatment
facility, as it is not intended that the Secretary be required to
appoint an Authorised Program Officer in respect of residential
treatment facilities not operated by the Secretary.
55
Subclause (9) inserts a new subsection (9) to section 151 of the
Disability Act 2006, which provides that a forensic disability
service provider must appoint an Authorised Program Officer in
respect of each residential treatment facility it operates. This is
to ensure that each residential treatment facility has an
Authorised Program Officer with appropriate oversight.
Clause 111 amends section 152 of the Disability Act 2006, which sets out
the circumstances in which a person can be admitted to a
residential treatment facility.
Subclause (1) amends the matters that the Secretary must be
satisfied of under section 152(1) before admitting a person to a
residential treatment facility. These matters currently include,
among other things, that the person has an intellectual disability
and that the person presents a serious risk of violence to another
person.
New matters that the Secretary must further be satisfied of are
that treatment is suitable for the person having regard to their
willingness to engage in and benefit from the treatment, that the
person is able to engage in the therapeutic environment at the
residential treatment facility, and that admission is appropriate
having regard to the person's vulnerability, any risks the person
may present to other residents, and the compatibility of the
person with other residents at the residential treatment facility.
The requirement in current section 152(1)(e) of the Disability
Act 2006 that the Secretary be satisfied that the Senior
Practitioner has been notified of the proposed admission is
removed. New requirements relating to the role of the Senior
Practitioner are provided for in new section 152(1B)(a) and (b)
inserted by subclause (2).
The requirement in current section 152(1)(f) of the Disability
Act 2006 that the Secretary be satisfied that an order specified
under section 152(2) of that Act applies to the person is also
removed from section 152(1), though a similar provision is
inserted in new section 152B(1B)(b) by subclause (2).
Subclause (2) inserts new section 152(1A) and (1B).
New section 152(1A) requires the Secretary to arrange for the
person to undergo an assessment prior to the person being
admitted to a residential treatment facility.
56
New section 152(1B) prohibits a person from being admitted to a
residential treatment facility unless the Secretary has consulted
and considered any advice of the Senior Practitioner about the
suitability of the treatment to be provided to the person, and
unless a specified order applies enabling compulsory treatment to
be provided to the person. New section 152(1B)(a) effectively
strengthens the role of the Senior Practitioner when compared to
current section 152(1)(e), which it replaces. New section
152(1B)(b) recasts current section 152(1)(f) by providing that a
person must not be admitted to a residential treatment facility
unless an order specified in section 152(2) applies to the person
enabling compulsory treatment to be provided. Current section
152(1)(f) provides that a person may be admitted if the Secretary
is satisfied that an order specified in section 152(2) applies to the
person enabling compulsory treatment to be provided.
Subclause (3) amends section 152(2) of the Disability Act 2006,
which specifies a list of orders.
Paragraph (a) substitutes "(1)(f)" with "(1B)(b)" in section
152(2), as a consequence of the amendments made to
section 152.
Paragraph (b) repeals section 152(2)(e) of the Disability
Act 2006 so that an extended supervision order made under the
Serious Sex Offenders Monitoring Act 2005 is no longer a
specified order for the purposes of new section 152(1B)(b).
Section 152(2)(e) is no longer required because the Serious Sex
Offenders Monitoring Act 2005 has been repealed and the
supervision orders under that Act have now expired.
Subclause (4) amends section 152(3) of the Disability Act 2006,
which requires the Secretary to provide a statement to a relevant
person or body in relation to certain orders specified in section
152(2) before a person can be admitted to a residential treatment
facility as a result of those orders. Paragraphs (a) to (c) make
various amendments to update section references and punctuation
in section 152(3) to reflect the amendments made to section 152
by the Bill. Paragraph (d) inserts a new section 152(3)(d), to add
a requirement for the Secretary's statement under this subsection
to specify that the Senior Practitioner has been consulted in
relation to the proposed admission.
57
Subclause (5) repeals section 152(4)(ab) of the Disability
Act 2006 to remove the Post Sentence Authority as a relevant
person or body for an order specified in section 152(2)(e), for the
purposes of section 152(3). This is because section 152(4)(ab) is
no longer required as current section 152(2)(e) is repealed by
subclause (3)(b).
Subclause (6) inserts new subsections (5), (6), (7), (8) and (9)
into section 152 of the Disability Act 2006.
New section 152(5) provides that, subject to subsections (6)
and (7) if the Secretary becomes aware that the matters in
subsection (1) or an order in subsection (2) may no longer apply
to the person residing at a residential treatment facility, the
Secretary must not allow the person to continue to reside at a
residential treatment facility unless they are satisfied of the
matters in subsection (1) or an order under subsection (2)
continues to apply.
New section 152(6) provides that the Secretary may allow a
person who is subject to an order specified in subsection (2) to
continue to reside at a residential treatment facility for up to
3 months after ceasing to be satisfied of a matter in
subsection (1).
New section 152(7) provides that the Secretary, after consulting
and considering any advice of the Senior Practitioner, may allow
a person who is subject to an order specified in subsection (2)(c)
requiring the person to be detained at a residential treatment
facility to reside at that facility until the order is varied or
revoked.
New section 152(8) requires that the Secretary notify the person,
body or court that made the order specified in subsection (2) if
the Secretary allows a person to continue to reside at a residential
treatment facility under new section 152(6).
New section 152(9) defines admission as including readmission
of a person to a residential treatment facility, and any period of
extension by the Secretary under section 152B, but does not
include a period during which the Secretary allows the person to
continue to reside in the residential treatment facility under
subsection (6) or (7).
58
Clause 112 inserts new section 152A into the Disability Act 2006, which
requires that the Secretary or a forensic disability service
provider (as applicable) provides a person being admitted to a
residential treatment facility with relevant written information
about the services to be provided to them. This includes any
conditions impacting them; their rights, entitlements and
obligations; their treatment plan; and information that they may
be apprehended under section 160 of the Act if absent from the
facility without leave of absence or special leave of absence.
The Secretary or forensic disability service provider is also
required to provide the person with details of any material update
to relevant information about security conditions to which the
person is subject and about the person's treatment plan. Any
information or details provided to the person must also be
explained to them in accordance with section 7 of the Disability
Act 2006 which sets out how information is to be given to a
person with a disability.
Clause 113 inserts new section 152B into the Disability Act 2006, which
relates to the Secretary's ability to extend the admission of person
to a residential treatment facility for up to 12 months at a time.
The Secretary must be satisfied that the person continues to meet
admission criteria, would benefit from further treatment, the
treatment continues to be appropriate, and that further treatment
is likely to result in a reduction to any risk of violence the person
presents to another person. The Secretary must arrange for the
person to undergo an assessment for the purpose of making a
decision to extend their admission, and must consult with the
Senior Practitioner and consider their advice. The Secretary may
have regard to operational demands in considering whether an
extension should be made. An extension cannot exceed the
period of the order specified in section 152(2) of the Disability
Act 2006 or any period specified in a direction given under that
order.
Clause 114 amends section 153 of the Disability Act 2006 which sets out
requirements for treatment plans made by an Authorised Program
Officer.
Subclause (1) omits ", 152(2)(d), 152(2)(e)" from section 153(1)
so that an Authorised Program Officer is only required to prepare
a treatment plan for persons admitted to a residential treatment
facility under an order specified in section 152(2)(a), 152(2)(b) or
152(2)(f). The reference to section 152(2)(d) is not required as
59
section 167 of the Disability Act 2006 provides that the
Secretary is responsible for preparing treatment plans in relation
to such persons. The reference to section 152(2)(e) is no longer
necessary as that section is repealed by clause 111(3) of the Bill.
Subclause (2) inserts new section 153(3)(aab), which requires the
Authorised Program Officer to explain the treatment plan to the
person with a disability in accordance with section 7 of the
Disability Act 2006 which sets out how information is to be
given to a person with a disability.
Clause 115 removes references to section 152(2)(e) in section 154(1) and (5)
of the Disability Act 2006 to reflect the repeal of section
152(2)(e) by clause 111(3). Section 154 provides for the annual
review of treatment plans.
Clause 116 removes the reference to section 152(2)(e) in section 155(5) of
the Disability Act 2006 to reflect the repeal of section 152(2)(e)
by clause 111(3). Section 155 provides for applications for
reviews of treatment plans.
Clause 117 amends section 156 of the Disability Act 2006, which provides
for a person's leave of absence from a residential treatment
facility.
Subclause (1) removes the reference to section 152(2)(e) in
section 156(1) to reflect the repeal of section 152(2)(e) by clause
111(3), and subclause (2) inserts new subsections (4A) and (4B)
into section 156 of the Disability Act 2006. New section
156(4A) and (4B) provide new functions for the Secretary in
relation to a leave of absence.
New section 156(4A) requires an Authorised Program Officer of
a residential treatment facility operated by a forensic disability
service provider to obtain the approval of the Secretary before
allowing, extending or revoking a leave of absence.
New section 156(4B) provides the Secretary with the ability to
review a decision of the Authorised Program Officer to refuse to
grant or extend a leave of absence, or to revoke a leave of
absence.
Clause 118 amends section 157 of the Disability Act 2006 which sets out
special leave requirements for residents detained in a residential
treatment facility under a specified order.
60
Subclause (1) omits the reference to section 152(2)(e) in section
157(1) to reflect the repeal of section 152(2)(e) by clause 111(3).
