Minister: Minister for Seniors and Disability Services and Minister for Aboriginal and Torres Strait Islander Partnerships
Agency: Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships


Disability Services Act 2006


Queensland Crest
Disability Services Act 2006

An Act to protect and promote the rights of people with disability, and for other purposes

Long title amd 2020 No. 39 s 70 sch 1

Part 1 Preliminary

Division 1 Introduction

1Short title

This Act may be cited as the Disability Services Act 2006.

2Commencement

This Act commences on a day to be fixed by proclamation.

3Act binds all persons

(1)This Act binds all persons, including the State and, so far as the legislative power of the Parliament permits, the Commonwealth and the other States.
(2)Nothing in this Act makes the Commonwealth or a State liable to be prosecuted for an offence.

4Contravention of this Act does not create civil cause of action

No provision of this Act creates a civil cause of action based on a contravention of the provision.

5Act does not affect other rights or remedies

(1)This Act, other than sections 189, 190, 218, 219, 251 to 253 and 255, does not affect or limit a civil right or remedy that exists apart from this Act, whether at common law or otherwise.
(2)Without limiting subsection (1), compliance with this Act does not necessarily show that a civil obligation that exists apart from this Act has been satisfied or has not been breached.

s 5 amd 2008 No. 23 s 4

Division 2 Objects

6Objects of Act

(1)The objects of this Act are—
(a)to acknowledge the rights of people with disability including by promoting their inclusion in the life of the community generally; and
(b)to ensure that disability services funded by the department are safe, accountable and respond to the needs of people with disability; and
(c)to support the operation of the national disability insurance scheme in Queensland and ensure the quality and safety of NDIS supports or services in the context of the national regulatory framework; and
(d)to safeguard the rights of adults with an intellectual or cognitive disability including by regulating the use of restrictive practices by relevant service providers in relation to those adults—
(i)only where it is necessary to protect a person from harm; and
(ii)with the aim of reducing or eliminating the need for use of the restrictive practices.
(2)In this section—
national regulatory framework means the national regulatory framework for service providers established under the National Disability Insurance Scheme Act 2013 (Cwlth).

s 6 amd 2008 No. 23 s 5; 2012 No. 36 s 4; 2019 No. 19 s 4; 2020 No. 39 ss 4, 70 sch 1

7How objects are mainly achieved

The objects are mainly achieved by—
(a)stating the human rights principle and supporting rights applying to people with disability; and
(b)stating the principles for service delivery to people with disability to be promoted by service providers; and
(c)regulating disability services funded by the department to ensure the quality, safety, responsiveness and accountability of the services; and
(d)regulating particular aspects of the provision of NDIS supports or services by particular NDIS service providers under the National Disability Insurance Scheme Act 2013 (Cwlth) to ensure the quality and safety of the supports or services; and
(e)helping to protect people with disability using services funded by the department from abuse, neglect and exploitation; and
(f)stating the circumstances in which relevant service providers are authorised to use restrictive practices in relation to adults with an intellectual or cognitive disability.

s 7 amd 2008 No. 23 s 6; 2012 No. 36 s 5; 2019 No. 19 s 5; 2020 No. 39 ss 5, 70 sch 1

8Finite resources available

In administering this Act, regard must be had to the following—
(a)the State has finite resources available to provide services to people with disability;
(b)there is a need to distribute the resources fairly having regard to the State’s priorities.

s 8 amd 2020 No. 39 s 70 sch 1

Division 3 Interpretation

9Definitions

The dictionary in schedule 8 defines particular words used in this Act.

10[Repealed]

s 10 om 2020 No. 39 s 70 sch 1

10AReferences to entity include department

In this Act, a reference to an entity includes a reference to a department.

s 10A ins 2019 No. 19 s 6

11What is a disability

(1)A disability is a person’s condition that—
(a)is attributable to—
(i)an intellectual, psychiatric, cognitive, neurological, sensory or physical impairment; or
(ii)a combination of impairments mentioned in subparagraph (i); and
(b)results in—
(i)a substantial reduction of the person’s capacity for communication, social interaction, learning, mobility or self care or management; and
(ii)the person needing support.
(2)For subsection (1), the impairment may result from an acquired brain injury.
(3)The disability must be permanent or likely to be permanent.
(4)The disability may be, but need not be, of a chronic episodic nature.

12What are disability services

(1)
Disability services, for people with disability, means 1 or more of the following—
(a)accommodation support services;
(b)respite services;
(c)community support services;
(d)community access;
(e)advocacy or information services or services that provide alternative forms of communication;
(f)research, training or development services;
(g)another service prescribed by regulation.
(2)However, disability services do not include NDIS supports or services.

s 12 amd 2016 No. 9 s 6; 2020 No. 39 ss 6, 70 sch 1

12AWhat are NDIS supports or services

NDIS supports or services are supports or services provided to a person with disability under the national disability insurance scheme, to the extent that providing the supports or services is funded by the payment of an NDIS amount under the National Disability Insurance Scheme Act 2013 (Cwlth).

s 12A ins 2020 No. 39 s 7

13Meaning of service provider

(1)A service provider is an entity providing supports or services for people with disability.
(2)The service provider may provide the supports or services—
(a)specifically to people with disability; or
(b)generally to people in the community, including people with disability.
(3)The service provider may provide the supports or services with the intention of making a profit.

s 13 amd 2019 No. 19 s 7; 2020 No. 39 ss 8, 70 sch 1

14Meaning of funded service provider

(1)A funded service provider is a service provider, other than the State, receiving recurrent or one-off funds from the department, or another department prescribed by regulation, to provide disability services.
(2)It does not matter whether or not the service provider also uses other funds or resources to provide the disability services.
(3)A funded service provider may be a local government.

s 14 prev s 14 amd 2016 No. 9 s 7

om 2019 No. 19 s 8

pres s 14 ins 2020 No. 39 s 9

15 Meaning of NDIS service provider

(1)A registered NDIS provider and an unregistered NDIS provider are each an NDIS service provider.
(2)A registered NDIS provider is a registered NDIS provider under the National Disability Insurance Scheme Act 2013 (Cwlth).
(3)An unregistered NDIS provider is an entity that delivers NDIS supports or services to people with disability, other than a registered NDIS provider.

s 15 sub 2020 No. 39 s 9

16Meaning of NDIS sole trader and State sole trader

(1)An individual is an NDIS sole trader if the individual—
(a)is an NDIS service provider; and
(b)as an NDIS service provider, personally provides NDIS supports or services to people with disability.
(2)An individual is a State sole trader if the individual—
(a)is a funded service provider; and
(b)as a funded service provider, personally provides disability services to people with disability.

s 16 prev s 16 om 2014 No. 12 s 53

pres s 16 sub 2020 No. 39 s 9

16A[Repealed]

s 16A ins 2016 No. 9 s 8

sub 2019 No. 19 s 9

om 2020 No. 39 s 9

Part 2 Disability rights

Division 1 Human rights principle

17Entities encouraged to have regard to human rights principle

Entities are encouraged to have regard to the human rights principle in matters relating to people with disability.

s 17 amd 2019 No. 19 s 81 sch 1; 2020 No. 39 s 70 sch 1

18Principle that people with disability have the same human rights as others

(1)People with disability have the same human rights as other members of society and should be empowered to exercise their rights.
(2)People with disability have the right to—
(a)respect for their human worth and dignity as individuals; and
(b)realise their individual capacities for physical, social, emotional, cultural, religious and intellectual development; and
(c)live lives free from abuse, neglect or exploitation; and
(d)participate actively in decisions affecting their lives, including the development of disability policies, programs and services; and
(e)recognition of their individual autonomy and independence, including the freedom to exercise choice and have control of their lives.
(3)When using disability services or NDIS supports or services, people with disability have the right to—
(a)supports or services supporting their achieving quality of life in a way that supports their family unit and their full participation in society; and
(b)receive supports or services in a way that results in the minimum restriction of their rights and opportunities; and
(c)receive supports or services in a way that respects the confidentiality of their information; and
(d)receive supports or services in a safe, accessible built environment appropriate to their needs; and
(e)pursue grievances about supports or services without fear of the supports or services being discontinued or recrimination from service providers; and
(f)support to enable them to pursue grievances about supports or services; and
(g)support, and access to information, to enable them to participate in decisions affecting their lives.
(4)People with disability have the right to receive supports or services, and information necessary to support rights, in ways that are appropriate having regard to their disabilities and cultural backgrounds.
(5)Subsections (2), (3) and (4) do not limit subsection (1).

s 18 amd 2012 No. 36 s 6; 2020 No. 39 ss 10, 70 sch 1

Division 2 Service delivery principles

19Service delivery principles to be promoted by service providers

(1)This division sets out the principles that service providers are encouraged to apply and promote in the development and implementation of services for people with disability.
(2)For subsection (1), the application and promotion of the principles is encouraged to the extent they reasonably apply to a service provider.

s 19 amd 2020 No. 39 s 70 sch 1

20Focus on the development of the individual

Services should be designed and implemented so that their focus is on developing the individual and on enhancing the individual’s opportunity to establish a quality life.

21Participation in planning and operation of services

(1)Services should be designed and implemented so that people with disability are encouraged, and able, to participate continually in the planning and operation of the services they receive.
(2)Services provided to people with disability should provide opportunities for consultation in relation to the development of major policy changes.

s 21 amd 2020 No. 39 s 70 sch 1

22Focus on a lifestyle the same as other people and appropriate for age

Services should be designed and implemented to ensure that the conditions of everyday life of people with disability are—
(a)the same as, or as close as possible to, the conditions of everyday life valued by the general community; and
(b)appropriate to their chronological age.

s 22 amd 2020 No. 39 s 70 sch 1

23Coordination and integration of services with general services

Services should be designed and implemented as part of local coordinated service systems and integrated with services generally available to members of the community.

24Services to be tailored to meet individual needs and goals

(1)Services should be tailored to meet the individual needs and goals of people with disability.
(2)To be responsive to the needs and goals of people with disability, innovation and flexibility are encouraged when designing services.

s 24 amd 2020 No. 39 s 70 sch 1

25People with disability experiencing additional barriers

Services should be designed and implemented to meet the needs of people with disability who may experience additional barriers—
(a)because they are Aborigines or Torres Strait Islanders; or
(b)because of their age, gender or culturally or linguistically diverse backgrounds; or
(c)because of their rural or remote location.

s 25 amd 2020 No. 39 s 70 sch 1

26Promotion of competency, positive image and self-esteem

Services should be designed and implemented to—
(a)promote recognition of the competence of people with disability; and
(b)promote a positive image of people with disability; and
(c)enhance the self-esteem of people with disability.

s 26 amd 2020 No. 39 s 70 sch 1

27Inclusion in the community

Services should be designed and implemented to promote the inclusion of people with disability in the life of the community.

s 27 amd 2020 No. 39 s 70 sch 1

28No single service provider to exercise control over life of person with disability

Services should be designed and implemented to ensure that no single service provider exercises control over all or most aspects of the life of a person with disability.

s 28 amd 2020 No. 39 s 70 sch 1

29Consideration for others involved with people with disability

Services should be designed and implemented to—
(a)have sufficient regard to the needs of families, carers and advocates of people with disability; and
(b)recognise the demands on the families of people with disability; and
(c)take into account the implications for, and demands on, the families of people with disability.

s 29 amd 2020 No. 39 s 70 sch 1

30Service providers to make information available

(1)Service providers should make available information that allows the quality of their services to be judged.
(2)The information should be available to the people using the services, their families, carers and advocates, people giving financial assistance for the services and the community generally.

31Raising and resolving grievances

Services should be designed and implemented to ensure that appropriate ways exist for people with disability and their advocates to raise grievances about services and have them resolved.

s 31 amd 2020 No. 39 s 70 sch 1

32Access to advocacy support

Services should be designed and implemented to ensure people with disability have access to necessary independent advocacy support so they can participate adequately in decision-making about the services they receive.

s 32 amd 2020 No. 39 s 70 sch 1

Part 3 Complaints about the delivery of disability services by particular service providers

pt 3 hdg prev pt 3 hdg om 2014 No. 12 s 54

amd 2019 No. 19 s 10

32AApplication of part

(1)This part applies in relation to the following service providers—
(a)the department;
(b)a funded service provider, other than a service provider that is another department;
(c)another service provider prescribed by regulation.
(2)However, this part does not apply in relation to a service provider—
(a)prescribed by regulation; or
(b)to the extent the service provider is providing disability services prescribed by regulation.

s 32A ins 2019 No. 19 s 11

amd 2020 No. 39 s 70 sch 1

33Complaints by consumers

(1)The following may make a complaint to the chief executive about the delivery of disability services by a service provider in relation to which this part applies—
(a)a consumer;
(b)a family member, carer or advocate of a consumer;
(c)another person on behalf of a consumer.
(2)The chief executive must maintain a system that deals effectively with complaints received.

s 33 amd 2014 No. 12 s 55; 2019 No. 19 s 12

34Chief executive may refer matters to complaints agency

The chief executive may—
(a)liaise with a complaints agency about matters relating to people with disability; and
(b)refer matters relating to people with disability to a complaints agency; and
(c)enter into an arrangement with a complaints agency aimed at avoiding inappropriate duplication of activities.

s 34 prev s 34 om 2014 No. 12 s 54

amd 2020 No. 39 s 70 sch 1

35Complaints agency to inform chief executive about actions taken for complaint

(1)This section applies if—
(a)the chief executive refers a matter about a person with disability to a complaints agency; and
(b)the chief executive, by notice to the agency, asks for information about the way in which the agency is dealing or has dealt with the matter.
(2)The agency must inform the chief executive about any action taken for dealing with the matter or, if it is resolved, the resolution of the matter.
(3)Subsection (2) applies despite any express provision in an Act establishing a complaints agency that makes it an offence for anyone involved with administration of the Act to disclose the information.

s 35 prev s 35 om 2014 No. 12 s 54

pres s 35 amd 2020 No. 39 s 70 sch 1

Part 4 Funding to people with disability

pt 4 hdg prev pt 4 hdg om 2014 No. 12 s 54

pres pt 4 hdg ins 2012 No. 36 s 7

amd 2020 No. 39 s 70 sch 1

36Purpose of pt 4

The purpose of this part is to enable people with disability to receive funding to obtain relevant disability services.

s 36 prev s 36 om 2014 No. 12 s 54

pres s 36 ins 2012 No. 36 s 7

amd 2020 No. 39 s 70 sch 1

37Definitions for pt 4

In this part—
individual funding agreement means an individual funding agreement made under this part.
parent, of a child with a disability, includes—
(a)a person who exercises parental responsibility for the child, other than a person standing in the place of a parent of a child on a temporary basis; and
(b)for an Aboriginal child—a person who, under Aboriginal tradition, is regarded as a parent of the child; and
(c)for a Torres Strait Islander child—a person who, under Island custom, is regarded as a parent of the child.
relevant disability services, for a person with disability, means disability services, and care and support associated with the person’s disability, prescribed by regulation.

s 37 def relevant disability services amd 2019 No. 19 s 13; 2020 No. 39 s 70 sch 1

relevant person means—
(a)for an adult with a disability—
(i)a person nominated by the adult to deal with matters under this part on behalf of the adult; or
(ii)a guardian or an administrator for the adult; or
(iii)an attorney appointed by the adult under an enduring power of attorney under the Powers of Attorney Act 1998; or
(iv)a member of the adult’s support network, other than a paid carer for the adult within the meaning of the Guardianship and Administration Act 2000; or
(b)for a child with a disability—a parent of the child.

s 37 prev s 37 om 2014 No. 12 s 54

pres s 37 ins 2012 No. 36 s 7

38Approval for funding

(1)The Minister may approve funding to—
(a)a person with disability, to enable the person to obtain relevant disability services; or
(b)a relevant person for a person with disability, to enable the relevant person to obtain relevant disability services for the person with disability.
(2)If the Minister approves funding to a person mentioned in subsection (1), the funding can not be provided to the person unless the person has entered into an individual funding agreement under section 39 in relation to the funding.