Subclause (2) amends section 157(2) so that the Authorised
Program Officer's ability to grant an application for special leave
of absence is subject to new section 157(2A), inserted by
subclause (3).
Subclause (3) inserts new section 157(2A), which provides that if
the residential treatment facility is operated by a forensic
disability service provider, the Authorised Program Officer must
obtain the approval of the Secretary before granting an
application for special leave of absence.
Subclause (4) inserts new section 157(3A) and (3B).
New section 157(3A) provides that the Secretary may, on the
application of the resident, review a decision of the Authorised
Program Officer to refuse to grant an application for special leave
of absence. This is a new function for the Secretary as current
section 157(3) and (4) provide for the review of such decisions
by VCAT only.
New section 157(3B) provides that the resident may apply to
VCAT for review of the Secretary's decision to refuse to approve
a decision to grant an application for special leave, or a decision
to affirm a decision to refuse to grant an application for special
leave. This ensures that the exercise of the Secretary's new
decision-making powers under new section 157(2A) and (3A) are
reviewable by VCAT.
Subclause (5) inserts a reference to new section 157(3B) into
section 157(4), so that VCAT can make orders in relation to
applications for review under new section 157(3B).
Clause 119 amends section 158 of the Disability Act 2006, which provides
for the suspension of a leave of absence or a special leave of
absence.
Subclauses (1) and (2) amend section 158(1), which provides that
a suspension can only be granted if the Secretary or Authorised
Program Officer is satisfied that the safety of the person or public
will be seriously endangered without the suspension, and section
158(3), which provides that if the Secretary or Authorised
Program Officer is satisfied that the reason for the suspension no
longer exists they must lift the suspension immediately, so that
they are subject to new section 158(3A).
61
Subclause (3) inserts new section 158(3A), which provides that
the Authorised Program Officer of a residential treatment facility
operated by a forensic disability service provider must obtain the
approval of the Secretary before suspending, or lifting the
suspension of, leave of absence or special leave of absence. This
change accounts for amendments in the Bill enabling forensic
disability service providers (rather than just the Secretary) to
operate residential treatment facilities.
Clause 120 substitutes section 159(3) of the Disability Act 2006 so that the
resident detained in a residential treatment facility is regarded as
in the custody of the Secretary, rather than in the custody of the
person in charge of the residential treatment facility, as is the
current case. This change accounts for amendments in this Bill
enabling forensic disability service providers to operate
residential treatment facilities.
Clause 121 amends section 160 of the Disability Act 2006, which sets out
who can apprehend a resident detained in a residential treatment
facility absent from the residential treatment facility without
leave of absence or special leave of absence. Clause 121
substitutes section 160(b) and inserts new section 160(c) and (d).
New section 160(b) and (c) effectively replace current section
160(b). Current section 160(b) refers to the person in charge of
the residential treatment facility or any person employed under
the Public Administration Act 2004 and authorised by the
person in charge of the residential treatment facility. New
section 160(b) retains the reference to the person in charge of the
residential treatment facility. New section 160(c) replaces the
reference to any person employed under the Public
Administration Act 2004 and authorised by the person in charge
of the residential treatment facility, with a reference to a person
employed under the Public Administration Act 2004 and
authorised by the Secretary. This change accounts for
amendments in the Bill enabling forensic disability service
providers (rather than just the Secretary) to operate residential
treatment facilities.
New section 160(d) provides for an additional class of persons
who can apprehend residents under this section, being persons of
a prescribed class authorised by the Secretary.
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Clause 122 amends section 162 of the Disability Act 2006, which provides
for the extended leave of a RTO resident from a residential
treatment facility. The amendments shift responsibilities under
this section from the Secretary to the Authorised Program
Officer.
Subclause (1) substitutes section 162(3)(b) to allow the
Authorised Program Officer, with the approval of the Secretary,
to make an application for extended leave for a RTO resident.
Under current section 162(3)(b), it is the Secretary who can make
the application.
Subclause (2) substitutes section 162(4) with a requirement that
the application include a leave plan prepared by the Authorised
Program Officer. Under current section 162(4) of the Disability
Act 2006, it is the Secretary who must prepare the plan.
Clause 123 amends section 163(2) of the Disability Act 2006, which
provides for appeals against grants of extended leave.
"The Secretary" is substituted with the words "The Authorised
Program Officer, with the approval of the Secretary" to provide
that the Authorised Program Officer (rather than the Secretary) is
responsible for appealing to the Court of Appeal against a grant
of extended leave and to reflect the change in the Secretary's
responsibility. It also amends the section to adopt gender
inclusive language.
Clause 124 amends section 164 of the Disability Act 2006, which provides
for the suspension and revocation of extended leave.
This clause replaces references to the Secretary with references to
the Authorised Program Officer, with the approval of the
Secretary. These amendments shift the responsibility for
determining whether extended leave should be suspended or
revoked, and the obligation to lift a suspension where the
underlying reason for it no longer exists, from the Secretary to
the Authorised Program Officer, and also reflects the change in
the Secretary's responsibility.
Clause 125 amends section 165(2) of the Disability Act 2006, which
concerns appeals regarding revocation of extended leave. It
replaces references to the Secretary with references to the
Authorised Program Officer to shift the responsibility for appeals
under this provision from the Secretary to the Authorised
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Program Officer, though the Secretary's approval is required to
appeal.
Clause 126 amends section 167 of the Disability Act 2006, which provides
for the preparation of treatment plans for persons who have an
intellectual disability for the purposes of section 166 of the
Disability Act 2006. Section 166 provides for the transfer of a
person with an intellectual disability from a prison to a residential
treatment facility as a security resident.
Subclause (1)(a) amends section 167(2) so that the Secretary,
rather than the Authorised Program Officer, is required to give a
copy of the treatment plan to the person with an intellectual
disability within 2 days of the treatment plan being prepared.
Under section 167(1), the Secretary is responsible for preparing
treatment plans.
Subclause (1)(b) inserts new section 167(2)(aab) which requires
the Secretary to explain the treatment plan to the person with a
disability in accordance with section 7 of the Disability Act 2006
which sets out how information is to be given to a person with a
disability.
Subclause (2) replaces the reference to "An" Authorised Program
Officer with a reference to "The" Authorised Program Officer in
section 167(3).
Clause 127 amends section 168(1) and (3)(c) of the Disability Act 2006 to
substitute references to Authorised Program Officer with the
Secretary instead, so that while a security order is in force, the
Secretary is required to apply to VCAT for an annual review of
the treatment plan and security order and so that the Secretary
may be required by VCAT to prepare a new treatment plan.
Clause 128 amends section 169(1) and (3)(c) of the Disability Act 2006 to
substitute references to Authorised Program Officer with the
Secretary instead, so that the Secretary can apply to VCAT for
review of a treatment plan and so that the Secretary may be
required by VCAT to prepare a new treatment plan.
Clause 129 amends section 176 of the Disability Act 2006 to insert a
requirement for the person in charge of a residential treatment
facility to advise the Secretary as to the circumstances in which a
security resident death has occurred if the residential treatment
facility is operated by a forensic disability service provider.
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Currently, section 176 of the Disability Act 2006 only requires
that the person in charge advise the Secretary to the Department
of Justice and Community Safety. The amendment to
section 176 accounts for amendments in the Bill enabling
forensic disability service providers (rather than just the
Secretary) to operate residential treatment facilities.
Clause 130 inserts new section 221(1)(fe) and (ff) into the Disability
Act 2006, to provide for new regulation-making powers for the
Governor in Council.
New section 221(1)(fe) enables regulations to be made with
respect to prescribing a disability service provider to be a
forensic disability service provider. This is required to give
effect to the meaning of "forensic disability service provider", a
definition which is inserted into section 3(1) of the Disability
Act 2006 by clause 108 of the Bill, and therefore to enable
prescribed disability service providers to operate residential
treatment facilities in accordance with the Disability Act 2006 as
amended by the Bill.
New section 221(1)(ff) enables regulations to be made with
respect to prescribing classes of persons who may apprehend a
resident who is absent from a residential treatment facility
without leave. This gives effect to new section 160(d) which is
inserted into the Disability Act 2006 by clause 121.
Clause 131 inserts new sections 262 and 263 into the Disability Act 2006
which provide for transitional matters in relation to the
classification of residential treatment facilities. This is due to the
amendments made to section 151 by clause 110, which remove
the current classification of short-term and long-term residential
facilities.
New section 262 provides that if immediately before the day on
which Part 3 of the Disability and Social Services Regulation
Amendment Act 2023 comes into operation a residential
treatment facility is classified as a short-term residential
treatment facility or a long-term residential treatment facility,
then on and from that day the facility is taken to be a residential
treatment facility without further classification. It also provides
that the facility known as the Intensive Residential Treatment
Program of the Statewide Forensic Service is taken to be a
residential treatment facility without further classification.
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New section 263 provides that if a person has been admitted to a
residential treatment facility for a period of 5 or more years as at
the day on which Part 3 of the Disability and Social Services
Regulation Amendment Act 2023 comes into operation, the
Secretary, within 12 months of that day, must assess the person's
circumstances to determine whether the person continues to meet
the criteria under the new section 152(1) for admission. If they
do not meet the criteria, the Secretary may, if the person is
subject to an order specified in section 152(2), allow the person
to continue to reside at the residential treatment facility for up to
6 months or, if the person is subject to a custodial supervision
order made under section 26 of the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 requiring them to be
detained at the facility, until that order is varied. The Secretary
must notify the person, body or court who made the order
requiring the person to reside at the facility if they allow the
person to continue to reside at the residential treatment facility.