s 38 prev s 38 om 2014 No. 12 s 54

pres s 38 ins 2012 No. 36 s 7

om 2020 No. 39 s 70 sch 1

39Individual funding agreement

(1)If the Minister approves funding to a person under section 38, the person may enter into an individual funding agreement with the chief executive for the funding.
(2)The individual funding agreement must—
(a)include the terms and conditions the chief executive considers appropriate; and
(b)state the relevant disability services to be obtained with the funding.

s 39 prev s 39 om 2014 No. 12 s 54

pres s 39 ins 2012 No. 36 s 7

Part 5 Disability worker screening and related requirements

pt 5 hdg amd 2010 No. 5 s 84

sub 2016 No. 9 s 9

amd 2019 No. 19 s 14

sub 2020 No. 39 s 11

Division 1 Preliminary

pt 5 div 1 hdg sub 2020 No. 39 s 11

Subdivision 1 General

pt 5 div 1 sdiv 1 hdg ins 2020 No. 39 s 11

40Main purposes of part

This part—
(a)establishes a scheme for screening persons, by obtaining and considering their criminal history and other relevant information, to assess whether the persons pose an unacceptable risk of harm to people with disability; and
(b)requires persons who carry out, or propose to carry out, particular work with people with disability to be screened under the scheme before they start carrying out the work; and
(c)prohibits persons from carrying out particular work with people with disability if the chief executive decides they pose an unacceptable risk of harm to the people with disability.

s 40 prev s 40 om 2014 No. 12 s 54

pres s 40 amd 2010 No. 5 s 85; 2016 No. 9 s 10

sub 2020 No. 39 s 11

41Paramount consideration

The paramount consideration in making a decision under this part is the right of people with disability to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation.

s 41 sub 2020 No. 39 s 11

41A[Repealed]

s 41A ins 2019 No. 19 s 15

om 2020 No. 39 s 11

42Part applies despite Criminal Law (Rehabilitation of Offenders) Act 1986

This part applies to a person despite the Criminal Law (Rehabilitation of Offenders) Act 1986.

s 42 ins 2010 No. 5 s 86

amd 2014 No. 28 s 105 sch 1; 2016 No. 9 s 11; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

43Exemption for secondary school student on work experience

(1)This section applies if—
(a)a secondary school student on work experience carries out disability work for a service provider (the work experience provider); and
(b)another provision of this part requires a person who is engaged to carry out the disability work to hold a clearance or interstate NDIS clearance.
(2)Despite the other provision, the student is not required to hold the clearance or interstate NDIS clearance to carry out the disability work.
(3)The work experience provider does not commit an offence against the other provision in relation to the student carrying out the disability work if the student carries out the work under the direct supervision of—
(a)for NDIS disability work—a person who holds an NDIS clearance or interstate NDIS clearance; or
(b)for State disability work—a person who holds a clearance.

s 43 ins 2010 No. 5 s 86

sub 2020 No. 39 s 11

Subdivision 2 Interpretation

pt 5 div 1 sdiv 2 hdg ins 2020 No. 39 s 11

44When a person is engaged to carry out work for entity

(1)A person is engaged to carry out work for an entity if—
(a)the person has an agreement with the entity to carry out the work as an employee or volunteer of the entity; or
(b)the person carries out the work under a contract for services between—
(i)the entity and the person; or
(ii)the entity and another person.
(2)For this section, it does not matter—
(a)whether the agreement or contract is written or unwritten; or
(b)whether the work is carried out voluntarily or for financial reward; or
(c)how long the person is engaged to carry out the work; or
(d)whether the agreement or contract provides for the person to carry out work on 1 occasion or an ongoing basis, whether regularly or irregularly.
(3)Also, for this section, the nature of the work does not matter.

Note—

See also sections 46, 48 and 49.

s 44 prev s 44 om 2014 No. 12 s 56

pres s 44 sub 2020 No. 39 s 11

44A[Repealed]

s 44A ins 2018 No. 19 s 4

amd 2019 No. 19 s 16

om 2020 No. 39 s 11

45Meaning of NDIS disability work and risk-assessed NDIS work

(1)NDIS disability work is work that includes the delivery of NDIS supports or services to a person with disability.
(2)Risk-assessed NDIS work is NDIS disability work carried out in a role for which the normal duties—
(a)include the direct delivery of specified NDIS supports or services to a person with disability; or
(b)are likely to require more than incidental contact with a person with disability.
(3)For subsection (2)(b), the normal duties of a person’s role are likely to require more than incidental contact with a person with disability if the duties include—
(a)physically touching a person with disability; or
(b)building a rapport with a person with disability as an integral and ordinary part of the performance of the duties; or
(c)duties that, under the NDIS (Worker Screening) Practice Standards, are defined to be, or otherwise described as, duties that require more than incidental contact with a person with disability.
(4)In this section—
contact includes—
(a)physical contact; and
(b)face-to-face contact; and
(c)oral, written and electronic communication.
rapport means a relationship or understanding that is more than merely polite and functional.
specified NDIS supports or services means NDIS supports or services that, under the NDIS (Worker Screening) Practice Standards, are—
(a)specified supports or specified services; or
(b)identified as supports or services that, if delivered directly to a person with disability, must be delivered by a person who holds an NDIS clearance or interstate NDIS clearance.

s 45 prev s 45 om 2014 No. 12 s 56

pres s 45 ins 2010 No. 5 s 87

sub 2020 No. 39 s 11

46Key personnel of NDIS service provider taken to be engaged in risk-assessed NDIS work

(1)A person is taken to be engaged to carry out risk-assessed NDIS work for an NDIS service provider if the person is key personnel of the service provider.
(2)In this section—
key personnel see the National Disability Insurance Scheme Act 2013 (Cwlth), section 11A.

s 46 prev s 46 amd 2010 No. 5 s 88

om 2014 No. 12 s 56

pres s 46 amd 2016 No. 9 s 12; 2018 No. 19 s 5; 2019 No. 19 s 17

sub 2020 No. 39 s 11

47Meaning of State disability work

(1)State disability work is work that includes providing disability services that is carried out for the department or a funded service provider.
(2)State disability work does not include work carried out at a place where a funded service provider provides disability services that is carried out—
(a)by a consumer of the service provider; or
(b)by a tradesperson who—
(i)performs work at the place from time to time; and
(ii)is not an employee of the service provider; or
(c)by a volunteer who—
(i)is a relative of a person who receives disability services at the place; and
(ii)is at the place only to help with the care of the person.

s 47 prev s 47 om 2014 No. 12 s 56

pres s 47 amd 2010 No. 5 s 89; 2014 No. 34 s 35 sch 1 ; 2017 No. 14 s 50 sch 1

sub 2020 No. 39 s 11

48When person is engaged to carry out State disability work

(1)A person is engaged to carry out State disability work for the department if the person—
(a)is engaged to carry out the work at a place at which the department provides disability services; or
(b)is a public service employee employed at a place mentioned in paragraph (a); or
(c)is a member of a committee established under section 222(a).
(2)A person is engaged to carry out State disability work for a funded service provider if the person is engaged to carry out the work at a place at which the service provider provides disability services.
(3)A person is not engaged to carry out State disability work for the department or a funded service provider if the person is engaged to carry out the work, and carries out the work, for not more than 7 days in a calendar year.
(4)This section does not limit section 44.

s 48 prev s 48 om 2014 No. 12 s 56

pres s 48 sub 2010 No. 5 s 91; 2020 No. 39 s 11

49Particular members or officers taken to be engaged in State disability work for funded service provider

A person is taken to be engaged to carry out State disability work for a funded service provider if—
(a)the person is a member of a board, management committee or other governing body of the service provider; or
(b)if the service provider is a corporation—the person is an executive officer of the service provider.

s 49 prev s 49 om 2014 No. 12 s 56

pres s 49 amd 2013 No. 51 s 26; 2016 No. 9 s 13; 2019 No. 19 s 81 sch 1

sub 2020 No. 39 s 11

50Meaning of clearance and types of clearances

(1)A clearance is a declaration, issued by the chief executive to a person, that—
(a)screening of the person has been conducted under this part; and
(b)the person is permitted to carry out disability work.
(2)An NDIS clearance is a clearance issued to a person who made an NDIS worker screening application.
(3)An interstate NDIS clearance is a declaration, however called, issued under a corresponding law that corresponds to an NDIS clearance.
(4)A State clearance is a clearance issued to a person who made a State disability worker screening application.

s 50 prev s 50 om 2014 No. 12 s 56

pres s 50 ins 2010 No. 5 s 92

amd 2014 No. 28 s 105 sch 1

(7)–(9) exp 1 July 2010 (see s 82A(8))

amd 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

51Meaning of exclusion and types of exclusions

(1)An exclusion is a declaration, issued by the chief executive to a person, that—
(a)screening of the person has been conducted under this part; and
(b)the person is excluded from carrying out disability work.
(2)An NDIS exclusion is an exclusion issued to a person who made an NDIS worker screening application.
(3)An interstate NDIS exclusion is a declaration, however called, issued under a corresponding law that corresponds to an NDIS exclusion.
(4)A State exclusion is an exclusion issued to a person who made a State disability worker screening application.

s 51 prev s 51 om 2014 No. 12 s 56

pres s 51 ins 2010 No. 5 s 93

amd 2014 No. 28 s 105 sch 1; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

52Meaning of notifiable person

(1)Each of the following is a notifiable person for a person—
(a)if the chief executive is aware that an NDIS service provider engages, or proposes to engage, the person to carry out NDIS disability work—the NDIS service provider;
(b)if the chief executive is aware that a funded service provider engages, or proposes to engage, the person to carry out State disability work—the funded service provider;
(c)another entity prescribed by regulation to be a notifiable person for the person.
(2)Subsection (3) applies for a person if—
(a)the person delivers NDIS supports or services to an NDIS participant as—
(i)an NDIS sole trader; or
(ii)a person engaged by an NDIS service provider to deliver the supports or services; and
(b)the Agency is not wholly managing the funding for supports under the NDIS participant’s plan; and
(c)the chief executive is notified, or otherwise becomes aware, that the person is delivering the NDIS supports or services to the NDIS participant.
(3)Each of the following is also a notifiable person for the person—
(a)the NDIS participant;
(b)another person recognised by the chief executive as a person with the authority or responsibility to act for the NDIS participant in relation to the participant’s plan, other than the Agency.
(4)In this section—
Agency see the National Disability Insurance Scheme Act 2013 (Cwlth), section 9.
managing the funding for supports, under an NDIS participant’s plan, see the National Disability Insurance Scheme Act 2013 (Cwlth), section 42.
NDIS participant means a person who is a participant in the national disability insurance scheme under the National Disability Insurance Scheme Act 2013 (Cwlth).
plan, for an NDIS participant, means the NDIS participant’s plan under the national disability insurance scheme.

s 52 prev s 52 om 2014 No. 12 s 56

pres s 52 amd 2010 No. 5 s 94; 2016 No. 9 s 15; 2016 No. 63 s 1157 sch 6; 2018 No. 19 s 6; 2019 No. 19 s 81 sch 1

sub 2020 No. 39 s 11

Division 2 Requirements related to persons carrying out disability work

pt 5 div 2 hdg sub 2020 No. 39 s 11

Subdivision 1 NDIS disability work

pt 5 div 2 sdiv 1 hdg ins 2020 No. 39 s 11

53Registered NDIS provider engaging person to carry out risk-assessed NDIS work

(1)A registered NDIS provider must not engage, or continue to engage, a person to carry out risk-assessed NDIS work unless the person holds an NDIS clearance or interstate NDIS clearance.

Maximum penalty—

(a)if an aggravating circumstance applies to the offence—200 penalty units or 2 years imprisonment; or
(b)otherwise—100 penalty units.

(2)It is an aggravating circumstance for an offence against subsection (1) if the registered NDIS provider has been given notice that—
(a)the person’s NDIS clearance was cancelled on the person’s request under division 6; or
(b)the person’s interstate NDIS clearance was cancelled on the person’s request under a corresponding law.
(3)A registered NDIS provider does not commit an offence against subsection (1) if—
(a)the person (a subcontractor) is engaged to carry out the risk-assessed NDIS work under a contract for services between the provider and another person; and
(b)the provider has complied with the NDIS (Worker Screening) Practice Standards in relation to the subcontractor being engaged to carry out the risk-assessed NDIS work for the provider.

s 53 prev s 53 om 2014 No. 12 s 56

pres s 53 amd 2010 No. 5 s 95

sub 2020 No. 39 s 11

54Carrying out risk-assessed NDIS work without NDIS clearance or interstate NDIS clearance prohibited

(1)A person must not start, or continue, an engagement to carry out risk-assessed NDIS work for a registered NDIS provider unless the person holds an NDIS clearance or interstate NDIS clearance.

Maximum penalty—

(a)if an aggravating circumstance applies to the offence—500 penalty units or 5 years imprisonment; or
(b)otherwise—100 penalty units.

(2)A person who is a registered NDIS provider must not carry out risk-assessed NDIS work as an NDIS sole trader unless the person holds an NDIS clearance or interstate NDIS clearance.

Maximum penalty—500 penalty units or 5 years imprisonment.

(3)It is an aggravating circumstance for an offence against subsection (1) if the person—
(a)held an NDIS clearance that was cancelled on the person’s request under division 6; or
(b)held an interstate NDIS clearance that was cancelled on the person’s request under a corresponding law; or
(c)is a disqualified person; or
(d)holds a negative notice under the Working with Children Act; or
(e)is subject to—
(i)offender reporting obligations; or
(ii)an offender prohibition order; or
(iii)an offender prohibition disqualification order; or
(iv)a sexual offender order; or
(f)is the respondent to an application for an offender prohibition order.

s 54 prev s 54 om 2014 No. 12 s 56

pres s 54 amd 2010 No. 5 s 96

sub 2020 No. 39 s 11

55Engaging person with NDIS exclusion or interstate NDIS exclusion prohibited

An NDIS service provider must not engage, or continue to engage, a person to carry out NDIS disability work if—
(a)the person holds an NDIS exclusion or an interstate NDIS exclusion; and
(b)the service provider knows, or ought reasonably to know, the person holds an NDIS exclusion or interstate NDIS exclusion.

Maximum penalty—200 penalty units or 2 years imprisonment.

s 55 prev s 55 om 2014 No. 12 s 56

pres s 55 amd 2010 No. 5 s 97

sub 2020 No. 39 s 11

56Engaging person with suspended NDIS clearance or interstate NDIS clearance, or subject to interim bar, prohibited

(1)This section applies if—
(a)a person—
(i)holds an NDIS clearance that is suspended under division 6; or
(ii)holds an interstate NDIS clearance that is suspended under a corresponding law; or
(iii)is subject to an interim bar; and
(b)an NDIS service provider knows, or ought reasonably to know, the person’s NDIS clearance or interstate NDIS clearance is suspended or the interim bar is in effect for the person.
(2)The NDIS service provider must not—
(a)if the person is engaged by the service provider under an existing arrangement to carry out NDIS disability work for the service provider—allow the person to carry out work that is NDIS disability work; or
(b)otherwise—start to engage the person to carry out NDIS disability work.

Maximum penalty—200 penalty units or 2 years imprisonment.

Note—

See sections 84(3) and 113(3) for the restrictions on terminating a person’s employment solely or mainly because the person’s clearance is suspended or an interim bar is in effect for the person.

s 56 prev s 56 om 2014 No. 12 s 56

pres s 56 amd 2009 No. 24 s 51; 2010 No. 5 s 98; 2016 No. 9 s 16; 2018 No. 19 s 7; 2019 No. 19 s 81 sch 1

sub 2020 No. 39 s 11

57Holder of NDIS exclusion or interstate NDIS exclusion prohibited from carrying out NDIS disability work

A person who holds an NDIS exclusion or an interstate NDIS exclusion must not—
(a)start, or continue, an engagement to carry out NDIS disability work for an NDIS service provider; or
(b)carry out NDIS disability work as an NDIS sole trader.