Part 4--Amendment of Disability Service Safeguards Act 2018
and Residential Tenancies Act 1997
Division 1--Amendment of Disability Service Safeguards
Act 2018
Clause 132 amends section 151(3) of the Disability Service Safeguards
Act 2018 so that a form approved by the Disability Worker
Registration Board of Victoria, for the purposes of an application
for registration as a disability worker, must require an applicant
seeking registration as a disability worker to disclose their
criminal history or, if the applicant has a current NDIS clearance,
to disclose the status and details of their NDIS clearance. In this
context, the status of an NDIS clearance is intended to refer to
whether the person holds a clearance which is in force, at the
time of the application; the details of an NDIS clearance are
intended to cover other information about the NDIS clearance.
This clause also makes amendments so that the application form
for registration must require the applicant to authorise the
Disability Worker Registration Board to obtain the applicant's
criminal history or the status and details of the applicant's NDIS
clearance. This is because persons who already have an NDIS
clearance have had their criminal history assessed. Allowing the
status or details of an NDIS clearance to be obtained instead of
conducting a new criminal history check reduces the cost and
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time of registration and renewal of registration whilst still
preserving safeguards.
Clause 133 substitutes section 152 of the Disability Service Safeguards
Act 2018 to allow the Disability Worker Registration Board of
Victoria, before deciding an application for registration, to obtain
the status and details of an applicant's NDIS clearance (if held),
as an alternative to checking the applicant's criminal history, as is
currently required. This is because persons who already have an
NDIS clearance have had their criminal history assessed;
allowing the status and details of any NDIS clearance to be
obtained instead of conducting a new criminal history check
reduces the cost and time of registration and renewal of
registration whilst still preserving safeguards.
Clause 134 substitutes section 156(b) of the Disability Service Safeguards
Act 2018 so that, in assessing whether an individual is not a
suitable person to hold general registration, the Disability Worker
Registration Board of Victoria may have regard to the status of
the individual's NDIS clearance (if the individual holds a current
clearance or has held an NDIS clearance), as an alternative to the
individual's criminal history. This is because persons who
already hold or have held an NDIS clearance have had their
criminal history assessed; allowing the status of an NDIS
clearance to be obtained instead of conducting a new criminal
history check reduces the cost and time of registration and
renewal of registration whilst still preserving safeguards.
Clause 135 amends section 159(b) of the Disability Service Safeguards
Act 2018 so that, in assessing whether an individual is not a
suitable person to hold limited registration, the Disability Worker
Registration Board of Victoria may have regard to the status of
the individual's NDIS clearance (if the individual holds a current
clearance, or has held an NDIS clearance), as an alternative to the
individual's criminal history. This is because persons who
already hold or have held an NDIS clearance have had their
criminal history assessed; allowing the status of an NDIS
clearance to be obtained instead of conducting a new criminal
history check reduces the cost and time of registration and
renewal of registration whilst still preserving safeguards.
Clause 136 amends section 167(a) of the Disability Service Safeguards
Act 2018 so that, in assessing whether an individual is not a fit
and proper person to hold non-practicing registration, the
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Disability Worker Registration Board of Victoria may have
regard to the status of the individual's NDIS clearance (if the
individual holds a current clearance, or has held an NDIS
clearance), as an alternative to the individual's criminal history.
This is because persons who already hold or have held an NDIS
clearance have had their criminal history assessed; allowing an
NDIS clearance to be obtained instead of conducting a new
criminal history check reduces the cost and time of registration
and renewal of registration whilst still preserving safeguards.
Clause 137 inserts new section 188(1)(ba) of the Disability Service
Safeguards Act 2018 providing that an annual statement
accompanying an application for renewal of registration under
section 186(3) must also include details of any suspension,
revocation, expiry or surrender of an NDIS clearance, if the
applicant holds an NDIS clearance. This is because an
application for an NDIS clearance requires a stringent assessment
process, and is therefore a strong indicator of whether it would be
appropriate for an applicant's registration to be renewed.
Clause 138 inserts new section 252(h) of the Disability Service Safeguards
Act 2018 to provide a further requirement for the Disability
Worker Registration Board of Victoria to keep a record of
information about the NDIS clearance (if any) of each registered
disability worker. This is because an application for an NDIS
clearance requires a stringent assessment process, and is therefore
a useful record to maintain for registered disability workers.
Clause 139 amends section 257 of the Disability Service Safeguards
Act 2018.
Subclause (1) amends the heading to section 257 so that it refers
to a "Worker screening check", rather than an "NDIS worker
screening check". This is to reflect the new defined term
introduced at subclause (6) of this clause and used throughout
section 257.
Subclause (2) amends section 257(1)(a) and (b) to replace
references to "NDIS worker screening unit" and "NDIS worker
screening check" with "worker screening unit" and
"worker screening check" respectively. This is intended to align
with the new definitions of worker screening check and worker
screening unit at new section 257(4) introduced to cover both
NDIS checks and checks made under the Worker Screening
Act 2020, including by interstate worker screening units.
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Subclause (3) substitutes a new section 257(2)(a) so that, for the
purposes of determining whether to register a person as a
disability worker or a disability student or to impose conditions,
endorse registration, or suspend or cancel registration, the
Disability Worker Registration Board of Victoria may request a
worker screening unit to give the Disability Worker Registration
Board information including in relation to any of the following--
• whether the disability worker has a current NDIS
clearance that remains in force;
• whether the disability worker has been given an NDIS
exclusion or interim NDIS exclusion;
• whether the disability worker has made an application
for an NDIS clearance and whether the application has
been withdrawn or reinstated; and
• whether the NDIS clearance of the disability worker has
been suspended, revoked or surrendered.
Subclauses (4) and (5) amend section 257(2)(b) and (3) to replace
references to "NDIS worker screening unit" and "NDIS worker
screening check" with "worker screening unit" and
"worker screening check" respectively. This is intended to align
with the new definitions of worker screening check and worker
screening unit at new section 257(4) introduced to cover both
NDIS checks and checks made under the Worker Screening
Act 2020, including by interstate worker screening units.
Subclause (6) inserts a new section 257(4) of the Disability
Service Safeguards Act 2018 to define worker screening check
and worker screening unit. These new definitions are required
to cover both NDIS checks and checks made under the Worker
Screening Act 2020, including by interstate worker screening
units.
Clause 140 inserts a new Part 18 into the Disability Service Safeguards
Act 2018 which provides for transitional matters as follows--
• New section 289 provides that Division 1 of Part 11 of
the Disability Service Safeguards Act 2018, as in force
on the commencement day, applies to an application for
registration made under that Division before the
commencement day that has not been determined by the
Disability Worker Registration Board of Victoria; and
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• New section 290 provides that section 257, as in force
on the commencement day, applies to a disability
worker and a disability student registered before that
day.
When used in new Part 18, the term commencement day means
the day on which Division 1 of Part 4 of the Disability and
Social Services Regulation Amendment Act 2023 comes into
operation.
Division 2--Amendment of Residential Tenancies Act 1997
Subdivision 1--Residential tenancies
Clause 141 inserts and amends various definitions in section 3(1) of the
Residential Tenancies Act 1997.
Subclause (1) inserts the definition of DSOA client, which
replaces CoS supported accommodation client to capture a
broader class of persons and to account for changes to the name
of the Commonwealth Disability Support for Older Australians
program. The definition of SDA dwelling is also inserted as
defined in section 498BA.
Subclause (1) also inserts a definition of specified entity or
program which means the Secretary to the Department of
Families, Fairness and Housing, the Transport Accident
Commission, Victorian WorkCover Authority, the NDIS, and the
Commonwealth Disability Support for Older Australians
program or a prescribed program. Transport Accident
Commission and Victorian WorkCover Authority are also
defined in relation to their establishing Acts.
Subclause (2) substitutes the definitions of SDA provider and
SDA resident.
SDA provider means a person who is the owner or leaseholder of
an SDA dwelling if the premises are let under, or are proposed to
be let under, an SDA residency agreement or residential rental
agreement to an SDA resident. It is intended that the definition
of SDA provider should apply in relation to the person who is
letting the premises under an SDA residency agreement or
residential rental agreement directly to an SDA resident or SDA
residents. The definition is not intended to cover a person who
lets the premises to another person, where that second person lets
the premises under an SDA residency agreement or residential
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rental agreement directly to an SDA resident or SDA residents.
In such a scenario, only the second person should fall within the
definition of an SDA provider. It is also noted that the definition
of SDA provider applies in relation to a provider of premises that
are let to an SDA resident or SDA residents, whether or not there
are other occupants in the premises who may or may not be SDA
residents, as referred to in new section 498BA(1)(b)(iii) inserted
by clause 143.
SDA resident means a person with a disability who receives, or is
eligible to receive, funded daily independent living support and
who is residing, or proposes to reside, in an SDA dwelling under
an SDA residency agreement or residential rental agreement.
Subclause (3) substitutes "2020" into the definition of SDA
enrolled dwelling, to refer to the most recent and in force
Commonwealth's National Disability Insurance Scheme
(Specialist Disability Accommodation) Rules.
Clause 142 inserts, substitutes and repeals definitions in section 498B of the
Residential Tenancies Act 1997, for the purposes of Part 12A of
that Act, which addresses specialist disability accommodation.