Maximum penalty—500 penalty units or 5 years imprisonment.

s 57 prev s 57 amd 2013 No. 51 s 25

om 2014 No. 12 s 56

pres s 57 amd 2010 No. 5 s 99

sub 2020 No. 39 s 11

Subdivision 2 State disability work

pt 5 div 2 sdiv 2 hdg ins 2020 No. 39 s 11

58Funded service provider must prepare annual risk management strategy

(1)Each year, a funded service provider that engages 1 or more persons to carry out State disability work must develop and implement a written strategy (a risk management strategy) that complies with this section.

Maximum penalty—20 penalty units.

(2)A risk management strategy must include practices and procedures for engaging persons who carry out State disability work for the funded service provider in ways that—
(a)promote the wellbeing of people with disability; and
(b)protect people with disability from abuse, violence, neglect or exploitation.
(3)A regulation may prescribe other matters that must be included in a risk management strategy.

s 58 prev s 58 om 2014 No. 12 s 56

pres s 58 amd 2010 No. 5 s 100

sub 2020 No. 39 s 11

59Funded service provider engaging person to carry out State disability work

(1)A funded service provider must not engage, or continue to engage, a person to carry out State disability work unless—
(a)the person holds a clearance; and
(b)the service provider has given the chief executive a notice, under subsections (3) and (4), about engaging the person to carry out State disability work.

Maximum penalty—

(a)if an aggravating circumstance applies to the offence—200 penalty units or 2 years imprisonment; or
(b)otherwise—100 penalty units.

(2)It is an aggravating circumstance for an offence against subsection (1) if—
(a)the person holds an exclusion and the funded service provider knows, or ought reasonably to know, the person holds the exclusion; or
(b)the funded service provider is given notice that the person’s clearance was cancelled on the person’s request under division 6.
(3)Before giving a notice mentioned in subsection (1)(b), the funded service provider must take reasonable steps to verify the person’s identity.

Examples of reasonable steps—

viewing the person’s clearance or driver licence that includes the person’s photograph
(4)A notice mentioned in subsection (1)(b) must be given in the approved form and in an approved way.

s 59 prev s 59 amd 2010 No. 5 s 82

om 2014 No. 12 s 56

pres s 59 ins 2010 No. 5 s 101

amd 2014 No. 28 s 105 sch 1; 2016 No. 9 s 18; 2018 No. 19 s 8; 2019 No. 19 s 81 sch 1; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

60Engaging person with suspended clearance, or subject to interim bar, prohibited

(1)This section applies if—
(a)a person—
(i)holds a clearance that is suspended; or
(ii)is subject to an interim bar; and
(b)a funded service provider knows, or ought reasonably to know, the person’s clearance is suspended or the interim bar is in effect for the person.
(2)The funded service provider must not—
(a)if the person is engaged by the service provider under an existing arrangement to carry out State disability work for the service provider—allow the person to carry out work that is State disability work; or
(b)otherwise—start to engage the person to carry out State disability work.

Maximum penalty—200 penalty units or 2 years imprisonment.

Note—

See sections 84(3) and 113(3) for the restrictions on terminating a person’s employment solely or mainly because the person’s clearance is suspended or an interim bar is in effect for the person.

s 60 prev s 60 om 2014 No. 12 s 56

pres s 60 ins 2010 No. 5 s 101

sub 2020 No. 39 s 11

61Carrying out State disability work without clearance prohibited

(1)A person must not start, or continue, an engagement to carry out State disability work for the department or a funded service provider unless the person holds a clearance.

Maximum penalty—

(a)if an aggravating circumstance applies to the offence—500 penalty units or 5 years imprisonment; or
(b)otherwise—100 penalty units.

(2)A person must not carry out State disability work as a State sole trader unless the person holds a clearance.

Maximum penalty—500 penalty units or 5 years imprisonment.

(3)It is an aggravating circumstance for an offence against subsection (1) if the person—
(a)holds an exclusion; or
(b)held a clearance that was cancelled on the person’s request under division 6; or
(c)is a disqualified person; or
(d)holds a negative notice under the Working with Children Act; or
(e)is subject to—
(i)offender reporting obligations; or
(ii)an offender prohibition order; or
(iii)an offender prohibition disqualification order; or
(iv)a sexual offender order; or
(f)is the respondent to an application for an offender prohibition order.

s 61 prev s 61 om 2010 No. 5 s 83

pres s 61 ins 2010 No. 5 s 101

amd 2014 No. 28 s 105 sch 1; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

Subdivision 3 General

pt 5 div 2 sdiv 3 hdg ins 2020 No. 39 s 11

62No contravention of particular requirements in absence of notice

(1)This section applies in relation to—
(a)a provision of this division about a person carrying out disability work; and
(b)a person who—
(i)held a clearance that was cancelled under division 6; or
(ii)held an interstate NDIS clearance that was cancelled under a corresponding law; or
(iii)holds an exclusion issued to the person after the person’s clearance was cancelled under division 6; or
(iv)holds an interstate NDIS exclusion issued to the person after the person’s interstate NDIS clearance was cancelled under a corresponding law.
(2)A court may not find that the person contravened the provision unless the person was given notice about the cancellation of the clearance or interstate NDIS clearance held by the person or the issue of the exclusion or interstate NDIS exclusion to the person.

s 62 prev s 62 om 2010 No. 5 s 83

pres s 62 ins 2010 No. 5 s 101

amd 2014 No. 28 s 105 sch 1; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

63Complying with requirement to end, or not start, person’s engagement

(1)This section applies if it would be an offence against a provision of this part for an NDIS service provider or funded service provider to engage, or continue to engage, a person (the engaged person) to carry out disability work.
(2)The NDIS service provider or funded service provider must comply with the provision despite another Act or law or any industrial award or agreement.
(3)The NDIS service provider or funded service provider does not incur any liability because, in complying with the provision, the service provider does not engage, or continue to engage, the engaged person to carry out disability work.
(4)A person whose clearance is suspended under division 6, or whose interstate NDIS clearance is suspended under a corresponding law, may be engaged by the NDIS service provider or funded service provider other than to carry out disability work until the suspension ends.

s 63 prev s 63 om 2010 No. 5 s 83

pres s 63 ins 2010 No. 5 s 101

amd 2016 No. 9 s 19; 2018 No. 19 s 9; 2019 No. 19 s 81 sch 1

sub 2020 No. 39 s 11

Division 3 Disability worker screening applications

pt 5 div 3 hdg sub 2020 No. 39 s 11

Subdivision 1 Prohibited disability worker screening applications

pt 5 div 3 sdiv 1 hdg ins 2020 No. 39 s 11

64Application by exclusion holder prohibited

(1)A person who holds an exclusion or an interstate NDIS exclusion must not make a disability worker screening application.

Maximum penalty—500 penalty units or 5 years imprisonment.

(2)An application made in contravention of subsection (1) has no effect.

s 64 prev s 64 om 2010 No. 5 s 83

pres s 64 ins 2010 No. 5 s 101

amd 2014 No. 28 s 105 sch 1; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

Subdivision 2 Applications generally

pt 5 div 3 sdiv 2 hdg ins 2020 No. 39 s 11

65Application related to NDIS disability work

A person may apply to the chief executive for a clearance if the person—
(a)is, or proposes to be—
(i)engaged by an NDIS service provider to carry out NDIS disability work; or
(ii)an NDIS sole trader; or
(iii)engaged by an entity prescribed by regulation for this section; and
(b)complies with each other criterion prescribed by regulation for this section.

s 65 prev s 65 om 2010 No. 5 s 83

pres s 65 sub 2010 No. 5 s 103

amd 2010 No. 5 s 104; 2016 No. 9 s 21; 2018 No. 19 s 10; 2019 No. 19 s 17A

sub 2020 No. 39 s 11

66Application related to State disability work

A person may apply to the chief executive for a clearance if the person is, or proposes to be—
(a)engaged by the department or a funded service provider to carry out State disability work; or
(b)a State sole trader; or
(c)engaged by an entity prescribed by regulation for this section.

s 66 prev s 66 om 2010 No. 5 s 83

pres s 66 ins 2010 No. 5 s 103

amd 2010 No. 5 s 105; 2016 No. 9 s 22; 2018 No. 19 s 11; 2019 No. 19 s 17B

sub 2020 No. 39 s 11

67 Application combined with working with children check application

(1)A person may combine an application under section 65 or 66 with a working with children check application.
(2)An application made under subsection (1) is a combined application.
(3)This part applies to a combined application to the extent it is an application under section 65 or 66.
(4)If a combined application is made to the chief executive, the chief executive must give the information in the combined application, to the extent the information relates to the person’s working with children check application, to the chief executive (working with children).

s 67 prev s 67 om 2010 No. 5 s 83

pres s 67 ins 2010 No. 5 s 103

amd 2010 No. 5 s 106; 2016 No. 9 s 23; 2018 No. 19 s 12; 2019 No. 19 s 17C

sub 2020 No. 39 s 11

67A[Repealed]

s 67A ins 2018 No. 19 s 13

amd 2019 No. 18 s 86(2) sch 2

om 2020 No. 39 s 11

67B[Repealed]

s 67B ins 2018 No. 19 s 13

om 2020 No. 39 s 11

68Form of application

(1)A disability worker screening application must be—
(a)made in the approved form and in an approved way; and
(b)signed by the applicant; and
(c)accompanied by the fee prescribed by regulation for the application.
(2)The approved form must provide for the applicant—
(a)to provide proof of the applicant’s identity; and
(b)to consent to being screened under this part; and
(c)if the applicant is engaged, or proposes to be engaged, to carry out disability work—to provide information about the entity that has engaged, or proposes to engage, the applicant to carry out the disability work.

s 68 prev s 68 om 2010 No. 5 s 83

pres s 68 ins 2010 No. 5 s 103

sub 2010 No. 5 s 107

amd 2014 No. 28 s 105 sch 1; 2016 No. 9 s 24; 2018 No. 19 s 14; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

69Chief executive may request further information

(1)After receiving a disability worker screening application, the chief executive may give the applicant a notice asking the applicant to give the chief executive, within a reasonable stated time—
(a)stated information the chief executive reasonably needs to establish the applicant’s identity; or
(b)stated information, including by way of a submission, about a stated matter that the chief executive reasonably believes is relevant to the application.
(2)A request under subsection (1) must state that, if the applicant does not comply with the request within the stated time, the application may be withdrawn.

s 69 prev s 69 om 2010 No. 5 s 83

pres s 69 ins 2010 No. 5 s 107

amd 2016 No. 9 s 25

sub 2020 No. 39 s 11

69A[Repealed]

s 69A ins 2019 No. 19 s 17D

om 2020 No. 39 s 11

70 Applicant must give notice of change in information

(1)This section applies if, before the chief executive decides a disability worker screening application—
(a)the applicant’s name or contact details as stated in the application change; or
(b)if the application states information about the applicant’s engagement with an NDIS service provider or funded service provider—the stated information changes; or
(c)another matter, prescribed by regulation for this section, changes in relation to the applicant.
(2)The applicant must give the chief executive a notice about the change, in the approved form and in an approved way, within 7 days after the change happens.

Maximum penalty—10 penalty units.

s 70 prev s 70 om 2010 No. 5 s 83

pres s 70 amd 2010 No. 5 s 108; 2016 No. 9 s 26; 2018 No. 19 s 15; 2019 No. 19 s 17E

sub 2020 No. 39 s 11

71Notice of change in police information or risk assessment matter

(1)This section applies if, before the chief executive decides a disability worker screening application, the applicant becomes aware that—
(a)the police information about the applicant changes; or
(b)a risk assessment matter relating to the applicant changes.
(2)The applicant must immediately give the chief executive a notice about the change, in the approved form and in an approved way.

Maximum penalty—100 penalty units.

(3)For subsection (1)(a), the police information about a person changes if a criminal history event happens in relation to the person.

s 71 prev s 71 om 2010 No. 5 s 83

pres s 71 sub 2010 No. 5 s 109; 2020 No. 39 s 11

72Expired clearance continues in force pending decision

(1)This section applies if an applicant holds a clearance that, but for this section, would end under section 101(2).
(2)The clearance remains in force—
(a)from when the clearance would have ended under section 101(2); and
(b)until—
(i)the applicant’s disability worker screening application is decided or withdrawn; or
(ii)the applicant stops being a person who may apply for a clearance under section 65 or 66.

s 72 prev s 72 om 2010 No. 5 s 83

pres s 72 ins 2010 No. 5 s 109

sub 2020 No. 39 s 11

73Holder of expired interstate NDIS clearance taken to hold NDIS clearance pending decision

(1)This section applies if an applicant holds an interstate NDIS clearance that ends under a corresponding law because the term of the clearance has ended.
(2)The applicant is taken to hold an NDIS clearance—
(a)from the end of the term of the interstate NDIS clearance under the corresponding law; and
(b)until—
(i)the applicant’s disability worker screening application is decided or withdrawn; or
(ii)the applicant stops being a person who may apply for a clearance under section 65; or
(iii)an interim bar is imposed on the applicant.

s 73 prev s 73 om 2010 No. 5 s 83

pres s 73 sub 2010 No. 5 s 111; 2020 No. 39 s 11

Subdivision 3 Withdrawal of application

pt 5 div 3 sdiv 3 hdg ins 2020 No. 39 s 11

74Notice of withdrawal

(1)If the chief executive withdraws a disability worker screening application under this subdivision before it is decided, the chief executive must give the applicant a notice that states—
(a)the application is withdrawn; and
(b)the reason for the withdrawal.
(2)The chief executive must also give a notice mentioned in subsection (1) to each notifiable person for the applicant.

s 74 prev s 74 om 2010 No. 5 s 83

pres s 74 sub 2010 No. 5 s 112; 2020 No. 39 s 11

75Withdrawal by applicant

(1)The applicant may ask the chief executive to withdraw the applicant’s disability worker screening application at any time before it is decided.
(2)The request may be made orally or in writing.
(3)The chief executive must withdraw the application unless the chief executive refuses to withdraw the application under section 76.

s 75 amd 2010 No. 5 s 113; 2013 No. 51 s 27; 2016 No. 9 s 27; 2018 No. 19 s 16

sub 2020 No. 39 s 11

76Refusal to withdraw by chief executive

(1)The chief executive may refuse to withdraw an applicant’s disability worker screening application if—
(a)an interim bar is in effect for the applicant; or
(b)an interstate NDIS clearance held by the applicant is suspended under a corresponding law; or
(c)the applicant was previously issued an exclusion or an interstate NDIS exclusion; or
(d)the chief executive, in relation to deciding the application—
(i)has given, or is proposing to give, the applicant a show cause notice under section 95; or
(ii)reasonably suspects a risk assessment of the applicant will demonstrate that the applicant poses an unacceptable risk of harm to people with disability.
(2)If the chief executive refuses to withdraw the application, the chief executive must give the applicant a notice that states the reasons for the refusal.

s 76 ins 2010 No. 5 s 114

amd 2010 No. 5 s 115

sub 2020 No. 39 s 11

77Request to withdraw combined application

(1)This section applies if the applicant made a combined application.
(2)The applicant may combine a request to withdraw the applicant’s disability worker screening application under section 75 with a notice withdrawing the applicant’s working with children check application.
(3)A request made under subsection (2) is a combined withdrawal request.

Note—

The request may be made orally or in writing. See—
(a)section 75(2); and
(b)the Working with Children Act, section 196(3).
(4)This subdivision applies to a combined withdrawal request to the extent it is a request under section 75.
(5)If a combined withdrawal request is made to the chief executive, the chief executive must give a notice about the combined withdrawal request to the chief executive (working with children).

s 77 amd 2010 No. 5 s 116; 2013 No. 51 s 28; 2016 No. 9 s 28; 2018 No. 19 s 17; 2019 No. 19 s 81 sch 1

sub 2020 No. 39 s 11

78Withdrawal because identity can not be established

The chief executive must withdraw a disability worker screening application if—
(a)the chief executive gives the applicant a notice under section 69(1)(a); and
(b)the notice includes the warning mentioned in section 69(2); and
(c)the chief executive can not establish the applicant’s identity with certainty.

s 78 amd 2016 No. 9 s 29; 2019 No. 19 s 81 sch 1

sub 2020 No. 39 s 11

79Withdrawal because of failure to comply with particular requests

The chief executive may withdraw a disability worker screening application if—
(a)the chief executive gives the applicant—
(i)a notice under section 69(1)(b) asking the applicant to provide stated information; or
(ii)a notice under section 138U or 138X asking the applicant to give the consent, or take the other action, stated in the notice; and
(b)the notice includes a warning that, if the applicant does not comply with the notice, the application may be withdrawn; and
(c)the applicant does not comply with the notice.

s 79 sub 2020 No. 39 s 11

80Withdrawal of NDIS worker screening application in particular circumstances

The chief executive must withdraw an NDIS worker screening application if the chief executive is satisfied—
(a)that, before the application was made, the applicant applied for an interstate NDIS clearance under a corresponding law and that application has not been decided or withdrawn; or
(b)since the application was made, the applicant has been issued an interstate NDIS exclusion.

s 80 prev s 80 om 2010 No. 5 s 90

pres s 80 sub 2010 No. 5 s 117; 2020 No. 39 s 11

Subdivision 4 Interim bar for particular applicants

pt 5 div 3 sdiv 4 hdg ins 2020 No. 39 s 11

81Application of subdivision

(1)This subdivision applies if any of the following happens in relation to an applicant—
(a)the applicant—
(i)is charged with a disqualifying offence that has not been dealt with; and
(ii)was an adult when the offence is alleged to have been committed;
(b)the applicant becomes the subject of a banning order made for a reason that, in the chief executive’s opinion, is relevant to whether the applicant poses a risk of harm to people with disability;
(c)the chief executive, in deciding the applicant’s application, reasonably suspects a risk assessment of the applicant will demonstrate that the applicant poses an unacceptable risk of harm to people with disability.
(2)However, this subdivision does not apply in relation to an applicant who holds a clearance that is suspended under division 6.

Note—

See sections 56, 60 and 113 in relation to the effect of the suspension of a person’s clearance.

s 81 ins 2010 No. 5 s 117

sub 2020 No. 39 s 11

82Chief executive must impose interim bar on applicant

(1)The chief executive must impose an interim bar on the applicant.
(2)The chief executive imposes an interim bar by giving the applicant a notice that states—
(a)the interim bar is imposed on the applicant; and
(b)the reason for imposing the interim bar; and
(c)the effect of the interim bar.

s 82 amd 2010 No. 5 s 119

sub 2020 No. 39 s 11

83Notifiable persons and potential employers notified about interim bar

(1)The chief executive must give each notifiable person for the applicant a notice that states—
(a)the applicant has made a disability worker screening application that has not been decided; and
(b)an interim bar has been imposed on the applicant; and
(c)the effect of the interim bar; and
(d)an employer of the applicant who is given notice about the interim bar under this section must not terminate the applicant’s employment solely or mainly because the interim bar is in effect for the person.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.
(2)Also, the chief executive may give a notice mentioned in subsection (1) to a potential employer of the applicant.

s 83 amd 2010 No. 5 s 120; 2016 No. 9 s 30; 2018 No. 19 s 18

sub 2020 No. 39 s 11

84Effect of interim bar

(1)This section applies if the chief executive imposes an interim bar on an applicant under section 82.
(2)While the interim bar is in effect, the applicant must not—
(a)start an engagement to carry out disability work; or
(b)if, when the interim bar is imposed, the applicant is engaged to carry out disability work for an NDIS service provider, funded service provider or the department—carry out work for the service provider or department that is disability work; or
(c)carry out disability work as an NDIS sole trader or State sole trader.

Maximum penalty—500 penalty units or 5 years imprisonment.

(3)An employer of the applicant who is given notice about the interim bar under section 83 must not terminate the applicant’s employment solely or mainly because the interim bar is in effect for the applicant.

Notes—

1See also sections 56 and 60 in relation to NDIS service providers or funded service providers allowing the applicant to carry out disability work.
2See section 138ZZB in relation to notices under section 83 if the NDIS commission communicates the relevant information to the notifiable person.

s 84 ins 2010 No. 5 s 121

amd 2016 No. 9 s 31; 2018 No. 19 s 19

sub 2020 No. 39 s 11

85When interim bar ends

(1)An interim bar imposed on an applicant ends if—
(a)the applicant’s disability worker screening application is—
(i)decided under division 4; or
(ii)withdrawn under subdivision 3; or
(b)the chief executive decides to end the interim bar under subsection (2).
(2)The chief executive may decide to end an interim bar if the chief executive reasonably suspects that a risk assessment of the applicant will demonstrate that the applicant does not pose an unacceptable risk of harm to people with disability.
(3)If an interim bar has been imposed on the applicant for at least 6 months, the applicant may apply to the chief executive to end the interim bar.
(4)The application must be made in the approved form and in an approved way.
(5)The chief executive is not required to decide the applicant’s application to end the interim bar if—
(a)a charge for an offence against the person has not been dealt with; or
(b)the chief executive is aware that an incident involving the person, or an allegation or complaint about the person’s conduct, that is relevant to whether the person poses a risk of harm to people with disability is being investigated and the investigation has not ended.
(6)The chief executive may decide the applicant’s application to end the interim bar—
(a)by deciding to end the interim bar under subsection (2); or
(b)if the applicant has asked the chief executive to withdraw the applicant’s disability worker screening application under section 75—by withdrawing the application; or
(c)by refusing to end the interim bar.
(7)If the chief executive decides to refuse to end the interim bar, the chief executive must give the applicant a notice that states—
(a)the decision and the reasons for the decision; and
(b)the relevant review and appeal information.

s 85 amd 2009 No. 24 s 52; s 122; 2016 No. 9 s 32; 2018 No. 19 s 20

sub 2020 No. 39 s 11

Division 4 Dealing with and deciding application

pt 5 div 4 hdg ins 2010 No. 5 s 92

sub 2020 No. 39 s 11

Subdivision 1 Preliminary

pt 5 div 4 sdiv 1 hdg ins 2020 No. 39 s 11

86Application of division

This division applies if a person made a disability worker screening application and the application has not been withdrawn.

s 86 amd 2010 No. 5 s 124; 2016 No. 9 s 33; 2018 No. 19 s 21; 2019 No. 19 s 17F

sub 2020 No. 39 s 11

87Dealing with application

(1)The chief executive must—
(a)consider the person’s application and the information available to the chief executive about the person; and
(b)if section 89 or 90 apply to the person—decide the application under that section; and
(c)if section 91 or 92 apply to the person—conduct a risk assessment of the person before deciding the application under that section.
(2)However, the chief executive is not required to decide the person’s application if—
(a)a charge for an offence against the person has not been dealt with; or
(b)the chief executive is aware that an incident involving the person, or an allegation or complaint about the person’s conduct, that is relevant to whether the person poses a risk of harm to people with disability is being investigated and the investigation has not ended.

s 87 amd 2010 No. 5 s 125; 2019 No. 19 s 17G

sub 2020 No. 39 s 11

88Information to be considered

(1)The chief executive must consider each of the following types of information for a person of which the chief executive is aware, if any—
(a)police information;
(b)domestic violence information;
(c)disciplinary information;
(d)NDIS disciplinary or misconduct information;
(e)information about—
(i)whether the person holds, or has previously held, a clearance, interstate NDIS clearance, exclusion or interstate NDIS exclusion; or
(ii)if the person has previously held a clearance or interstate NDIS clearance—whether the clearance was suspended at any time or cancelled.
(2)The chief executive may consider other information about the person that is relevant to whether the person poses a risk of harm to people with disability.

s 88 ins 2010 No. 5 s 126

amd 2014 No. 28 s 105 sch 1; 2016 No. 9 s 34; 2018 No. 19 s 22; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

Subdivision 2 Deciding application

pt 5 div 4 sdiv 2 hdg ins 2020 No. 39 s 11

89Deciding application—no relevant information

The chief executive must issue a clearance to the person if the chief executive is not aware of any information mentioned in section 88 about the person.

s 89 ins 2010 No. 5 s 126

amd 2014 No. 28 s 105 sch 1; 2016 No. 9 s 35; 2018 No. 19 s 23; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

90Deciding application—disqualified person

(1)This section applies if the chief executive is aware the person is a disqualified person.
(2)The chief executive must issue an exclusion to the person.

s 90 ins 2010 No. 5 s 126

amd 2014 No. 28 s 105 sch 1;2016 No. 9 s 36; 2018 No. 19 s 24; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

91Deciding application—exceptional circumstances for adult offender

(1)This section applies if the chief executive is aware—
(a)the person has a conviction for a serious offence and was an adult when the offence was committed; or
(b)the person—
(i)has been charged with a disqualifying offence or serious offence that has not been dealt with; and
(ii)was an adult when the offence is alleged to have been committed.

Note—

See section 95 for the requirement for the chief executive to give the person a show cause notice before deciding the person’s application if this section applies.
(2)The chief executive must issue the person an exclusion.
(3)However, the chief executive may issue the person a clearance if satisfied there are exceptional circumstances such that the person does not pose an unacceptable risk of harm to people with disability.

s 91 ins 2010 No. 5 s 126

amd 2016 No. 9 s 37; 2018 No. 19 s 25

sub 2020 No. 39 s 11

92Deciding application—general assessment of risk posed

(1)This section applies if sections 89, 90 and 91 do not apply to the person.
(2)The chief executive must—
(a)if satisfied the person does not pose an unacceptable risk of harm to people with disability—issue a clearance to the person; or
(b)if satisfied the person poses an unacceptable risk of harm to people with disability—issue an exclusion to the person.

s 92 amd 2010 No. 5 s 127

sub 2020 No. 39 s 11

Subdivision 3 Assessing risk person poses to people with disability

pt 5 div 4 sdiv 3 hdg ins 2020 No. 39 s 11

93How chief executive conducts risk assessment

(1)The chief executive conducts a risk assessment of a person by—
(a)considering the information about the person obtained by the chief executive under this part; and
(b)deciding whether the person poses an unacceptable risk of harm to people with disability.
(2)In conducting the risk assessment, the chief executive—
(a)must consider information as required under this division; and
(b)may decide the person poses an unacceptable risk of harm to people with disability—
(i)if satisfied there is a real and appreciable risk that the person might cause harm to people with disability; and
(ii)without needing to be satisfied it is likely the person will cause the harm.

s 93 amd 2010 No. 5 s 128

sub 2020 No. 39 s 11

94Matters to consider

(1)This section applies if the chief executive is aware of conduct of the person (the person’s offending conduct) that—
(a)involved the commission of an offence; or
(b)was the subject of a complaint, allegation or investigation under a law; or
(c)is otherwise relevant to whether the person poses a risk of harm to people with disability.
(2)The chief executive must consider the following matters—
(a)the nature, gravity and circumstances of the person’s offending conduct;
(b)how the person’s offending conduct is relevant to disability work;
(c)how long ago the person’s offending conduct occurred;
(d)if the person’s offending conduct was committed against another person (the victim)—
(i)the victim’s vulnerability at the time of the conduct; and
(ii)the person’s relationship to, or position of authority over, the victim at the time of the conduct;
(e)whether the person’s offending conduct indicates a pattern of concerning behaviour;
(f)the person’s conduct since the offending conduct;
(g)any other circumstances relevant to the person’s offending conduct.

s 94 ins 2010 No. 5 s 129

amd 2010 No. 33 s 119; 2016 No. 9 s 38

sub 2020 No. 39 s 11

95Action before making adverse decision

(1)This section applies if—
(a)section 91 applies to the person; or
(b)the chief executive is proposing to decide that the person poses an unacceptable risk of harm to people with disability.
(2)Before deciding the person’s application, the chief executive must—
(a)give the person a notice (a show cause notice) that complies with section 96; and
(b)consider any submissions the person makes in response to the show cause notice.

s 95 ins 2010 No. 5 s 130

amd 2014 No. 28 s 105 sch 1; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

96Requirements for show cause notice

A show cause notice given to a person under section 95 must—
(a)state the following information about the person of which the chief executive is aware—
(i)police information;
(ii)domestic violence information;
(iii)disciplinary information;
(iv)NDIS disciplinary or misconduct information;
(v)other information that the chief executive reasonably believes is relevant to whether the person poses a risk of harm to people with disability; and
(b)state that, because of the circumstances mentioned in section 95(1), the chief executive proposes to issue the person an exclusion unless the chief executive is satisfied that—
(i)if section 91 applies to the person—there are exceptional circumstances; and
(ii)the person does not pose an unacceptable risk of harm to people with disability; and
(c)invite the person to make submissions to the chief executive about—
(i)if section 91 applies to the person—whether there are exceptional circumstances; and
(ii)why the chief executive should not issue an exclusion to the person; and
(d)state the period in which the person may make the submissions, which must be at least 7 days after the chief executive gives the notice to the person.

s 96 ins 2010 No. 5 s 130

amd 2014 No. 28 s 105 sch 1; 2018 No. 19 s 26; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

Subdivision 4 Steps after application decided

pt 5 div 4 sdiv 4 hdg ins 2020 No. 39 s 11

97Application of subdivision

This subdivision applies if the chief executive decides a person’s disability worker screening application.

s 97 ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

98Issuing clearance and clearance card

(1)If the chief executive decides to issue a clearance to the person, the chief executive must—
(a)give the person a notice that states the chief executive has decided—
(i)if the person made an NDIS worker screening application—to issue the person an NDIS clearance; or
(ii)if the person made a State disability worker screening application—to issue the person a State clearance; and
(b)issue a clearance card for the clearance to the person.
(2)A clearance card, for a clearance issued to a person, is a document, in the form of a card, that evidences that the clearance has been issued to the person.

s 98 ins 2010 No. 5 s 130

amd 2016 No. 9 s 39; 2018 No. 19 s 27; 2019 No. 19 s 81 sch 1

sub 2020 No. 39 s 11

99Issuing exclusion

If the chief executive decides to issue an exclusion to the person, the chief executive must give the person a notice that states—
(a)the chief executive has decided—
(i)if the person made an NDIS worker screening application—to issue the person an NDIS exclusion; or
(ii)if the person made a State disability worker screening application—to issue the person a State exclusion; and
(b)the reasons for the decision; and
(c)the relevant review and appeal information; and
(d)that it is an offence against this Act for a person who holds an exclusion to—
(i)make a disability worker screening application; or
(ii)start or continue to be engaged in carrying out disability work; or
(iii)carry out NDIS disability work as an NDIS sole trader or State disability work as a State sole trader.

s 99 ins 2010 No. 5 s 130

amd 2018 No. 19 s 28

sub 2020 No. 39 s 11

100Notifiable persons and potential employers notified about decision

(1)The chief executive must give each notifiable person for the person a notice that states whether the person was issued—
(a)if the person made an NDIS worker screening application—an NDIS clearance or NDIS exclusion; or
(b)if the person made a State disability worker screening application—a State clearance or State exclusion.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.
(2)Also, the chief executive may give a notice mentioned in subsection (1) to a potential employer of the person.

s 100 ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

101Term of clearance

(1)The term of a clearance starts—
(a)when the clearance is issued; or
(b)if the person holds another clearance with a term that ends on a later day—immediately after the existing clearance ends.
(2)Unless it is cancelled earlier under division 6, the term of a clearance ends—
(a)for an NDIS clearance—5 years after it starts under subsection (1); or
(b)for a State clearance—3 years after it starts under subsection (1).

s 101 ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

102Term of exclusion

An exclusion remains in force unless it is cancelled under division 7.

s 102 ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

Division 5 General provisions about clearances

pt 5 div 5 hdg amd 2016 No. 9 s 14

sub 2020 No. 39 s 11

Subdivision 1 Change in information

pt 5 div 5 sdiv 1 hdg ins 2020 No. 39 s 11

103Clearance holder to notify if no longer carrying out work as volunteer or on unpaid basis

(1)This section applies if—
(a)a person holds a clearance that is not suspended; and
(b)during the term of the clearance, the person is or was—
(i)engaged to carry out disability work only as a volunteer; or
(ii)carrying out disability work as an NDIS sole trader or State sole trader only on an unpaid basis; and
(c)either of the following changes happens—
(i)the person is engaged to carry out disability work other than as a volunteer;
(ii)the person starts carrying out disability work as an NDIS sole trader or State sole trader for financial reward.
(2)The person must, within 14 days after the change happens—
(a)give the chief executive a notice, in the approved form and in an approved way, about the change; and
(b)if the person is required to pay the prescribed application fee under subsection (3)—pay the prescribed application fee to the chief executive.