Subclause (1) inserts a definition of SDA dwelling, which refers
to the meaning given by section 498BA. It also substitutes the
definition of support plan, which currently means an SDA
resident's plan that is in effect under section 37 of the National
Disability Insurance Scheme Act 2013 of the Commonwealth.
The substituted definition continues to mean an SDA resident's
plan that is in effect under section 37 of the National Disability
Insurance Scheme Act 2013 and to provide that it may also mean
an SDA resident's plan that is funded by a specified entity or
program. This is to reflect amendments being made throughout
the Bill to expand the application of protections in Part 12A of
the Residential Tenancies Act 1997.
Subclause (2) repeals the definitions of SDA resident (which is
now defined in section 3(1)--see clause 141), CoS Supported
accommodation client (which is now replaced by DSOA client),
SDA provider and Supported Independent Living provider
(as this term is no longer used).
Clause 143 inserts a new section 498BA into the Residential Tenancies
Act 1997, to define SDA dwelling. This term captures the
following dwellings--
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• SDA enrolled dwellings (as currently defined); or
• any other permanent dwelling that provides long term
accommodation and where daily independent living
support is provided to one or more residents with a
disability funded by a specified entity or program and
may comprise of--
• an area or room exclusively occupied by an SDA
resident and common areas shared by other SDA
residents under an SDA residency agreement; or
• the dwelling as a whole occupied exclusively by
an SDA resident under an SDA residency
agreement; or
• the dwelling as a whole occupied under a
residential rental agreement by at least one SDA
resident and other occupants who may or may
not be SDA residents.
New section 498BA(2) provides that the following types of
accommodation are not SDA dwellings--
• premises that are not occupied under an SDA residency
agreement or a residential rental agreement;
• a premises occupied under a residential rental
agreement in relation to which the residential rental
provider and, if appropriate, the head renter of the
premises--
• do not receive funding from a specified entity or
program in relation to any disability support
provided at the premises; and
• have not entered into an agreement with a
specified entity or program in relation to any
disability support provided at the premises;
• a health or residential service;
• temporary crisis accommodation;
• a short-term accommodation dwelling or
accommodation that is used to provide respite or
transitional accommodation.
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The note at the foot of new section 498BA(2)(a) refers to
section 26(3) and the definition of residential rental agreement
in section 3(1) of the Residential Tenancies Act 1997.
A residential rental agreement is defined in section 3(1) to mean
an agreement, whether or not in writing, and whether express or
implied, under which a person lets premises as a residence (but
does not include an SDA residency agreement). Section 26(3)
provides that a failure to comply with the standard form
requirements of a residential agreement contained in section 26
does not make the residential agreement illegal, invalid, or
unenforceable.
The note is intended to serve as a reminder that a residential
rental agreement may exist even where parties have not entered
into an agreement in writing, or if an agreement does not comply
with the standard form requirements under section 26 of the
Residential Tenancies Act 1997. Premises occupied under such
an agreement are not excluded from new section 498BA(2), and
may still fall within the definition of SDA dwelling in new
section 498BA(1).
New section 498BA(3) provides for a definition of head renter
for the purposes of the section as a renter under the head
residential rental agreement who has granted another person
possession of the premises under a sub-residential rental
agreement.
Clause 144 inserts a new section 498DAA into the Residential Tenancies
Act 1997.
Subsection (1) states that this section applies to an SDA provider
if--
• immediately before the commencement day--
• a residential rental agreement is in force between
the SDA provider and an SDA resident in respect
of an SDA dwelling; and
• the SDA resident has not been given an
information statement under section 498D; and
• on or after the commencement day--
• the SDA resident has not been given a notice to
vacate under Division 9 of Part 2; or
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• if the SDA resident has at any time been given a
notice to vacate under Division 9 of Part 2 of the
Residential Tenancies Act 1997, either--
• the SDA provider withdraws the notice
under section 91ZZQ of that Act; or
• the Tribunal determines that the notice to
vacate is not valid
The note at the foot of new section 498DAA(1) refers to
section 26(3) and the definition of residential rental agreement
in section 3(1) of the Residential Tenancies Act 1997.
A residential rental agreement is defined in section 3(1) to mean
an agreement, whether or not in writing, and whether express or
implied, under which a person lets premises as a residence (but
does not include an SDA residency agreement). Section 26(3)
provides that a failure to comply with the standard form
requirements of a residential agreement contained in section 26
does not make the residential agreement illegal, invalid, or
unenforceable.
The note is included for the benefit of SDA providers who are
transitioning residents into the Part 12A framework. The note is
a reminder that section 498DAA obligations may apply in
situations where the relevant premises are occupied in
circumstances where an SDA agreement has not been
established, and where a residential rental agreement has been
entered into, even if that agreement did not comply with standard
form requirements under section 26 or if the agreement was not
entered into in writing. Premises occupied under such an
agreement may still fall within the definition of an SDA dwelling
in new section 498BA(1).
New section 498DAA(2) requires an SDA provider, within
6 months of the commencement day, to give the SDA resident an
information statement in the form approved by the Director under
section 498D of the Residential Tenancies Act 1997 and offer
the SDA resident the choice to enter into or establish an SDA
residency agreement with the SDA provider. Failure to comply
is an offence with a maximum penalty of 300 penalty units for a
natural person, or 750 penalty units for a body corporate
respectively.
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A note is included under new section 498DAA(2) to remind
readers that section 498E of the Residential Tenancies Act 1997
imposes obligations on persons providing information to an SDA
resident under Part 12A of that Act to explain the contents of the
information to the SDA resident.
New section 498DAA(3) provides that if an SDA provider enters
into or establishes an SDA residency agreement with an SDA
resident in respect of an SDA dwelling that commences before
the term of a residential rental agreement between the SDA
provider and SDA resident in respect of that SDA dwelling ends,
that residential rental agreement is taken to terminate
immediately before the SDA residency agreement comes into
operation.
New section 498DAA(4) provides that for the purposes of
section 91B of the Residential Tenancies Act 1997, if a
residential rental agreement is taken to terminate under
subsection (3), it is taken to have been terminated in accordance
with Division 9 of Part 2 of that Act.
New section 498DAA(5) contains a definition of commencement
day when used in new section 498DAA, being the day on which
section 144 of the Disability and Social Services Regulation
Amendment Act 2023 comes into operation.
Clause 145 amends section 498T(2) of the Residential Tenancies Act 1997
to list a person employed and authorised by Transport Accident
Commission as an additional entity whose right of entry is
unaffected by Division 6 of Part 12A of that Act.
Clause 146 substitutes a reference in section 498ZV(6) of the Residential
Tenancies Act 1997 to "an SDA resident's Supported
Independent Living provider" with the words "the provider of the
SDA resident's daily independent living support", to remove
reference to the defined term being repealed by clause 142 and
broaden its application.
Clause 147 substitutes a reference in section 498ZX(9) of the Residential
Tenancies Act 1997 to "an SDA resident's Supported
Independent Living provider" with the words "the provider of the
SDA resident's daily independent living support", to remove
reference to the defined term being repealed by clause 142 and
broaden its application.
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Clause 148 amends the definitions of former SDA provider and former SDA
resident in section 498ZZX of the Residential Tenancies
Act 1997 to increase the class of providers and residents to which
Division 12 of Part 12A of that Act rights and obligations apply.
The amended definition of former SDA provider defines it as an
SDA provider who, before the termination of an SDA residency
agreement, was the owner or leaseholder of an SDA dwelling.
This definition removes the requirement that the SDA provider
was registered under the NDIS to be a registered provider of
supports.
The amended definition of former SDA resident requires that,
before the termination of an SDA residency agreement, the
resident received funded daily independent living support in an
SDA dwelling, instead of funding under the NDIS to reside in an
SDA enrolled dwelling.
Clause 149 amends section 498ZZZPA of the Residential Tenancies
Act 1997 by omitting the word "enrolled" in the heading and in
the body of the section wherever occurring, so that a 6-month
prohibition on letting premises used for SDA enrolled dwellings
after a notice to vacate has been given applies to SDA dwellings
instead of only SDA enrolled dwellings. This is to reflect the
intention that the protections for SDA enrolled dwellings are now
extended to similar accommodation and support arrangements.
Clause 150 inserts a new Schedule 3 after Schedule 2 to the Residential
Tenancies Act 1997 to provide for transitional provisions in
relation to the commencement of the Disability and Social
Services Regulation Amendment Act 2023 and the repeal of
provisions relating to group homes under the Disability Act 2006
and their transition to SDA dwellings under the Residential
Tenancies Act 1997.
New clause 1 sets out definitions of disability service provider,
group home and residential statement by reference to the
Disability Act 2006 for the purposes of Schedule 3.
New clause 2 provides for transitional matters as a consequence
of the repeal of Division 2 of Part 5 (Group homes) of the
Disability Act 2006 by clause 90 of the Bill. On and from the
commencement of clause 90 of the Bill, a group home will be
taken to be an SDA dwelling; and a group home resident will be
taken to be an SDA resident until the person enters into an SDA
76
residency agreement or residential rental agreement; and a
disability service provider operating a group home will be taken
to be an SDA provider (unless they are not the owner or
leaseholder of the group home, in which case the owner or
leaseholder is the SDA provider); and a residential statement
given to a resident of a group home by a disability service
provider before the commencement of clause 90 of the Bill is
taken on and from that commencement to be an SDA residency
agreement made in accordance with Division 3 of Part 12A of the
Residential Tenancies Act 1997. In relation to that residential
statement, the period specified under section 57(2)(a) of the
Disability Act 2006 will be taken to be the term of the SDA
residency agreement, the rent component of the residential charge
specified under section 57(2)(d) of the Disability Act 2006 will
be taken to be the rent for the purposes of section 498J(1)(b) of
the Residential Tenancies Act 1997 and the services component
of the residential charge specified under section 57(2)(d) of the
Disability Act 2006 will be taken to be the amount of utilities
charges in the SDA residency agreement.