Maximum penalty—10 penalty units.

Note—

See section 106 in relation to the chief executive issuing a replacement clearance card because of the change.
(3)The person must pay the prescribed application fee if the disability worker screening application in relation to which the clearance was issued was made on the basis that the person was—
(a)engaged, or to be engaged, to carry out disability work only as a volunteer; or
(b)carrying out, or proposing to carry out, disability work as an NDIS sole trader or State sole trader only on an unpaid basis.
(4)In this section—
prescribed application fee means the fee prescribed by regulation for a disability worker screening application made by a person—
(a)for a person who gives a notice under subsection (2) for a change mentioned in subsection (1)(c)(i)—engaged to carry out disability work other than as a volunteer; or
(b)for a person who gives a notice under subsection (2) for a change mentioned in subsection (1)(c)(ii)—carrying out disability work as an NDIS sole trader or State sole trader for financial reward.
unpaid basis, for carrying out disability work, means the work is carried out other than for financial reward.

s 103 prev s 103 om 2010 No. 5 s 123

pres s 103 ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

104 Clearance holder to notify change in other information

(1)A person who holds a clearance must immediately give the chief executive a notice, in the approved form and in an approved way, if the person becomes aware that—
(a)the police information about the person changes; or
(b)a risk assessment matter relating to the person changes.

Maximum penalty—100 penalty units.

(2)For subsection (1), the police information about a person changes if a criminal history event happens in relation to the person.
(3)Also, a person who holds a clearance must, within 14 days after any of the following matters change, give the chief executive a notice, in the approved form and in an approved way, about the change—
(a)the person’s name;
(b)the person’s contact details;
(c)another matter about the person, other than a matter to which section 103 or subsection (1) applies, prescribed by regulation for this subsection.

Maximum penalty—10 penalty units.

s 104 ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

Subdivision 2 Replacement of clearance card

pt 5 div 5 sdiv 2 hdg ins 2020 No. 39 s 11

105Replacement of lost or stolen card

(1)If a person’s clearance card is lost or stolen (the lost or stolen card), the person must, within 14 days after the loss or theft—
(a)give the chief executive a notice about the loss or theft in the approved form and in an approved way; and
(b)either—
(i)apply for a replacement clearance card; or
(ii)ask the chief executive under section 124 to cancel the person’s clearance.

Maximum penalty—10 penalty units.

(2)An application under subsection (1)(b)(i) must be—
(a)made in the approved form and in an approved way; and
(b)accompanied by the fee prescribed by regulation for the application.
(3)The chief executive must—
(a)cancel the lost or stolen card; and
(b)if the person applied for a replacement clearance card under subsection (1)(b)(i)—issue a replacement clearance card to the person.

s 105 ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

106Replacement for change of name, contact details or volunteer or unpaid status

(1)This section applies if a person who holds a clearance gives the chief executive notice that—
(a)the person’s name or contact details have changed; or
(b)a change mentioned in section 103(1)(c) has happened.
(2)If the chief executive considers it is appropriate to do so because of the change, the chief executive may issue a replacement clearance card to the person.
(3)If the chief executive issues a replacement clearance card to the person, the chief executive must cancel the person’s previously held clearance card.

s 106 ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

107 Requirement to return replaced card

(1)This section applies if the chief executive issues a clearance card (the replacement card) to a person who holds a clearance to replace a clearance card (the original card) previously issued to the person.
(2)If the replacement card is issued other than because the person’s original card expired or was lost or stolen, the person must give the original card to the chief executive within 14 days after the replacement card is issued.

Maximum penalty—10 penalty units.

(3)If the person’s original card was lost or stolen and the person regains possession of it, the person must give the original card to the chief executive within 7 days after regaining possession of it.

Maximum penalty—10 penalty units.

(4)A person does not commit an offence against subsection (2) or (3) if the person has a reasonable excuse.

s 107 ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

Division 6 Reassessment, suspension or cancellation of clearance

pt 5 div 6 hdg ins 2010 No. 5 s 101

amd 2016 No. 9 s 17

sub 2020 No. 39 s 11

Subdivision 1 Reassessment of risk of harm to people with disability

pt 5 div 6 sdiv 1 hdg ins 2020 No. 39 s 11

108Reassessment of risk of harm posed by holder of clearance

(1)The chief executive may conduct a risk assessment of a person who holds a clearance if the chief executive becomes aware of information about the person that—
(a)was not known to the chief executive when the decision to issue the clearance was made; and
(b)in the chief executive’s opinion, is relevant to whether the person poses a risk of harm to people with disability.
(2)The chief executive must conduct a risk assessment of a person, under subsection (1) or otherwise, before the chief executive makes a decision under this division about whether the person poses an unacceptable risk of harm to people with disability.

s 108 amd 2009 No. 24 s 53; 2010 No. 5 s 132

sub 2010 No. 5 s 133; 2020 No. 39 s 11

109Application of div 4, sdiv 3 to conducting risk assessment

(1)Division 4, subdivision 3 applies with necessary changes for conducting a risk assessment of a person under section 108.
(2)Without limiting subsection (1), section 95 applies if, under this division, the chief executive is proposing to decide that the person poses an unacceptable risk of harm to people with disability.

Note—

Section 95 requires the chief executive to give a person a show cause notice, and invite the person to make submissions, before the chief executive decides the person poses an unacceptable risk of harm to people with disability.

s 109 ins 2010 No. 5 s 133

sub 2020 No. 39 s 11

109A [Repealed]

s 109A ins 2019 No. 18 s 73

om 2020 No. 39 s 11

Subdivision 2 Suspension of clearance

pt 5 div 6 sdiv 2 hdg ins 2020 No. 39 s 11

110Application of subdivision

This subdivision applies in relation to a person who holds a clearance if—
(a)the person—
(i)is charged with a disqualifying offence that has not been dealt with; and
(ii)was an adult when the offence is alleged to have been committed; or
(b)the person becomes the subject of a banning order made for a reason that, in the chief executive’s opinion, is relevant to whether the person poses a risk of harm to people with disability; or
(c)the chief executive—
(i)is conducting a risk assessment of the person under subdivision 1; and
(ii)reasonably suspects the assessment will demonstrate that the person poses an unacceptable risk of harm to people with disability.

s 110 ins 2010 No. 5 s 133

amd 2013 No. 14 s 54 sch

sub 2020 No. 39 s 11

111Chief executive must suspend clearance

(1)The chief executive must suspend the person’s clearance by giving the person a notice (a suspension notice) about the suspension.
(2)The suspension notice must state—
(a)the person’s clearance is suspended; and
(b)the reason for the suspension; and
(c)how long the suspension will continue; and
(d)the effect of the suspension; and
(e)under section 128, the person must return the person’s clearance card to the chief executive immediately after the notice is given, unless the person has a reasonable excuse; and
(f)the relevant review and appeal information.

s 111 amd 2010 No. 5 s 135; 2013 No. 14 s 29

sub 2020 No. 39 s 11

112Notifiable persons and potential employers notified about suspension

(1)The chief executive must give each notifiable person for the person a notice that states—
(a)the person’s clearance is suspended; and
(b)how long the suspension will continue; and
(c)the effect of the suspension; and
(d)it is an offence for an NDIS service provider or funded service provider to allow the person to carry out disability work while the clearance is suspended; and
(e)an employer of the person who is given notice about the suspension of the person’s clearance under this section must not terminate the person’s employment solely or mainly because of the suspension.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.
(2)Also, the chief executive may give a notice mentioned in subsection (1) to a potential employer of the person.

s 112 sub 2020 No. 39 s 11

113Effect of suspension of clearance

(1)This section applies while the person’s clearance is suspended.
(2)The person must not—
(a)start an engagement to carry out disability work; or
(b)if the person is engaged to carry out disability work for an NDIS service provider, funded service provider or the department—carry out work for the service provider or department that is disability work; or
(c)carry out disability work as an NDIS sole trader or State sole trader.

Maximum penalty—500 penalty units or 5 years imprisonment.

(3)An employer of the person who is given notice about the suspension of the person’s clearance under section 112 must not terminate the person’s employment solely or mainly because of the suspension.

Notes—

1See also sections 56 and 60 in relation to NDIS service providers or funded service providers allowing the person to carry out disability work.
2See section 138ZZB in relation to notices under section 112 if the NDIS commission communicates the relevant information to the notifiable person.
(4)The person’s clearance continues in force even if it would otherwise end under section 101(2).

s 113 amd 2010 No. 5 s 136

sub 2020 No. 39 s 11

114When suspension of clearance ends

The suspension of the person’s clearance ends if—
(a)the chief executive decides to cancel the clearance under section 115; or
(b)the suspension ends under section 118; or
(c)the clearance is otherwise cancelled under this division.

s 114 sub 2020 No. 39 s 11

115Deciding whether to cancel suspended clearance

(1)The chief executive may decide whether or not to cancel the person’s suspended clearance—
(a)on the chief executive’s own initiative; or
(b)in response to an application made by the person under section 116.
(2)The chief executive must cancel the person’s clearance if the chief executive decides the person poses an unacceptable risk of harm to people with disability.

Note—

See sections 108(2) and 109 in relation to making a decision under this section.
(3)Otherwise, the chief executive may decide to—
(a)not cancel the person’s clearance; and
(b)end the suspension of the clearance.

s 115 amd 2009 No. 24 s 54; 2010 No. 5 s 137

sub 2010 No. 5 s 138; 2020 No. 39 s 11

116 Application to chief executive to end suspension of clearance

(1)If the person’s clearance has been suspended for at least 6 months, the person may apply to the chief executive to end the suspension of the clearance.
(2)The application must be made in the approved form and in an approved way.
(3)The chief executive is not required to decide the person’s application if—
(a)a charge for an offence against the person has not been dealt with; or
(b)the chief executive is aware that an incident involving the person, or an allegation or complaint about the person’s conduct, that is relevant to whether the person poses a risk of harm to people with disability is being investigated and the investigation has not ended.
(4)The chief executive may decide the application—
(a)by deciding under section 115 whether or not to cancel the person’s clearance; or
(b)by deciding—
(i)not to make a decision under section 115; and
(ii)to continue the suspension of the person’s clearance.
(5)If the chief executive makes a decision mentioned in subsection (4)(b), the chief executive must give the person a notice that states—
(a)the decision and reasons for the decision; and
(b)the relevant review and appeal information.

s 116 ins 2010 No. 5 s 139

sub 2020 No. 39 s 11

117Chief executive decides to cancel suspended clearance

(1)If the chief executive decides to cancel the person’s clearance under section 115, the chief executive must—
(a)cancel the clearance; and
(b)issue an exclusion to the person as follows—
(i)for a person who held an NDIS clearance—an NDIS exclusion;
(ii)for a person who held a State clearance—a State exclusion; and
(c)give the person a notice that states—
(i)the decision and reasons for the decision; and
(ii)that, if the person has not returned the person’s clearance card to the chief executive, under section 128, the person must return the person’s clearance card to the chief executive immediately, unless the person has a reasonable excuse; and
(iii)the relevant review and appeal information; and
(iv)the circumstances in which the person may apply under section 130 for the exclusion to be cancelled; and
(d)give each notifiable person for the person, and each potential employer of the person given notice about the suspension of the clearance under section 112(2), a notice that states—
(i)the person’s clearance has been cancelled; and
(ii)the person has been issued an exclusion; and
(iii)it is an offence for an NDIS service provider or funded service provider to engage, or to continue to engage, the person to carry out disability work.

Note—

See section 138ZZB in relation to notices under this paragraph if the NDIS commission communicates the relevant information to the notifiable person.
(2)Also, the chief executive may give a notice mentioned in subsection (1)(d) to another potential employer of the person.

s 117 amd 2010 No. 5 s 140; 2017 No. 14 s 50 sch 1

sub 2020 No. 39 s 11

118Chief executive decides not to cancel suspended clearance

(1)This section applies if, under section 115, the chief executive decides not to cancel the person’s clearance and end the suspension of the clearance.
(2)The suspension of the person’s clearance ends.
(3)The chief executive must—
(a)give a notice that states the suspension of the person’s clearance has ended to—
(i)the person; and
(ii)each notifiable person for the person; and
(iii)each potential employer for the person who was given a notice about the suspension under section 112(2); and
(b)if the chief executive has the person’s clearance card and the term of the person’s clearance has not ended under section 101(2)—return the person’s clearance card to the person.

s 118 ins 2010 No. 5 s 141

sub 2020 No. 39 s 11

Subdivision 3 Cancelling clearance by chief executive

pt 5 div 6 sdiv 3 hdg ins 2020 No. 39 s 11

119Cancelling clearance—disqualified person

(1)The chief executive must cancel a person’s clearance if the person becomes a disqualified person.
(2)This section applies whether or not the person’s clearance is suspended under section 111.

s 119 ins 2010 No. 5 s 141

sub 2020 No. 39 s 11

120Cancelling clearance—wrong or incomplete information

(1)The chief executive must cancel a person’s clearance if the chief executive—
(a)becomes aware the decision to issue the clearance was based on information that was wrong or incomplete; and
(b)decides the person poses an unacceptable risk of harm to people with disability.

Note—

See sections 108(2) and 109 in relation to making a decision under this section.
(2)A risk assessment of the person conducted before the chief executive makes a decision mentioned in subsection (1)(b) must include consideration of the correct or complete information.
(3)This section applies whether or not the person’s clearance is suspended under section 111.

s 120 ins 2010 No. 5 s 141

amd 2016 No. 5 s 923 sch 4

sub 2020 No. 39 s 11

121 Cancelling clearance—new relevant information

(1)The chief executive must cancel a person’s clearance if the chief executive—
(a)becomes aware of information that—
(i)was not known to the chief executive when the decision to issue the clearance was made; and
(ii)in the chief executive’s opinion, is relevant to whether the person poses a risk of harm to people with disability; and
(b)has not suspended the person’s clearance under section 111; and
(c)decides the person poses an unacceptable risk of harm to people with disability.

Note—

See sections 108(2) and 109 in relation to making a decision under this section.
(2)A risk assessment of the person conducted before the chief executive makes a decision mentioned in subsection (1)(c) must include consideration of the information mentioned in subsection (1)(a).

s 121 ins 2010 No. 5 s 141

sub 2020 No. 39 s 11

122Action after decision

If the chief executive is required, or decides, to cancel a person’s clearance under this subdivision, the chief executive must—
(a)cancel the person’s clearance; and
(b)issue an exclusion to the person as follows—
(i)for a person who held an NDIS clearance—an NDIS exclusion;
(ii)for a person who held a State clearance—a State exclusion; and
(c)give the person a notice that states—
(i)the decision to cancel the clearance and issue the exclusion and the reasons for the decision; and
(ii)under section 128, the person must return the person’s clearance card to the chief executive immediately, unless the person has a reasonable excuse; and
(iii)the relevant review and appeal information; and
(iv)the circumstances in which the person may apply under section 130 for the exclusion to be cancelled.

s 122 ins 2010 No. 5 s 141

sub 2020 No. 39 s 11

123Notifiable persons and potential employers notified about cancellation

(1)If the chief executive cancels a person’s clearance under this subdivision, the chief executive must give each notifiable person for the person a notice that states—
(a)the person’s clearance has been cancelled; and
(b)the person has been issued an exclusion; and
(c)it is an offence for an NDIS service provider or funded service provider to engage, or to continue to engage, the person to carry out disability work.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.
(2)Also, the chief executive may give a notice mentioned in subsection (1) to a potential employer of the person.

s 123 ins 2010 No. 5 s 141

amd 2016 No. 5 s 923 sch 4

sub 2020 No. 39 s 11

123I[Repealed]

s 123I ins 2008 No. 23 s 7

amd 2014 No. 26 s 216

om 2014 No. 5 s 12

123ZM[Repealed]

s 123ZM ins 2008 No. 23 s 7

om 2014 No. 5 s 28

123ZN[Repealed]

s 123ZN ins 2008 No. 23 s 7

amd 2009 No. 24 s 62

om 2014 No. 5 s 28

123ZT[Repealed]

s 123ZT ins 2008 No. 23 s 7

om 2014 No. 5 s 29

123ZU[Repealed]

s 123ZU ins 2008 No. 23 s 7

om 2014 No. 5 s 29

123ZV[Repealed]

s 123ZV ins 2008 No. 23 s 7

om 2014 No. 5 s 29

123ZW[Repealed]

s 123ZW ins 2008 No. 23 s 7

om 2014 No. 5 s 29

Subdivision 4 Cancelling clearance on holder’s request

pt 5 div 6 sdiv 4 hdg ins 2020 No. 39 s 11

124Request to cancel clearance

(1)A person may ask the chief executive to cancel the person’s clearance.
(2)The request must be made in the approved form and in an approved way.

s 124 prev s 124 om 2014 No. 12 s 59

pres s 124 ins 2010 No. 5 s 141

amd 2016 No. 5 s 923sch 4

sub 2020 No. 39 s 11

125Refusal to cancel clearance

(1)The chief executive must refuse a person’s request under section 124 if—
(a)the person’s clearance is suspended; or
(b)the chief executive is conducting, or proposes to conduct, a risk assessment of the person under subdivision 1; or
(c)the chief executive is aware the person has become a disqualified person.
(2)The chief executive must give the person a notice that states—
(a)the chief executive is refusing the request to cancel the person’s clearance; and
(b)the reasons for the refusal.

s 125 prev s 125 om 2014 No. 12 s 59

pres s 125 ins 2010 No. 5 s 141

sub 2020 No. 39 s 11

126Cancellation of clearance

(1)This section applies if a request under section 124 is not refused by the chief executive under section 125.
(2)The chief executive must—
(a)cancel the person’s clearance; and
(b)give the person a notice that states—
(i)the clearance has been cancelled; and
(ii)under section 128, the person must return the person’s clearance card to the chief executive immediately after the notice is given, unless the person has a reasonable excuse; and
(iii)it is an offence for the person to be engaged in carrying out disability work, or to carry out disability work as an NDIS sole trader or State sole trader, other than as allowed under division 2.

s 126 prev s 126 om 2014 No. 12 s 59

pres s 126 ins 2010 No. 5 s 141

sub 2020 No. 39 s 11

127Notifiable persons and potential employers notified about cancellation

(1)If the chief executive cancels a person’s clearance under section 126, the chief executive must give a notice to each notifiable person for the person that states—
(a)the person’s clearance has been cancelled on the person’s request; and
(b)it is an offence for an NDIS service provider or funded service provider to engage, or continue to engage, the person in disability work other than as allowed under division 2.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.
(2)Also, the chief executive may give a potential employer for the person a notice mentioned in subsection (1).

s 127 prev s 127 om 2014 No. 12 s 59

pres s 127 ins 2010 No. 5 s 141

sub 2020 No. 39 s 11

Subdivision 5 Return of clearance card

pt 5 div 6 sdiv 5 hdg ins 2020 No. 39 s 11

128Requirement to return suspended or cancelled card

(1)This section applies to a person if the chief executive gives the person a notice that states the person’s clearance is suspended or cancelled.
(2)The person must return the person’s clearance card for the clearance to the chief executive immediately after the notice is given, unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

s 128 prev s 128 om 2014 No. 12 s 59

pres s 128 ins 2010 No. 5 s 141

amd 2016 No. 5 s 923 sch 4

sub 2020 No. 39 s 11

Division 7 Cancellation of exclusion

pt 5 div 7 hdg amd 2010 No. 5 s 102

sub 2020 No. 39 s 11

pt 5 div 7 sdiv 1 hdg amd 2016 No. 9 s 20

om 2020 No. 39 s 11

pt 5 div 7 sdiv 2 hdg sub 2010 No. 5 s 109

om 2020 No. 39 s 11

pt 5 div 7 sdiv 3 hdg amd 2010 No. 5 s 110

om 2020 No. 39 s 11

pt 5 div 7 sdiv 4 hdg om 2020 No. 39 s 11

129 Application of div 4, sdiv 3 to conducting risk assessment

(1)The chief executive must conduct a risk assessment of a person before the chief executive makes a decision under this division about whether the person poses an unacceptable risk of harm to people with disability.
(2)Division 4, subdivision 3 applies for conducting the risk assessment with necessary changes.
(3)Without limiting subsection (2), section 95 applies if, under this division, the chief executive is proposing to decide that the person poses an unacceptable risk of harm to people with disability.

Note—

Section 95 requires the chief executive to give a person a show cause notice, and invite the person to make submissions, before the chief executive decides the person poses an unacceptable risk of harm to people with disability.

s 129 prev s 129 om 2014 No. 12 s 59

pres s 129 ins 2010 No. 5 s 141

amd 2016 No. 5 s 923 sch 4

sub 2020 No. 39 s 11

130Application to cancel exclusion

(1)A person who holds an exclusion, other than a disqualified person, may apply to the chief executive to cancel the exclusion if—
(a)the application is made more than 5 years after—
(i)the exclusion was issued; and
(ii)if the person has previously applied to cancel the exclusion under this section—the most recent previous application was decided; or
(b)a court decides an appeal, under section 138K, and sets aside a decision that information is investigative information about the person; or
(c)there has been a significant or exceptional change in the person’s circumstances since the exclusion was issued.

Example of a significant or exceptional change in a person’s circumstances—

a person’s conviction for an offence is quashed
(2)If the exclusion was issued because the person is a disqualified person, the person may apply to the chief executive to cancel the exclusion if the person is no longer a disqualified person.

s 130 prev s 130 om 2014 No. 12 s 59

pres s 130 amd 2010 No. 5 s 142

sub 2020 No. 39 s 11

131Form of application

(1)The application must be—
(a)made in the approved form and in an approved way; and
(b)signed by the person; and
(c)accompanied by the fee prescribed by regulation for the application.
(2)The person may state anything in the application that the person considers is relevant to the chief executive’s decision, including, for example, a change in the person’s circumstances since the exclusion was issued.

s 131 prev s 131 om 2014 No. 12 s 59

pres s 131 amd 2010 No. 5 s 144; 2016 No. 9 s 40; 2018 No. 19 s 29

sub 2020 No. 39 s 11

132Cancellation on application

(1)This section applies if a person made an application under section 130.
(2)The chief executive may cancel the person’s exclusion if the chief executive is satisfied the person does not pose an unacceptable risk of harm to people with disability.

Note—

See section 129 in relation to making a decision under this section.

s 132 prev s 132 om 2014 No. 12 s 59

pres s 132 amd 2010 No. 5 s 145; 2014 No. 28 s 105 sch 1; 2016 No. 9 s 41; 2018 No. 19 s 30; 2019 No. 19 ss 17H, 81 sch 1; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

133Other cancellation of exclusion

(1)The chief executive may act under this section whether or not a person made an application under section 130.
(2)The chief executive may cancel the person’s exclusion if the chief executive is satisfied the person does not pose an unacceptable risk of harm to people with disability and any of the following apply—
(a)the exclusion was issued because the person was a disqualified person and the person is no longer a disqualified person;
(b)the chief executive is satisfied the decision to issue the exclusion was based on wrong or incomplete information;
(c)the chief executive becomes aware of information (further information) that—
(i)was not known to the chief executive when the decision to issue the exclusion was made; and
(ii)in the chief executive’s opinion, is relevant to whether the person poses a risk of harm to people with disability.
(3)A risk assessment of the person conducted before the chief executive makes a decision for a reason mentioned in subsection (2)(b) or (c) must include consideration of the correct and complete information or the further information.

Note—

See section 129 in relation to making a decision under this section.

s 133 prev s 133 om 2014 No. 12 s 59

pres s 133 amd 2010 No. 5 s 146; 2016 No. 9 s 42; 2018 No. 19 s 31

sub 2020 No. 39 s 11

134Action after decision to cancel exclusion

(1)If the chief executive decides to cancel a person’s exclusion under this division, the chief executive must—
(a)cancel the exclusion; and
(b)give the person a notice about the cancellation.
(2)The chief executive may decide a disability worker screening application made by the person after the exclusion is cancelled without conducting a risk assessment of the person unless the chief executive is aware of information that—
(a)was not known to the chief executive when the decision to cancel the exclusion was made; and
(b)is relevant to whether the person poses a risk of harm to people with disability.

s 134 prev s 134 om 2014 No. 12 s 59

pres s 134 sub 2020 No. 39 s 11

135Notice of decision to refuse application

(1)This section applies if—
(a)a person made an application under section 130; and
(b)the chief executive decided to refuse the application.
(2)The chief executive must give the person a notice that states—
(a)the application has been refused and the person’s exclusion continues in force; and
(b)the reasons for the chief executive’s decision to refuse the application; and
(c)the relevant review and appeal information.

s 135 prev s 135 om 2014 No. 12 s 59

pres s 135 sub 2020 No. 39 s 11

Division 8 Provisions about obtaining, giving and dealing with information

pt 5 div 8 hdg sub 2010 No. 5 s 118; 2020 No. 39 s 11

Subdivision 1 Preliminary

pt 5 div 8 sdiv 1 hdg ins 2020 No. 39 s 11

136Meaning of relevant person

(1)For this division, each of the following persons is a relevant person
(a)a person who holds a clearance;
(b)a person who has made a disability worker screening application that has not been decided or withdrawn;
(c)a person to whom all of the following apply—
(i)the person has purported to make a disability worker screening application;
(ii)the application has not been properly made, including, for example, because the application was not accompanied by the fee prescribed by regulation for the application;
(iii)the application, as made, contains sufficient information for the chief executive to establish the person’s identity with certainty;
(d)a person who has made an application under section 130 to cancel the person’s exclusion and the application has not been decided or withdrawn;
(e)a person who holds an exclusion if—
(i)there is an undecided appeal, review or application under section 138J(2), 138L(2), 138ZV or 138ZW relating to the exclusion; or
(ii)there is an undecided appeal against a decision on an appeal or review under section 138J(2) or 138ZW relating to the exclusion.
(2)Also, a person is a relevant person for this division if the chief executive is aware that—
(a)the person holds an interstate NDIS clearance; or
(b)the person has made an application under a corresponding law that corresponds to an NDIS worker screening application and an NDIS worker screening unit has asked the chief executive for information about the person in relation to deciding the application.
(3)In this section—
undecided, in relation to an appeal, review or application, means the appeal, review or application has been started or made but not decided.

s 136 prev s 136 om 2014 No. 12 s 59

pres s 136 sub 2020 No. 39 s 11

137 Chief executive may disclose information about relevant persons

(1)This section applies if the chief executive may ask an entity for information about a relevant person under this division.
(2)The chief executive may include information that is reasonably necessary to identify the relevant person in the request.
(3)The chief executive may also give information about the identity of a relevant person to an entity that is authorised, under this division or another law, to give information about relevant persons to the chief executive—
(a)to advise the entity whether or not a particular person is a relevant person; or
(b)from time to time to advise the entity about the persons who are relevant persons at a particular time.

s 137 prev s 137 om 2014 No. 12 s 59

pres s 137 amd 2010 No. 5 s 147

sub 2020 No. 39 s 11

138 Information that need not be given

(1)This section applies if, under another provision of this division, an entity is required to give information to the chief executive and the entity reasonably believes that giving the information may do any of the following—
(a)prejudice the investigation of a contravention or possible contravention of the law in a particular case;
(b)enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained;
(c)prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law;
(d)prejudice a matter before a court, including, for example—
(i)a matter or an investigation before the Mental Health Court; and
(ii)a prosecution;
(e)prejudice a matter before the Mental Health Review Tribunal;
(f)endanger a person’s life or physical safety;
(g)adversely affect a person’s mental health.
(2)Despite the other provision, the entity is not required to—
(a)give the information to the chief executive; or
(b)disclose the existence of the information to the chief executive.

s 138 prev s 138 om 2014 No. 12 s 59

pres s 138 amd 2010 No. 5 s 148; 2016 No. 9 s 43; 2018 No. 19 s 32

sub 2020 No. 39 s 11

Subdivision 2 Obtaining police information and related information from police commissioner

pt 5 div 8 sdiv 2 hdg ins 2020 No. 39 s 11

138A Provision about police commissioner’s obligation to provide information

A requirement under this subdivision for the police commissioner to give the chief executive information about a relevant person applies—
(a)only to information in the commissioner’s possession or to which the commissioner has access; and
(b)despite the Youth Justice Act 1992, part 9.

s 138A ins 2020 No. 39 s 11

138B Meaning of criminal history event

(1)Any of the following events that happen in relation to a person is a criminal history event
(a)the person acquires a criminal history;
(b)the person’s criminal history changes;
(c)the police commissioner decides, under section 138I, that information about the person is investigative information;
(d)the person becomes subject to—
(i)offender reporting obligations; or
(ii)an offender prohibition order; or
(iii)an offender prohibition disqualification order;
(e)the person is named as the respondent for an application for an offender prohibition order;
(f)the person is the subject of an application for an offender prohibition disqualification order.
(2)For subsection (1)(c), it does not matter when the conduct related to the investigative information happened or is alleged to have happened.

s 138B ins 2020 No. 39 s 11

138C Chief executive’s request for police information about relevant person

(1)The chief executive may ask the police commissioner for police information about a relevant person.
(2)The police commissioner must comply with a request under subsection (1) by—
(a)giving the chief executive the police information that exists about the relevant person; or
(b)telling the chief executive there is no police information about the relevant person.
(3)If there is police information about the relevant person, the chief executive may ask the police commissioner for—
(a)a brief description of the circumstances of a conviction, charge or investigative information mentioned in the police information; and
(b)a section 93A transcript relating to an offence mentioned in the police information; and
(c)the information mentioned in section 138F(1) about an offender prohibition order or offender prohibition disqualification order mentioned in the police information; and
(d)the information mentioned in section 138F(2) about an application for an offender prohibition order or offender prohibition disqualification order mentioned in the police information if the order is not, or was not, made.
(4)The police commissioner must comply with a request under subsection (3).
(5)If the chief executive no longer needs the information requested—
(a)the chief executive must tell the police commissioner the information is no longer needed; and
(b)the police commissioner’s obligation to comply with the chief executive’s request ends.

s 138C ins 2020 No. 39 s 11

138D Chief executive’s request for domestic violence information about relevant person

(1)This section applies if the chief executive reasonably believes a domestic violence order may have been made against a relevant person.
(2)The chief executive may ask the police commissioner for domestic violence information about the relevant person.
(3)The police commissioner must comply with a request under subsection (2) by—
(a)giving the chief executive the domestic violence information that exists about the relevant person; or
(b)telling the chief executive there is no domestic violence information about the relevant person.
(4)If there is domestic violence information about the person, the chief executive may ask the police commissioner for a brief description of the circumstances of a domestic violence order mentioned in the domestic violence information.
(5)The police commissioner must comply with a request under subsection (4).
(6)If the chief executive no longer needs the information requested—
(a)the chief executive must tell the police commissioner the information is no longer needed; and
(b)the police commissioner’s obligation to comply with the chief executive’s request ends.