New clause 3 imposes requirements on deemed SDA providers,
as deemed by new clause 2, in relation to the transition of group
home residents to SDA residents. New clause 3(2) provides that
an SDA provider must give an SDA resident an information
statement no later than 6 months after the commencement of
clause 90 of the Bill in an approved form in accordance with
section 498D(3) of the Residential Tenancies Act 1997, and
comply with section 498E of that Act to explain it. Failure to
comply is an offence with a maximum penalty of 300 penalty
units for a natural person, and 750 penalty units for a body
corporate. As soon as practicable after giving the SDA resident
the information statement, the SDA provider must make all
reasonable efforts to enter into an SDA residency agreement with
the SDA resident, or work with the SDA resident in accordance
with section 498G of the Residential Tenancies Act 1997 to
establish an SDA residency agreement, or enter into a residential
rental agreement in respect of the SDA dwelling. The SDA
provider must make all reasonable efforts to enter into such an
agreement before the end of the term of the SDA residency
agreement as determined under clause 2(5)(a).
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Subdivision 2--Notification of Public Advocate
Clause 151 amends section 498ZV of the Residential Tenancies Act 1997 in
relation to a notice of temporary relocation to omit the Public
Advocate in section 498ZV(4) so that the SDA provider is no
longer required to notify them of the details of a notice of
temporary relocation within 24 hours of the notice being given to
an SDA recipient. Notifying the Public Advocate will be
undertaken by the Director under new section 498ZV(5A) as
inserted by clause 230 of the Bill.
Clause 152 amends section 498ZX of the Residential Tenancies Act 1997 in
relation to a notice to vacate by an SDA provider to omit the
Public Advocate in section 498ZX(7) so that the SDA provider is
no longer required to notify them of the details of a notice to
vacate within 24 hours of the notice being given to an SDA
recipient. Notifying the Public Advocate will be undertaken by
the Director under new section 498ZX(8A) as inserted by
clause 231 of the Bill.
Clause 153 amends section 498ZZD of the Residential Tenancies Act 1997
in relation to a notice to vacate by a mortgagee in respect of an
SDA enrolled dwelling. This omits the Public Advocate in
section 498ZZD(3) so that the mortgagee is no longer required to
notify them of the details of a notice to vacate within 24 hours of
the notice being given to an SDA recipient. Notifying the Public
Advocate will be undertaken by the Director under new section
498ZZD(4A) as inserted by clause 232 of the Bill.
Subdivision 3--Consequential amendments
Clause 154 amends section 1(j) (Purposes) of the Residential Tenancies
Act 1997 to use the new defined term of "SDA dwelling", rather
than "SDA enrolled dwelling", to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 155 amends various definitions in section 3(1) of the Residential
Tenancies Act 1997 to refer to SDA dwellings rather than SDA
enrolled dwellings to reflect the intention that the protections for
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements in the definitions of
fair wear and tear, health or residential service, notice of
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intention to vacate, notice to vacate, rooming house and urgent
repairs.
Clause 156 amends the note at the foot of section 23 of the Residential
Tenancies Act 1997 to use the new defined term of
"SDA dwelling" to reflect the amendment made in the definition
of health or residential service by clause 155.
Clause 157 amends note 2 at the foot of section 26 of the Residential
Tenancies Act 1997 to use the new defined term of
"SDA dwelling" to reflect the amendments made to Part 12A of
that Act by the Bill.
Clause 158 amends the note at the foot of section 29 of the Residential
Tenancies Act 1997 to use the new defined term of
"SDA dwelling" to reflect the amendments made to Part 12A of
that Act by the Bill.
Clause 159 amends section 446(bc) of the Residential Tenancies Act 1997
to use the new defined term of "SDA dwelling" to reflect the
intention that the protections for SDA enrolled dwellings are now
extended to similar accommodation and support arrangements.
Clause 160 amends the heading to section 486B of the Residential
Tenancies Act 1997 to use the new defined term of
"SDA dwelling" to reflect the intention that the protections for
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements.
Clause 161 amends section 486C of the Residential Tenancies Act 1997 to
use the new defined term of "SDA dwelling" to reflect the
intention that the protections for SDA enrolled dwellings are now
extended to similar accommodation and support arrangements.
Clause 162 amends definitions in section 498B of the Residential Tenancies
Act 1997 to use the new defined term of "SDA dwelling" as
inserted by clause 142 of the Bill in the definitions of rent and
SDA residency agreement, rather than "SDA enrolled dwelling".
Clause 163 amends section 498C of the Residential Tenancies Act 1997,
including its heading, to use the new defined term of
"SDA dwelling", rather than "SDA enrolled dwelling", to reflect
the intention that the protections for SDA enrolled dwellings are
now extended to similar accommodation and support
arrangements.
79
Clause 164 amends section 498D(2) and (3) of the Residential Tenancies
Act 1997 to use the new defined term of "SDA dwelling" to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 165 amends the definition of relevant person in section 498EA(6) of
the Residential Tenancies Act 1997 to use the new defined term
of "SDA dwelling" to reflect the intention that the protections for
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements.
Clause 166 amends section 498F of the Residential Tenancies Act 1997,
including its heading, to make SDA residency agreements
applicable to the new broader term of SDA dwelling, rather than
SDA enrolled dwelling, to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 167 amends section 498H of the Residential Tenancies Act 1997 to
use the phrase "SDA dwelling", to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 168 amends section 498J of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 169 amends section 498LA of the Residential Tenancies Act 1997,
including its heading, to refer to SDA dwellings rather than SDA
enrolled dwellings, to reflect the intention that the protections for
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements.
Clause 170 amends section 498LB of the Residential Tenancies Act 1997 to
substitute the phrase "SDA recipient" with the words
"SDA resident" to expand the cohort who is entitled to receive
information from an SDA provider before entering an SDA
residency agreement, and to refer to SDA dwellings rather than
SDA enrolled dwellings, to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
80
Clause 171 amends section 498LC(3) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 172 amends section 498M of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 173 amends section 498N of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 174 amends section 498Q of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 175 amends section 498S(1) of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 176 amends section 498T of the Residential Tenancies Act 1997 to
use the phrase "SDA dwelling", to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 177 amends section 498U of the Residential Tenancies Act 1997,
including its heading, to refer to SDA dwellings rather than SDA
enrolled dwellings, to reflect the intention that the protections for
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements.
Clause 178 amends section 498V of the Residential Tenancies Act 1997,
including its heading, to refer to SDA dwellings rather than SDA
enrolled dwellings, to reflect the intention that the protections for
81
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements.
Clause 179 amends section 498W(b) of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 180 amends section 498X(2) of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 181 amends section 498Y of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 182 amends section 498Z of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 183 amends section 498ZE(5)(a) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 184 amends section 498ZI(2) of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 185 amends section 498ZL(4) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
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Clause 186 amends section 498ZM and the example at the foot of section
498ZM(2) of the Residential Tenancies Act 1997 to refer to
SDA dwellings rather than SDA enrolled dwellings, to reflect the
intention that the protections for SDA enrolled dwellings are now
extended to similar accommodation and support arrangements.
Clause 187 amends section 498ZN of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 188 amends the definition of duty provision in section 498ZO of the
Residential Tenancies Act 1997 to refer to SDA dwellings
rather than SDA enrolled dwellings, to reflect the intention that
the protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 189 amends section 498ZP(2A) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 190 amends section 498ZR(2) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 191 amends section 498ZV of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 192 amends section 498ZW(1) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 193 amends section 498ZWA of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
83
dwellings are now extended to similar accommodation and
support arrangements.
Clause 194 amends section 498ZX of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 195 amends section 498ZY(2) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 196 amends section 498ZZA(2)(b) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 197 amends section 498ZZB(2) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 198 amends section 498ZZCA(1) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 199 amends section 498ZZD(1) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 200 amends section 498ZZE of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
84
Clause 201 amends section 498ZZF(1) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 202 amends section 498ZZH of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 203 amends section 498ZZHA(d) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 204 amends section 498ZZJ of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 205 amends section 498ZZL of the Residential Tenancies Act 1997,
including its heading, to refer to SDA dwellings rather than SDA
enrolled dwellings, to reflect the intention that the protections for
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements.
Clause 206 amends section 498ZZM of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 207 amends section 498ZZN of the Residential Tenancies Act 1997,
including its heading, to refer to SDA dwellings rather than SDA
enrolled dwellings, to reflect the intention that the protections for
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements.
Clause 208 amends section 498ZZR of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
85
dwellings are now extended to similar accommodation and
support arrangements.
Clause 209 amends section 498ZZU of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 210 amends section 498ZZV of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 211 amends section 498ZZW of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 212 amends, inserts and repeals definitions in section 498ZZX of the
Residential Tenancies Act 1997.
Subclause (1) repeals the definition of SDA enrolled dwelling
owner.