s 138D ins 2020 No. 39 s 11

138E Police commissioner must notify change in police information

(1)This section applies if—
(a)the police commissioner reasonably suspects a person is a relevant person; and
(b)a criminal history event happens in relation to the person.
(2)The police commissioner must give the chief executive a notice about the criminal history event.
(3)The notice must state the following information, to the extent the information relates to the criminal history event—
(a)the particulars of an offence the relevant person was charged with or convicted of, including the day the person was charged or convicted;
(b)a brief description of information that the police commissioner has decided is investigative information about the relevant person;
(c)the information mentioned in section 138F(1) about an offender prohibition order or offender prohibition disqualification order to which the relevant person is, has been or becomes subject;
(d)the information mentioned in section 138F(2) about an application for an offender prohibition order or offender prohibition disqualification order if the order is not, or was not, made.

s 138E ins 2020 No. 39 s 11

138F Particular information to be given about orders and applications for orders refused

(1)For section 138C(3)(c) or 138E(3)(c), the information about an offender prohibition order or offender prohibition disqualification order is—
(a)details of the order, including its duration; and
(b)for an offender prohibition order—
(i)a brief description of the conduct that gave rise to the order; and
(ii)whether the order is or was a temporary order or final order under the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004.
(2)For section 138C(3)(d) or 138E(3)(d), the information about an application for an offender prohibition order or offender prohibition disqualification order, if the order is not or was not made, is—
(a)the reasons the application was made; and
(b)the reasons the order was not made; and
(c)if the application was for an offender prohibition order—the reasons given by the magistrate or court hearing the application for deciding not to make the order.

s 138F ins 2020 No. 39 s 11

138G Person to be notified if investigative information given

(1)This section applies if the police commissioner gives investigative information about a relevant person to the chief executive under section 138C or 138E.
(2)The police commissioner must give the relevant person a notice that states—
(a)the police commissioner has decided that information about the person is investigative information; and
(b)the investigative information has been given to the chief executive.

s 138G ins 2020 No. 39 s 11

138H Use of information given to police commissioner

(1)Information given to the police commissioner under this division—
(a)must not be accessed or disclosed for any purpose other than—
(i)a purpose under this part; or
(ii)a purpose relevant to law enforcement; and
(b)must not be used for any purpose other than for a purpose under this part.
(2)However, subsection (1) does not apply to information obtained by the police commissioner before the chief executive gave the information to the police commissioner under this division.

s 138H ins 2020 No. 39 s 11

Subdivision 3 Provisions about investigative information

pt 5 div 8 sdiv 3 hdg ins 2020 No. 39 s 11

138I Police commissioner may decide information is investigative information

(1)The police commissioner may decide that information related to the conduct of a person (the investigated person) is investigative information about the investigated person if satisfied—
(a)there is or was evidence that, at the time of the investigated person’s conduct, it constituted a schedule 6 or 7 offence (the alleged offence) committed by the investigated person against another person (the complainant); and
(b)the matters stated in subsection (2) apply in relation to the alleged offence.
(2)The matters are—
(a)the police investigated the alleged offence; and
(b)the investigated person was formally notified about the investigation, including—
(i)by participating, or being asked to participate, in an interview about the alleged offence; or
(ii)by otherwise being given an opportunity to answer allegations about the alleged offence; and
(c)there was sufficient evidence to establish each element of the alleged offence; and
(d)the investigated person was not charged because—
(i)the complainant died before the charge was brought; or
(ii)the complainant was unwilling to proceed; or
(iii)an adult, who was the complainant’s parent or guardian, decided the matter should not proceed in the interests of the complainant.
(3)Evidence of conduct includes information from a third party if the complainant did not make a formal complaint at or about the time of the investigation.
(4)Despite the Police Service Administration Act 1990, section 4.10, the police commissioner may not delegate the police commissioner’s powers under subsection (1) other than to a police officer of at least the rank of superintendent.

s 138I ins 2020 No. 39 s 11

138J Appealing investigative information decision

(1)This section applies if—
(a)the police commissioner decides that information is investigative information about a person; and
(b)the investigative information is given to the chief executive under subdivision 2; and
(c)after the investigative information is given to the chief executive, the chief executive issues the person an exclusion, including because the chief executive cancels the person’s clearance.
(2)The person (the appellant) may appeal to a Magistrates Court about the decision (the investigative information decision) that information, given to the chief executive as investigative information about the appellant, is investigative information.
(3)However, an appeal under subsection (2) may only be made within 28 days after the appellant is given notice that the exclusion has been issued.
(4)The chief executive and police commissioner must be given a copy of the notice of appeal.
(5)The tribunal does not have jurisdiction to review a decision of the police commissioner that—
(a)information is investigative information about a person; or
(b)information that is investigative information about a person may be given to the chief executive.

s 138J ins 2020 No. 39 s 11

138K Court to decide matter afresh

(1)A Magistrates Court hearing an appeal about an investigative information decision under section 138J must decide afresh whether information given to the chief executive is investigative information about the appellant.
(2)The appellant must not ask or call on the complainant for the investigative information to give evidence in person before the court.
(3)Subsection (2) does not prevent documentary evidence being tendered and received in evidence by the court.
(4)After hearing the appeal, the court may confirm or set aside the investigative information decision.
(5)For subsection (4), the court must consider the matters the police commissioner was required to consider under section 138I when making the investigative information decision.
(6)The clerk of the court must give the appellant notice of the court’s decision on the appeal.
(7)The notice must state—
(a)that, if the chief executive’s decision to issue the appellant an exclusion is a reviewable decision, the appellant may apply for a review of the decision subject to section 138ZT(2); and
(b)how, and the period within which, the person may apply for the review.
(8)In this section—
complainant, for investigative information about the appellant, means the complainant under section 138I for the alleged offence under that section that was committed by the appellant who is the subject of the investigative information.

s 138K ins 2020 No. 39 s 11

138L Consequence of decision on appeal

(1)This section applies if a Magistrates Court decides an appeal about an investigative information decision under section 138K.
(2)If the court decides to set aside the investigative information decision, the appellant may apply to the chief executive under section 130(1)(b) to cancel the appellant’s exclusion.
(3)If the court confirms the investigative information decision, the appellant may apply under section 138ZT for an internal review of the decision to issue the exclusion to the appellant, subject to section 138ZT(2).
(4)An application mentioned in subsection (3)—
(a)must be made within 28 days after the appellant receives the notice under section 138K(6); and
(b)may be made even if the appellant applied for an internal review of the decision to issue the exclusion to the appellant before the court decided the appeal.

s 138L ins 2020 No. 39 s 11

Subdivision 4 Obtaining police information from other State entities

pt 5 div 8 sdiv 4 hdg ins 2020 No. 39 s 11

138M Obtaining information from director of public prosecutions

(1)If the chief executive is aware a relevant person has been charged with or convicted of an offence, the chief executive may, by notice, ask the director of public prosecutions for the following information about the relevant person—
(a)a written statement briefly describing the circumstances of a charge or conviction for the offence;
(b)a copy or written summary of evidentiary material about the offence;
(c)if a charge for the offence was not proceeded with—a written summary of the reasons the charge was not proceeded with.
(2)The director of public prosecutions may comply with the chief executive’s request if the director reasonably believes the information may help the chief executive to perform the chief executive’s screening functions in relation to the person.
(3)However, the director of public prosecutions must not give the chief executive a copy or written summary of evidentiary material about the offence that relates only to a person other than the relevant person.

Example—

a report by an expert about a person other than the relevant person
(4)The director of public prosecutions is authorised to give information, or a document containing information, under this section despite any other Act or law, including a law imposing an obligation to maintain confidentiality about the information.

Note—

See section 227 for restrictions on disclosing or giving access to information or documents obtained under this part.
(5)Without limiting subsection (4), this section applies despite the Director of Public Prosecutions Act 1984, section 24A.
(6)In this section—
evidentiary material, about an offence, means material compiled in the course of the investigation or prosecution of the offence, including, for example, the following—
(a)a summary of the circumstances of the alleged offence prepared by a police officer;

Examples—

bench charge sheet, QP9
(b)a witness statement;
(c)an indictment;
(d)a record of an interview or a transcript of a record of an interview, including a section 93A transcript;
(e)a report by an expert about the person alleged to have committed the offence.

s 138M ins 2020 No. 39 s 11

138N Obtaining information from chief executive (corrective services)

(1)The chief executive (corrective services) must give the chief executive a notice about each person who is subject to a sexual offender order.
(2)The notice must state—
(a)the person is subject to a sexual offender order; and
(b)any other information the chief executive (corrective services) reasonably believes may help the chief executive to perform the chief executive’s screening functions.
(3)The chief executive (corrective services) is authorised to give information under this section despite any other Act or law, including a law imposing an obligation to maintain confidentiality about the information.

Note—

See section 227 for restrictions on disclosing or giving access to information or documents obtained under this part.
(4)In this section—
chief executive (corrective services) means the chief executive of the department in which the Corrective Services Act 2006 is administered.

s 138N ins 2020 No. 39 s 11

Subdivision 5 Obtaining disciplinary and other information from particular entities

pt 5 div 8 sdiv 5 hdg ins 2020 No. 39 s 11

138O Meaning of disciplinary information and disciplinary action

(1)Disciplinary information about a person is information about any disciplinary action taken against the person.
(2)Disciplinary action, in relation to a person, means—
(a)for a person who holds, or has held, a foster carer certificate, kinship carer certificate or provisional certificate under the Child Protection Act 1999—the person’s certificate was amended, suspended or cancelled under that Act; or
(b)for a person who holds, or has held, a provider approval, service approval or supervisor certificate under the Education and Care Services Act 2013 or the Education and Care Services National Law (Queensland)—the person’s approval or certificate was amended, suspended or cancelled under that Act or Law; or
(c)the person was given a prohibition notice under—
(i)the Education and Care Services Act 2013; or
(ii)the Education and Care Services National Law (Queensland); or
(iii)the repealed Child Care Act 2002; or
(d)for a person who held a licence to conduct a child care service, including a provisional licence, under the repealed Child Care Act 2002—the person’s licence was amended, suspended or revoked under that Act; or
(e)for a person who is, or has been, a registered teacher or holds, or has held, a permission to teach under the Education (Queensland College of Teachers) Act 2005
(i)the person’s registration or permission to teach was suspended under that Act; or
(ii)the person’s registration was cancelled under that Act; or
(iii)a practice and conduct body made a decision about practice and conduct proceedings against the teacher under that Act; or
(f)for a person who was a registered teacher under the repealed Education (Teacher Registration) Act 1988
(i)the person’s registration was suspended or cancelled under that Act; or
(ii)the Board of Teacher Registration under that Act made an order about the person after inquiring into a matter concerning the person’s conduct under that Act.
(3)In this section—
amended, in relation to an approval, certificate or licence held by a person, means the approval, certificate or licence was amended other than—
(a)at the person’s request; or
(b)with the person’s agreement; or
(c)to extend the term of the approval, certificate or licence; or
(d)in another way that is consistent with, or not contrary to, the person’s interests.

s 138O ins 2020 No. 39 s 11

138P Request for information about disciplinary action against relevant person

(1)The chief executive may, by notice, ask any of the following entities (each a State entity) for disciplinary information about a relevant person—
(a)the chief executive (child safety) in relation to disciplinary action mentioned in section 138O(2)(a);
(b)the chief executive (education and care) in relation to disciplinary action mentioned in section 138O(2)(b), (c) or (d);
(c)the college of teachers in relation to disciplinary action mentioned in section 138O(2)(e) or (f).
(2)In this section—
chief executive (education and care) means—
(a)the chief executive of the department in which the Education and Care Services Act 2013 is administered; or
(b)the children’s services regulator under the Education and Care Services National Law (Queensland).
college of teachers means the Queensland College of Teachers under the Education (Queensland College of Teachers) Act 2005.

s 138P ins 2020 No. 39 s 11

138Q State entity must comply with request for disciplinary information

(1)This section applies if a State entity is given a request about a relevant person under section 138P.
(2)The State entity must give the requested disciplinary information about the relevant person to the chief executive if the State entity reasonably believes the information may help the chief executive to perform the chief executive’s screening functions.
(3)Disciplinary information given under subsection (2) must include the following information—
(a)the disciplinary action taken;
(b)when the conduct that constituted a ground for the disciplinary action happened;
(c)the nature of the conduct that constituted a ground for the disciplinary action;
(d)other information about the disciplinary action the State entity reasonably believes may help the chief executive to perform the chief executive’s screening functions.
(4)Disciplinary information given under subsection (2) must not include information that identifies, or is likely to identify, a particular child.

s 138Q ins 2020 No. 39 s 11

138R Request for other information about relevant person from prescribed entities

(1)This section applies if the chief executive reasonably believes a prescribed entity has information, other than disciplinary information, that is relevant to whether a relevant person poses a risk of harm to people with disability.
(2)The chief executive may, by notice, ask the prescribed entity for information about the relevant person.
(3)The prescribed entity may give the information about the relevant person to the chief executive if the entity reasonably believes the information may help the chief executive to perform the chief executive’s screening functions.
(4)This section applies subject to the Child Protection Act 1999, section 186.
(5)In this section—
prescribed entity means—
(a)the chief executive (child safety); or
(b)the chief executive of the department in which the Community Services Act 2007 is administered; or
(c)another entity that—
(i)is prescribed by regulation for this section; and
(ii)has entered into an arrangement with the chief executive to give the chief executive information under this section.

s 138R ins 2020 No. 39 s 11

138S State entity must update disciplinary information

(1)This section applies if a State entity gives disciplinary information about a relevant person to the chief executive under this subdivision and the information changes.
(2)The State entity must give the chief executive a notice about the change in the information.

s 138S ins 2020 No. 39 s 11

Subdivision 6 Obtaining information about person’s mental health

pt 5 div 8 sdiv 6 hdg ins 2020 No. 39 s 11

138T Application of subdivision

(1)This subdivision applies if—
(a)the chief executive is deciding whether a relevant person poses an unacceptable risk of harm to people with disability; and
(b)the relevant person was—
(i)charged with a disqualifying offence alleged to have been committed when the person was an adult; or
(ii)charged with or convicted of a serious offence committed, or alleged to have been committed, when the person was an adult; or
(iii)charged with or convicted of an offence that relates to or involves a person with disability; and
(c)the chief executive reasonably believes it is necessary to consider the relevant person’s mental health to make the decision mentioned in paragraph (a).
(2)The chief executive may form the reasonable belief mentioned in subsection (1)(c) only if—
(a)for a charge or conviction mentioned in subsection (1)(b)—
(i)the matter of the relevant person’s mental state relating to the offence has been referred to the Mental Health Court or an entity of another State with similar functions to that court; or
(ii)a court has ordered the relevant person to undertake psychiatric treatment; or
(iii)a court has been given a report about the relevant person’s mental health prepared by a registered health practitioner; or
(b)the chief executive has, under this part, been given a report about the relevant person’s mental health prepared by a registered health practitioner.

s 138T ins 2020 No. 39 s 11

138U Request to relevant person for consent to preparation of report about person’s mental health

(1)The chief executive may, by notice, ask the relevant person—
(a)to consent to a registered health practitioner nominated by the chief executive preparing a report about the relevant person’s mental health; and
(b)to be examined by the health practitioner to enable the health practitioner to prepare the report; and
(c)to consent to the health practitioner giving the report to the chief executive.
(2)The notice must state the following—
(a)the reasons for the chief executive’s request;
(b)the name and qualifications of the registered health practitioner nominated by the chief executive to examine the relevant person;
(c)when and where the examination is to be conducted;
(d)that the health practitioner may require the relevant person to undergo further examinations;
(e)that the chief executive must bear the cost of the examination (including any further examinations) and preparation of the report;
(f)that the chief executive may consider the report about the relevant person’s mental health when deciding whether the person poses an unacceptable risk of harm to people with disability;
(g)that, if the relevant person has made a disability worker screening application, the person may ask the chief executive to withdraw the application under section 75;
(h)that, if the relevant person does not give the consent, or undergo the examination, the chief executive may—
(i)if the person has made a disability worker screening application—withdraw the application under section 79; or
(ii)decide whether the person poses an unacceptable risk of harm to people with disability without a report about the person’s mental health.
(3)The chief executive must be satisfied the registered health practitioner nominated is appropriately qualified to conduct the examination.

s 138U ins 2020 No. 39 s 11

138V Obtaining report about person’s mental health from registered health practitioner

(1)This section applies if the relevant person gives the consent mentioned in section 138U(1)(c) to the registered health practitioner giving the report about the person’s mental health to the chief executive.
(2)The chief executive must give a copy of the relevant person’s consent to the registered health practitioner.
(3)The registered health practitioner may give the report to the chief executive.
(4)The registered health practitioner is authorised to give the report under this section despite any other Act or law, including a law imposing an obligation to maintain confidentiality about the examination.