Subclause (2) inserts the definition of SDA dwelling owner,
which, in relation to an SDA dwelling in respect of which an
SDA residency agreement has been terminated, means the former
SDA provider and either the owner of the SDA dwelling or a
mortgagee who has secured a mortgage against the SDA
dwelling.
Subclause (3) amends the definition of stored goods in section
498ZZX of the Residential Tenancies Act 1997 to refer to SDA
dwellings rather than SDA enrolled dwellings.
Clause 213 amends section 498ZZY of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
86
Clause 214 amends section 498ZZZ(1) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 215 amends section 498ZZZA(2) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 216 amends section 498ZZZC of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 217 amends section 498ZZZD of the Residential Tenancies
Act 1997, including its heading, to refer to SDA dwellings rather
than SDA enrolled dwellings, to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 218 amends section 498ZZZF of the Residential Tenancies
Act 1997, including its heading, to refer to SDA dwellings rather
than SDA enrolled dwellings, to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 219 amends section 498ZZZG(3) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 220 amends section 498ZZZI(b) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 221 amends section 498ZZZJ of the Residential Tenancies Act 1997
to refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
87
dwellings are now extended to similar accommodation and
support arrangements.
Clause 222 amends section 498ZZZK of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 223 amends section 498ZZZL of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 224 amends section 498ZZZM of the Residential Tenancies
Act 1997, including its heading, to refer to SDA dwellings rather
than SDA enrolled dwellings, to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 225 amends section 498ZZZO of the Residential Tenancies
Act 1997, including its heading, to refer to SDA dwellings rather
than SDA enrolled dwellings, to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 226 amends section 498ZZZP of the Residential Tenancies
Act 1997, including its heading, to refer to SDA dwellings rather
than SDA enrolled dwellings, to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
Clause 227 amends section 505C of the Residential Tenancies Act 1997 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 228 amends section 506(3A)(b)(i) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
88
Clause 229 amends section 511(1)(hb) of the Residential Tenancies
Act 1997 to refer to SDA dwellings rather than SDA enrolled
dwellings. It also inserts into section 511(1) additional items
with respect to which the Governor in Council may make
regulations, namely, prescribing programs for the purposes of the
definitions of DSOA client and specified entity or program in
section 3(1).
Subdivision 4--Notification of Director
Clause 230 substitutes section 498ZV(5) of the Residential Tenancies
Act 1997 and inserts new section 498ZV(5A) and (5B) in the
Residential Tenancies Act 1997.
New section 498ZV(5) requires the SDA provider to notify the
Director of the details of a notice of temporary relocation within
24 hours after the notice has been given to an SDA resident who
is not an SDA recipient. This removes the obligation to notify
the Public Advocate, and broadens the class of relevant
recipients; currently, the provision relates to notices given to a
CoS supported accommodation client. Failure to comply is an
offence with a maximum penalty of 60 penalty units.
New section 498ZV(5A) requires the Director to provide details
of the notice of temporary relocation to the Public Advocate.
This shifts the onus of notifying the Public Advocate from SDA
providers to the Director.
New section 498ZV(5B) requires the Director to provide details
of the notice of the temporary relocation to the Transport
Accident Commission or the Victorian WorkCover Authority, if
the SDA resident is a person whose daily independent living
support is funded by the Transport Accident Commission or the
Victorian WorkCover Authority.
Clause 231 substitutes section 498ZX(8) and inserts new section 498ZX(8A)
and (8B) in the Residential Tenancies Act 1997.
New section 498ZX(8) requires the SDA provider to notify the
Director of the details of a notice to vacate within 24 hours after
the notice has been given to an SDA resident who is not an SDA
recipient. This removes the obligation to notify the Public
Advocate, and broadens the class of relevant recipients;
currently, the provision relates to notices given to a CoS
89
supported accommodation client. Failure to comply is an offence
with a maximum penalty of 60 penalty units.
New section 498ZX(8A) requires the Director to provide details
of the notice to vacate to the Public Advocate. This shifts the
onus of notifying the Public Advocate from SDA providers to the
Director.
New section 498ZX(8B) requires the Director to provide the
details of the notice to vacate to the Transport Accident
Commission or the Victorian WorkCover Authority (as the case
requires) if the SDA resident is a person whose daily independent
living support is funded by the Transport Accident Commission
or the Victorian WorkCover Authority.
Clause 232 substitutes section 498ZZD(4) and inserts new section
498ZZD(4A) and (4B) in the Residential Tenancies Act 1997.
New section 498ZZD(4) requires the mortgagee to notify the
Director of the details of a notice to vacate within 24 hours after
the notice has been given to an SDA resident who is not an SDA
recipient. This removes the obligation to notify the Public
Advocate, and broadens the class of relevant recipients;
currently, the provision relates to notices given to a CoS
supported accommodation client. Failure to comply is an offence
with a maximum penalty of 60 penalty units.
New section 498ZZD(4A) requires the Director to provide details
of the notice to vacate to the Public Advocate. This shifts the
onus of notifying the Public Advocate from mortgagees to the
Director.
New section 498ZZD(4B) requires the Director to provide the
details of the notice to vacate to the Transport Accident
Commission or the Victorian WorkCover Authority (as the case
requires) if the SDA resident is a person whose daily independent
living support is funded by the Transport Accident Commission
or the Victorian WorkCover Authority.
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Part 5--Amendment of other Acts
Division 1--Amendment of Crimes Act 1958
Clause 233 amends the definition of residential service in section 52A of the
Crimes Act 1958 to include accommodation approved for
supervised treatment under section 187 of the Disability
Act 2006.
Division 2--Amendment of Guardianship and Administration
Act 2019
Clause 234 amends section 17(7) of the Guardianship and Administration
Act 2019. Clause 234 amends the definition of institution in
section 17(7) of the Guardianship and Administration
Act 2019 to include accommodation approved for supervised
treatment under section 187 of the Disability Act 2006.
Division 3--Amendment of Independent Broad-based
Anti-corruption Commission Act 2011
Clause 235 amends section 3(1) of the Independent Broad-based
Anti-corruption Commission Act 2011 to insert a paragraph
referring to accommodation approved for supervised treatment
under section 187 of the Disability Act 2006 in the definition of
detained person.
Division 4--Amendment of Medical Treatment Planning and
Decisions Act 2016
Clause 236 amends the definition of health facility in section 3(1) of the
Medical Treatment Planning and Decisions Act 2016 to insert
a new paragraph (caa) which refers to accommodation approved
for supervised treatment under section 187 of the Disability
Act 2006.
Division 5--Amendment of Residential Tenancies Act 1997
Clause 237 inserts an additional paragraph to the definition of health or
residential service in section 3(1) of the Residential Tenancies
Act 1997 so that accommodation approved for supervised
treatment under section 187 of the Disability Amendment
Act 2006 is also included within the definition.
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Division 6--Amendment of Social Services Regulation Act 2021
Clause 238 inserts an additional paragraph to the definition of exclusion
decision in section 3(1) of the Social Services Regulation
Act 2021 to clarify that decisions prescribed through regulations
are recognised as exclusion decisions in section 3(1). Presently,
section 316(1)(e) of the Social Services Regulation Act 2021
enables regulations to prescribe decisions made under Acts other
than the Social Services Regulation Act 2021 to be exclusion
decisions for the purposes of Part 5 of that Act. The amendment
to the definition of exclusion decision is intended to ensure that
an exclusion decision will be interpreted to include prescribed
exclusion decisions.
Clause 239 amends the heading to section 100 of the Social Services
Regulation Act 2021 to include the words "WCES workers or
carers". The purpose of this change is to distinguish the
obligation in section 100, which applies in relation to WCES
workers or carers, from the obligation in new section 100A,
inserted by clause 240, which applies in relation to WCES
service users.
Clause 240 inserts new sections 100A and 100B into the Social Services
Regulation Act 2021. These new sections introduce new
safeguards in relation to WCES service users and persons with
the characteristics of a WCES service user.
New section 100A requires mitigation of the impact of an
interview or hearing on a WCES service user or a person with the
characteristics of a WCES service user. New section 100A(1)
provides that before interviewing a WCES service user or a
person with the characteristics of a WCES service user, the
Regulator, a Panel, an authorised officer or an independent
investigator must consider, and take all reasonable steps to
mitigate, any negative effect that the interview may have on the
service user or person. New section 100A(2) provides that before
requiring a WCES service user or a person with the
characteristics of a WCES service user to attend a hearing
conducted by a Panel under this Part, the Panel must consider,
and take all reasonable steps to mitigate, any negative effect that
the hearing may have on the service user or person. New
section 100A is intended to introduce safeguards for WCES
service users and persons with the characteristics of a WCES
service user.
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New section 100B introduces safeguards that apply specifically
to the interview of children, similar to those in section 16R of the
Child Wellbeing and Safety Act 2005 which apply to the
Commission for Children and Young People when interviewing a
child for the purposes of the Reportable Conduct Scheme under
that Act. New section 100B applies in addition to new
section 100A, in relation to a child who is a WCES service user
or has the characteristics of a WCES service user.
New section 100B(1) is an application provision, and provides
that the section applies if the Regulator, a Panel, an authorised
officer or an independent investigator interviews, or proposes to
interview, a child that is a WCES service user or has the
characteristics of a WCES service user. Interviews of children
may occur in the context of investigations conducted under Part 5
of the Social Services Regulation Act 2021.
New section 100B(2) provides that the Regulator, authorised
officer, independent investigator or Panel may engage a person
with appropriate qualifications, training or experience in
interviewing child victims of abuse to conduct an interview on
behalf of the Regulator, Panel, authorised officer or independent
investigator.
New section 100B(3) provides that before interviewing a child,
the interviewer must consider, and take all reasonable steps to
mitigate, any negative effect that the interview may have on the
child.
New section 100B(4) provides that without limiting new
section 100B(3), the Regulator, Panel, authorised officer or
independent investigator must consider whether the child's
primary family carer (within the meaning of the Commission for
Children and Young People Act 2012) should be present during
the interview.
Clause 241 amends section 112(1) of the Social Services Regulation
Act 2021, to clarify when the entry power in section 112 does not
apply. Presently, section 112(1) provides for a power of entry
into premises (other than residential premises) that an authorised
officer reasonably believes is owned or occupied by a registered
social services provider. By comparison, section 113 provides
for a power of entry into residential premises.
93
Amendments to section 113 made by this Bill will provide
further detail as to the meaning of the term 'residential premises'.
The amendment to section 112(1) made by this clause will ensure
that sections 112 and 113 continue to complement each other.
Clause 242 amends section 113 of the Social Services Regulation Act 2021,
relating to the power to enter residential premises with consent.
Subclause (1) substitutes section 113(2) and inserts new section
113(2A), to introduce a new power of entry without consent that
is available in particular circumstances. Presently, section 113(2)
prohibits entry into bedrooms of residential premises without the
consent of the resident of the bedroom.
New section 113(2)(a) provides for specific entry powers in
relation to the bedrooms of service users of a supported
residential service or prescribed residential disability service. To
enter these bedrooms, the authorised officer or independent
investigator must have the consent of the service user, or if the
user is unable to provide consent, the consent of the resident's
guardian, parent or next of kin in accordance with new section
113(5)(ab). However, if the authorised officer or independent
investigator is unable to obtain such consent after taking all
reasonable steps to do so, the authorised officer or independent
investigator may still be able to enter the bedroom if they
consider that the entry is reasonably necessary for the purposes of
monitoring compliance with a provision of the Social Services
Regulation Act 2021 or investigating a possible contravention of
the Social Services Regulation Act 2021, having regard to the
matters specified in new section 113(2A).
New section 113(2)(b) provides that in any other case, the
authorised officer or independent investigator may enter a
bedroom if they have the consent of the resident of the bedroom
to do so. This means that entry into the bedrooms of service
users--other than service users of supported residential services
or prescribed residential disability services--and into bedrooms
in the private residence of the social service provider or any
person employed or engaged by the social service provider, can
only occur with consent.
New section 113(2A) specifies matters that the authorised officer
or independent officer must have regard to if they are considering
exercising the power of entry in new section 113(2)(a)(ii). The
matters listed at new section 113(2A)(a) to (d) are aimed at
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ensuring that the power to enter without consent is only used
where appropriate; and new section 113(2A)(e) ensures that the
authorised officer or independent investigator is able to have
regard to any other matter that they reasonably consider to be
appropriate.
Subclause (2) amends section 113(3) of the Social Services
Regulation Act 2021, which provides for notification
requirements in relation to the exercise of the power of entry
under section 113. Subclause (2)(a) makes a grammatical
correction to section 113(3). Subclause (2)(b) amends section
113(3)(b) to facilitate the insertion of new section 113(3)(c).
Subclause (2)(c) inserts new section 113(3)(c), introducing a new
requirement to notify the occupier or resident of the power of
entry into bedrooms without consent in new section 113(2)(a)(ii),
inserted by subclause (1). It is expected that a notification in
accordance with new section 113(3)(c) would only be required
where relevant--that is, where the authorised officer or
independent investigator proposed to enter a bedroom of a
service user in residential premises occupied by a provider of a
supported residential service or a prescribed residential disability
service.
Subclause (3) amends section 113(5) of the Social Services
Regulation Act 2021, which describes how consent to entry and
inspection of the residential premises or bedroom may be given.
Subclause (3)(a) amends section 113(5)(a), such that it applies
for the purposes of section 113(2)(b). This change reserves the
existing application of section 113(5)(a)--which provides that
consent may be given by the resident's guardian or parent if the
resident of the bedroom is unable to give consent--to
circumstances involving entry into bedrooms other than those of
service users in supported residential services or prescribed
disability residential services.
Subclause (3)(b) inserts new section 113(5)(ab), which provides
that for the purposes of section 113(2)(a), consent may be given
by the resident's guardian, parent or next of kin if the resident of
the bedroom is unable to give consent. Unlike section 113(5)(a)
(as it presently is, and as amended), section 113(5)(ab) provides
an additional avenue of consent through the next of kin of the
resident of the bedroom. This provision only applies in relation
to the circumstances described at new section 113(2)(a), being
entry into a bedroom of a service user in residential premises
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occupied by a provider of a supported residential service or a
prescribed residential disability service.
Subclause (3)(c) makes a correction to current section 113(5)(b),
by inserting the word 'and' to clarify that any or all of the matters
listed in section 113(5) may apply in relation to consent as
relevant.
Subclause (3)(d) amends section 113(5)(c) to provide that
consent may be with withdrawn except in the case of entry under
section 113(2)(a)(ii). This change is consequential to the
insertion of the new power of entry without consent at new
section 113(2)(a)(ii), as it means that where that power is
exercised, consent is irrelevant and the requirement to leave the
premises at section 113(6) will not apply.
Subclause (4) inserts new section 113(7), which is an
interpretation provision. This provision defines residential
premises for the purposes of section 113 (as well as section 112,
per section 112(1) as amended by this Bill), of the Social
Services Regulation Act 2021. Presently, section 113 provides a
power of entry into "residential premises", which is not defined.
New section 113(7) clarifies that the term means premises, or
part of premises, occupied by a registered social service provider,
that is used as the private residence of the social service provider
or any person employed or engaged by the social service
provider, or that is used as the bedroom of a social service user.
New section 113(7) also defines the term supported residential
service by reference to section 214 of the Social Services
Regulation Act 2021 but limits the term to mean services
registered under Part 3 of the Social Services Regulation
Act 2021. This is because entry into unregistered social services
is not intended to be covered by section 113--under those
circumstances, the relevant power of entry is that provided for in
section 114 of the Social Services Regulation Act 2021.
Clause 243 amends the definition of supported residential service in section
214(1) of the Social Services Regulation Act 2021 to exclude
accommodation approved for supervised treatment under
section 187 of the Disability Act 2006.
Clause 244 amends section 294(2) of the Social Services Regulation
Act 2021 to correct a number of incorrect references to section
numbers.
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Paragraph (a) amends section 294(2)(zp) of the Social Services
Regulation Act 2021 by substituting "240(1)" for "239(1)" to
amend a referencing error, so that section 294(2)(zp) correctly
refers to section 240(1) and (2), which set out the offence of
requesting certain payments and the offence of accepting certain
amounts respectively; there is currently no offence in section
239(1) or (2) of the Social Services Regulation Act 2021.
Paragraph (b) amends section 294(2)(zy) of the Social Services
Regulations Act 2021 by substituting "250" for "249" to amend
a referencing error, so that section 294(2)(zy) correctly refers to
the offence under section 250 of not returning a security deposit
within 14 days; there is no offence in section 249 of the Social
Services Regulations Act 2021.
Paragraph (c) amends section 294(2)(zz) of the Social Services
Regulations Act 2021 by substituting "251(1)" for "250(1)", so
that section 294(2)(zz) correctly refers to section 251(1) and (2).
As amended by paragraph (b), the offence in section 250, which
does not contain subsections, will be referred to in amended
section 294(2)(zy). Section 251(1) is an offence provision
relating to the failure to provide a condition report and section
251(2) is an offence provision relating to the failure to provide a
condition report as soon as practicable.
Clause 245 substitutes section 316(1)(h)(iii) of the Social Services
Regulation Act 2021, which currently enables regulations to be
made prescribing requirements to be met by social service
providers for the purpose of registration with respect to the
qualifications, skills and suitability of persons employed by
providers. As substituted, new section 316(1)(h)(iii) expands on
the existing section 316(1)(h)(iii), enabling regulations to be
made prescribing requirements to be met by social service
providers for the purpose of registration with respect to the
qualifications, skills and suitability of persons employed or
engaged by providers, and expressly includes persons engaged as
volunteers or approved as foster carers.
Clause 246 amends section 320 of the Social Services Regulations Act 2021
to substitute the reference to section 105 of the Children, Youth
and Families Act 2005 with a reference to section 106 of the
Children, Youth and Families Act 2005. This is a correction to
ensure that the relevant decision is referred to as an exclusion
decision in section 320. Under section 105 of the Children,
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Youth and Families Act 2005, the Suitability Panel determines
whether or not the allegation that the person has physically or
sexually abused the child is proved on the balance of
probabilities. After making such a determination, the Suitability
Panel then goes on to consider under section 106 of the
Children, Youth and Families Act 2005 whether the person
poses an unacceptable risk of harm to children. If the Suitability
Panel decides that the person does present such a risk, then the
person is disqualified from registration. It is this disqualification
decision that is intended to be recognised as an exclusion
decision for the purposes of the Social Services Regulation
Act 2021.
Clause 247 repeals section 353(4) of the Social Services Regulation
Act 2021. Section 354(4) updates section 3(1) of the Disability
Act 2006 to reflect a machinery of government change, which
will be made by section 4(1)(b) of the Disability and Social
Services Regulation Amendment Act 2023. This subsection is
therefore redundant and unnecessary.
Clause 248 inserts new section 354A of the Social Services Regulation
Act 2021, which provides for the insertion of a new
paragraph (da) into section 33 of the Disability Act 2006 to
include the Social Services Regulator as a person the Community
Visitors Board can refer a matter reported by a community visitor
to where appropriate. This is to reflect the new responsibilities of
the Social Services Regulator upon commencement of the Social
Services Regulation Act 2021.
Clause 249 repeals section 359 of the Social Services Regulation Act 2021.
Section 359 of that Act amends section 60(2)(f) of the Disability
Act 2006, which is being amended by the Bill. Section 359 of
the Social Services Regulation Act 2021 is therefore redundant
and unnecessary.
Clause 250 inserts new sections 367A and 367B of the Social Services
Regulation Act 2021 to make amendments to sections 132ZL
and 141 of the Disability Act 2006. The amendments will
replace references to the Secretary with references to the Social
Services Regulator, to reflect the transfer of responsibilities from
the Secretary to the Social Services Regulator.
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Under the amended section 132ZL, the Senior Practitioner will
be required to give written notice to the Social Services
Regulator, not the Secretary, if they refuse to approve or revoke
the appointment of an Authorised Program Officer.
Under the amended section 141(c)(i), the Public Advocate will be
permitted to disclose information about the use or proposed use
of a regulated restrictive practice to the Social Services
Regulator, instead of the Secretary.
Division 7--Amendment of Supported Residential Services
(Private Proprietors) Act 2010
Clause 251 amends section 5(1) of the Supported Residential Services
(Private Proprietors) Act 2010 to include accommodation
approved for supervised treatment under section 187 of the
Disability Act 2006.
Division 8--Amendment of Victorian Inspectorate Act 2011
Clause 252 amends the definition of detained person in section 3(1) of the
Victorian Inspectorate Act 2011 to include a person approved
for supervised treatment under section 187 of the Disability
Act 2006 in that definition.
Part 6--Further Amendment of other Acts
Division 1--Residential tenancies
Clause 253 amends the definition of supported accommodation in section
99AAA(1) of the Accident Compensation Act 1985 to refer to
SDA dwellings rather than group homes, to reflect the transition
of group homes to SDA dwellings.
Clause 254 amends the definition of residential service in section 52A of the
Crimes Act 1958 to refer to SDA dwellings rather than SDA
enrolled dwellings, to reflect the intention that the protections for
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements and also to insert a
new paragraph (ac) into that definition that refers to short-term
accommodation dwelling within the meaning of the Disability
Act 2006.
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Clause 255 amends the note at the foot of the definition of school boarding
premises in section 1.1.3(1) of the Education and Training
Reform Act 2006 to substitute a reference for "NDIS dwelling"
with "SDA dwelling" to reflect the changes being introduced by
this Bill and to add a reference to short term accommodation
dwelling within the meaning of the Disability Act 2006.
Clause 256 amends the definition of institution in section 17(7) of the
Guardianship and Administration Act 2019.
Subclause (a) substitutes references to "short-term
accommodation and assistance dwelling" with "short-term
accommodation dwelling" to reflect industry terminology.
Subclause (b) substitutes references to SDA dwellings for
references to SDA enrolled dwellings in the definition of
institution, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 257 amends the definition of detained person in section 3(1) of the
Independent Broad-based Anti-corruption Commission
Act 2011 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Clause 258 amends the Land Tax Act 2005 as a result of the new term
"SDA dwelling" being introduced by the Bill.
Subclause (1) substitutes the definition of SDA enrolled dwelling
in section 3(1) to refer to SDA dwelling instead.
Subclause (2) amends section 56(1A)(b)(iia) of the Land Tax
Act 2005 to refer to SDA dwellings rather than SDA enrolled
dwellings, to reflect the intention that the protections for SDA
enrolled dwellings are now extended to similar accommodation
and support arrangements.
Subclause (3) amends section 76A of the Land Tax Act 2005 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
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Subclause (4) amends section 78A of the Land Tax Act 2005 to
refer to SDA dwellings rather than SDA enrolled dwellings, to
reflect the intention that the protections for SDA enrolled
dwellings are now extended to similar accommodation and
support arrangements.
Clause 259 amends the definition of health facility in section 3(1) of the
Medical Treatment Planning and Decisions Act 2016 to refer
to a short term accommodation dwelling within the meaning of
the Disability Act 2006, and SDA dwellings rather than SDA
enrolled dwellings, to reflect the intention that the protections for
SDA enrolled dwellings are now extended to similar
accommodation and support arrangements.
Clause 260 amends the Social Services Regulation Act 2021.
Subclause (1) repeals section 360 of the Social Service
Regulation Act 2021. This is because section 360 of the Social
Service Regulation Act 2021 repeals section 74(10) of the
Disability Act 2006. Section 74(10) of the Disability Act 2006
is being amended by the Bill thereby making section 360 of the
Social Service Regulation Act 2021 redundant and unnecessary.
Subclause (2) amends section 369(1) of the Social Services
Regulation Act 2021 to make a technical amendment to that Act
to ensure an amendment made by that Act to the Disability
Act 2006 is effective.
Clause 261 amends the definition of supported accommodation in
section 3(1) of the Transport Accident Act 1986 to refer to
SDA dwellings rather than group homes, to reflect the transition
of group homes to SDA dwellings.
Clause 262 amends Schedule 2 to the Victorian Civil and Administrative
Tribunal Act 1998 to omit the phrase "Form and content of a
warrant of possession under section 85B of the Disability
Act 2006". This is because section 85B of the Disability
Act 2006 will be repealed by the Bill.
Clause 263 amends section 3(1) of the Victorian Inspectorate Act 2011 to
refer to SDA dwellings rather than SDA enrolled dwellings in the
definition for detained person, to reflect the intention that the
protections for SDA enrolled dwellings are now extended to
similar accommodation and support arrangements.
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Clause 264 amends the definition of supported accommodation in section
223(1) of the Workplace Injury Rehabilitation and
Compensation Act 2013 to refer to SDA dwellings rather than
group homes, to reflect the transition from group homes to SDA
dwellings.
Division 2--Information sharing
Clause 265 substitutes the reference in item 4 of Schedule 7 to the Child
Wellbeing and Safety Act 2005 from section 39 of the
Disability Act 2006 to sections 202AB and 202AC of the
Disability Act 2006. This is because section 39(2)-(9), which
relate to the use, transfer and disclosure of certain information,
are being repealed by this Bill, and the relevant subject matter
will instead be provided for in new sections 202AB and 202AC.
Clause 266 amends the Social Services Regulation Act 2021.
Subclause (1) substitutes references in section 207(2)(d) of the
Social Services Regulation Act 2021 to sections 39, 39A
and 132ZC of the Disability Act 2006 to sections 132ZC,
202AB, 202AC and 202AD of the Disability Act 2006. This is
because sections 39(2)-(9) and 39A, which relate to the use,
transfer and disclosure of certain information and to the
disclosure of worker screening information respectively, are
being repealed by the Bill, and the relevant subject matter will
instead be provided for in new sections 202AB, 202AC
and 202AD.
Subclause (2) substitutes a new section 355 and inserts a new
section 355A to the Social Services Regulation Act 2021.
New section 355 inserts the Social Services Regulator in section
202AB(4) of the Disability Act 2006, so that the Social Services
Regulator may receive protected information from a relevant
person. This is to reflect the new responsibilities of the Social
Services Regulator upon commencement of the Social Services
Regulation Act 2021.
New section 355A amends the type of information which any
person or body is authorised to use, transfer or disclose under
section 202AC. Prior to the commencement of section 355 of the
Social Services Regulation Act 2021, any person or body is
authorised to use, transfer or disclose information about
compliance by current and former disability service providers
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with the relevant standards determined by the Minister under
section 97 for the purposes of section 202AC. On
commencement of section 355A, the information will be
restricted to information about compliance with the relevant
standards determined under section 97 as in force immediately
before the commencement of Part 4 of the Social Services
Regulation Act 2021.
Subclause (3) substitutes the reference in section 356 of the
Social Services Regulation Act 2021 from section 39A(1)(b) of
the Disability Act 2006 to section 202AD(1)(b) of the Disability
Act 2006. This is because section 39A is being repealed by the
Bill, and the relevant subject matter will instead be provided for
in section new section 202AD.
Clause 267 inserts a new subsection (1A) after section 141(1) of the Worker
Screening Act 2020 to permit the Secretary to make a disclosure
under section 141(1) of matters relating to screening checks and
clearances, either on request by a relevant entity or on the
Secretary's own initiative.
Division 3--Residential treatment facilities
Clause 268 inserts a new section 360A of the Social Services Regulation
Act 2021 which repeals Division 1 of Part 6 of the Disability
Act 2006. Division 1 of Part 6 of the Disability Act 2006
contains one provision--section 89 relating to the obligation of
the disability service provider to provide information on its
services to the person with a disability. This obligation is
proposed to be included in the regulations to be made under the
Social Services Regulation Act 2021 upon the commencement
of that Act.
Part 7--Repeal of this Bill
Clause 269 provides for the automatic repeal of the Act (the Bill) on 30 July
2025. The repeal of the Act does not affect in any way the
continuing operation of the amendments made by the Act
(see section 15(1) of the Interpretation Legislation Act 1984).
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