Notes—

1See section 138ZA in relation to the registered health practitioner being given information about the relevant person obtained by the chief executive from the Mental Health Court or Mental Health Review Tribunal, and restrictions on the use of the information.
2See section 227 for restrictions on disclosing or giving access to information or documents obtained under this part.

s 138V ins 2020 No. 39 s 11

138W Chief executive to bear medical costs

The chief executive must bear the costs for the following amounts charged by the registered health practitioner for preparing a report about the relevant person’s mental health under this subdivision—
(a)the amount charged for examining the person to enable the health practitioner to prepare the report;
(b)the amount charged for preparing the report.

s 138W ins 2020 No. 39 s 11

138X Request for consent to obtain information from Mental Health Court or Mental Health Review Tribunal

(1)This section applies if—
(a)the relevant person has been charged with, but not convicted of—
(i)a disqualifying offence or serious offence alleged to have been committed when the person was an adult; or
(ii)an offence that relates to or involves a person with disability; and
(b)either—
(i)the matter of the person’s mental state relating to the offence was referred to the Mental Health Court; or
(ii)the Mental Health Review Tribunal reviewed a forensic order to which the person is subject, or the person’s fitness for trial, under the Mental Health Act 2016, chapter 12, part 3, 4 or 6.
(2)The chief executive may, by notice, ask the relevant person to consent to the chief executive obtaining information about the person from the Mental Health Court or Mental Health Review Tribunal—
(a)for the chief executive to use when deciding whether the person poses an unacceptable risk of harm to people with disability; or
(b)if the chief executive asked the person, under section 138U, to consent to a registered health practitioner preparing a report about the person’s mental health—to be given to the health practitioner to use when preparing the report.
(3)The notice must state the following—
(a)the reasons for the chief executive’s request;
(b)the information that the Mental Health Court or Mental Health Review Tribunal may give the chief executive under section 138Y or 138Z;
(c)that the chief executive may consider the report about the relevant person’s mental health when deciding whether the person poses an unacceptable risk of harm to people with disability;
(d)that, if the relevant person has made a disability worker screening application, the person may ask the chief executive to withdraw the application under section 75;
(e)that, if the relevant person does not give the consent, the chief executive may—
(i)if the person made a disability worker screening application—withdraw the application under section 79; or
(ii)decide whether the person poses an unacceptable risk of harm to people with disability without obtaining the information.

s 138X ins 2020 No. 39 s 11

138Y Obtaining information from Mental Health Court

(1)The chief executive may, by notice, ask the Mental Health Court (the court) for information about the relevant person if—
(a)the matter of the person’s mental state relating to an offence mentioned in section 138X(1)(a) was referred to the court (the referred matter); and
(b)the person gives the consent mentioned in section 138X(2) for the chief executive to obtain information about the person from the court.
(2)The chief executive must give a copy of the relevant person’s consent to the court.
(3)If the relevant person’s consent is for the chief executive to use the information when deciding whether the person poses an unacceptable risk of harm to people with disability, the court may comply with the request if the court considers the information may help the chief executive make the decision.
(4)If the relevant person’s consent is for the information to be given to the registered health practitioner preparing a report about the person’s mental health, the court must comply with the chief executive’s request.
(5)The court complies with the chief executive’s request by giving the chief executive the following information—
(a)the court’s decision about the referred matter and reasons for the decision;
(b)a copy or written summary of any expert’s report about the relevant person received in evidence by the court, including, for example, a medical report, psychiatrist’s report or expert report that accompanied the reference of the matter to the court;
(c)transcripts of a hearing conducted for the referred matter if the court directed the transcript may be given to a party to the hearing or another person.
(6)A decision of the court not to give an expert report about the relevant person under this section does not prevent the chief executive applying for leave of the court under the Mental Health Act 2016, section 160(2) in relation to the report.

s 138Y ins 2020 No. 39 s 11

138Z Obtaining information from Mental Health Review Tribunal

(1)The chief executive may, by notice, ask the Mental Health Review Tribunal (the tribunal) for information about the relevant person if—
(a)the tribunal reviewed a forensic order to which the person is subject, or the person’s fitness for trial, under the Mental Health Act 2016, chapter 12, part 3, 4 or 6; and
(b)the person gives the consent mentioned in section 138X(2) for the chief executive to obtain information about the person from the tribunal.
(2)The chief executive must give a copy of the relevant person’s consent to the tribunal.
(3)If the relevant person’s consent is for the chief executive to use the information when deciding whether the person poses an unacceptable risk of harm to people with disability, the tribunal may comply with the request if the tribunal considers the information may help the chief executive make the decision.
(4)If the relevant person’s consent is for the information to be given to the registered health practitioner preparing a report about the person’s mental health, the tribunal must comply with the chief executive’s request.
(5)The tribunal complies with the request by giving the chief executive the following information—
(a)the tribunal’s decision on the review and reasons for the decision;
(b)a copy or written summary of an expert’s report about the relevant person received by the tribunal in the proceeding for the review, including, for example, a report about an examination of the person under the Mental Health Act 2016, section 454;
(c)transcripts of any hearing conducted for the review that the tribunal has directed may be given to a party to the hearing or another person.

s 138Z ins 2020 No. 39 s 11

138ZA Chief executive must give information to registered health practitioner

(1)This section applies if—
(a)the chief executive is given information about the relevant person under section 138Y or 138Z; and
(b)the person consented to the information being given to the registered health practitioner preparing a report about the person’s mental health.
(2)The chief executive must give the information to the registered health practitioner as soon as practicable after receiving the information.
(3)The registered health practitioner must not—
(a)make a record of the information; or
(b)disclose the information to anyone; or
(c)give anyone access to the information; or
(d)include any details of the information in a report about the relevant person’s mental health prepared under this subdivision.

Maximum penalty for subsection (3)—100 penalty units or 2 years imprisonment.

s 138ZA ins 2020 No. 39 s 11

138ZB Information that cannot be disclosed to relevant person under confidentiality order

(1)This section applies if information given to the chief executive under section 138Y or 138Z includes information (restricted information) that cannot be disclosed to the relevant person under a confidentiality order under the Mental Health Act 2016, section 696 or 722.
(2)If section 138ZA applies to the restricted information, the chief executive—
(a)must give the information to the registered health practitioner under that section; and
(b)must not keep the information, or a record or copy of the information, after giving the information to the health practitioner.
(3)Otherwise, the chief executive must not use the restricted information for any purpose.

s 138ZB ins 2020 No. 39 s 11

138ZC Further restrictions on chief executive’s use of information

(1)This section applies if the chief executive—
(a)is given information, other than restricted information under section 138ZB(1), about the relevant person under section 138Y or 138Z; and
(b)is deciding whether the person poses an unacceptable risk of harm to people with disability.
(2)The chief executive may use the information to make the decision only if the relevant person consented to the chief executive using the information to make the decision.

s 138ZC ins 2020 No. 39 s 11

138ZD Giving information authorised despite other laws

(1)The Mental Health Court and Mental Health Review Tribunal are authorised to give information to the chief executive under section 138Y or 138Z despite any other Act or law, including a law imposing an obligation to maintain confidentiality about the information.

Note—

See section 227 for restrictions on disclosing or giving access to information or documents obtained under this part.
(2)Without limiting subsection (1), the information may be given—
(a)even if it cannot be disclosed to the relevant person under a confidentiality order under the Mental Health Act 2016, section 696 or 722; and
(b)if the information is an expert’s report—despite the Mental Health Act 2016, section 160.

s 138ZD ins 2020 No. 39 s 11

138ZE Information that must not be given

Information or documents given by the Mental Health Court under section 138Y or the Mental Health Review Tribunal under section 138Z must not include—
(a)any material (or any record or copy of the material) given to the court or tribunal under the Mental Health Act 2016, section 155, 163 or 742, or how the material was taken into account; or
(b)the reasons of the court or tribunal for taking material mentioned in paragraph (a) into account or not taking the material into account; or
(c)the content of an expert report about a person other than the relevant person; or
(d)information about a person, other than the relevant person, that the court or tribunal considers is not relevant to the chief executive deciding whether the relevant person poses a risk of harm to people with disability.

s 138ZE ins 2020 No. 39 s 11

Subdivision 7 Giving information to other worker screening units and NDIS commission

pt 5 div 8 sdiv 7 hdg ins 2020 No. 39 s 11

138ZF Application of subdivision

This subdivision applies to information about a person—
(a)the chief executive was given, or given access to, under this part; or
(b)in the chief executive’s possession in relation to the performance of the chief executive’s screening functions.

s 138ZF ins 2020 No. 39 s 11

138ZG Giving information to chief executive (working with children)

(1)The chief executive may give information about a person to the chief executive (working with children) if the chief executive reasonably believes the information is relevant to the functions of the chief executive (working with children) under the Working with Children Act.
(2)Without limiting subsection (1), the information that may be given includes—
(a)information about a disability worker screening application made by a person; and
(b)information about a clearance, interstate NDIS clearance, exclusion or interstate NDIS exclusion held by a person; and
(c)police information about a person, including investigative information; and
(d)disciplinary information or NDIS disciplinary or misconduct information about a person; and
(e)information about a person’s mental health.

s 138ZG ins 2020 No. 39 s 11

138ZH Giving information to NDIS worker screening unit or working with children screening unit

(1)This section applies if—
(a)the chief executive is aware a person holds—
(i)an interstate NDIS clearance issued by an NDIS worker screening unit under a corresponding law; or
(ii)an interstate working with children authority issued by a working with children screening unit under a corresponding WWC law; or
(b)an NDIS worker screening unit or working with children screening unit has asked the chief executive for information about a person in relation to deciding an application made by the person under a corresponding law or corresponding WWC law.
(2)If the police commissioner gives the chief executive information about the person under subdivision 2, the chief executive may give the information to the NDIS worker screening unit or working with children screening unit.
(3)The chief executive may also give the NDIS worker screening unit or working with children screening unit other information about the person if the chief executive reasonably believes the information is relevant to the functions of the screening unit under the corresponding law or corresponding WWC law.
(4)However, the chief executive must not give the NDIS worker screening unit or working with children screening unit a section 93A transcript, or information contained in a section 93A transcript.
(5)In this section—
corresponding WWC law means a law of another State that substantially corresponds to the Working with Children Act.
interstate working with children authority means an authority, however called, issued under a corresponding WWC law that corresponds to a working with children authority under the Working with Children Act.
working with children screening unit means the entity responsible, under a corresponding WWC law, for issuing interstate working with children authorities.

s 138ZH ins 2020 No. 39 s 11

138ZI Giving information to NDIS commission

(1)The chief executive may give information about a person to the NDIS commission—
(a)under an arrangement between the chief executive and the NDIS commission, for the purpose of the information—
(i)being included in the NDIS worker screening database; or
(ii)being communicated to the person, or a notifiable person for the person, by the NDIS commission, including, for example, electronically through the NDIS worker screening database; or
(b)if the chief executive reasonably believes the information is otherwise relevant to the functions of the NDIS commission.
(2)Without limiting subsection (1), the information may include—
(a)information about an NDIS worker screening application made by a person; and
(b)information about an NDIS clearance issued to a person, including the suspension or cancellation of the clearance; and
(c)information about an NDIS exclusion issued to a person, including the cancellation of the exclusion; and
(d)information about a notice given to a person that relates to an NDIS worker screening application made by the person or an NDIS clearance or NDIS exclusion issued to the person.
(3)For subsection (1)(a), information is given to the NDIS commission if the information is entered into, or uploaded to, the NDIS worker screening database.

s 138ZI ins 2020 No. 39 s 11

Subdivision 8 Giving information about person engaged in State disability work to particular entities

pt 5 div 8 sdiv 8 hdg ins 2020 No. 39 s 11

138ZJ Authorised entities for person

Each of the following is an authorised entity for a person—
(a)a funded service provider (the person’s engaging provider) if—
(i)the service provider has notified the chief executive under this Act that the service provider engages, or proposes to engage, the person to carry out State disability work; and
(ii)neither the service provider nor the person has notified the chief executive otherwise;
(b)another person the chief executive accepts is an authorised representative of the person’s engaging provider;
(c)another person who is a notifiable person for the person;
(d)an entity to whom the chief executive is required to, or may, give a notice about the person under this Act that relates to—
(i)a State disability worker screening application made by the person; or
(ii)a State clearance or State exclusion issued to the person.

s 138ZJ ins 2020 No. 39 s 11

138ZK Chief executive may give authorised entities particular information

(1)The chief executive may give an authorised entity for a person information about—
(a)a State disability worker screening application made by the person; or
(b)a State clearance or State exclusion issued to the person; or
(c)a notice about the person given, or required to be given, to the authorised entity under this Act that relates to—
(i)a State worker screening check application made by the person; or
(ii)a State clearance or State exclusion held by the person.
(2)The chief executive may give the information under subsection (1) by allowing the authorised entity to access the information electronically.

s 138ZK ins 2020 No. 39 s 11

138ZL Use of information obtained under section 138ZK about person

(1)This section applies to a person who is given, or accesses, information about a person under section 138ZK.
(2)The person must not use the information, or disclose or give access to the information to anyone else, unless the use, disclosure or giving of access is allowed under subsection (3).

Maximum penalty—100 penalty units.

(3)The person may use the information, or disclose or give access to the information to another person, if the use, disclosure or giving of access—
(a)is to identify, assess or monitor a risk, or potential risk, of harm to a person or people with disability in relation to the person to whom the information relates carrying out disability work; or
(b)is to establish whether or not the person to whom the information relates—
(i)has made a State disability worker screening application; or
(ii)has been issued a State clearance or State exclusion; or
(c)is to comply with an obligation under this Act; or
(d)happens with the consent of the person to whom the information relates; or
(e)is required to lessen or prevent a serious threat to the life, health, safety or welfare of an individual, or the health, safety or welfare of the public; or
(f)is required by a law enforcement agency to prevent, detect, investigate, prosecute or punish an offence; or
(g)is required for a proceeding in a court or a tribunal; or
(h)is authorised under a regulation or another law.
(4)In this section—
law enforcement agency means—
(a)an entity mentioned in the Information Privacy Act 2009, schedule 5, definition law enforcement agency, paragraph (b); or
(b)an enforcement body within the meaning of the Privacy Act 1988 (Cwlth).

s 138ZL ins 2020 No. 39 s 11

Subdivision 9 Other provisions

pt 5 div 8 sdiv 9 hdg ins 2020 No. 39 s 11

138ZM Chief executive may advise whether clearance or interstate NDIS clearance is in force

(1)This section applies if a person (the requester)—
(a)asks the chief executive whether, when the request is made, a clearance or interstate NDIS clearance held by another person is in force; and
(b)in making the request, gives the chief executive—
(i)the other person’s name in which the person’s clearance is issued; and
(ii)the number of the other person’s clearance; and
(c)makes the request in the approved form and in an approved way.
(2)The chief executive may tell the requester whether or not the other person’s clearance or interstate NDIS clearance is in force at the time.

s 138ZM ins 2020 No. 39 s 11

138ZN Arrangements with chief executive (working with children) about asking for and giving information

(1)The chief executive must enter into a written arrangement with the chief executive (working with children) about—
(a)asking the chief executive (working with children) for information, or giving the chief executive (working with children) information, under this part or the Working with Children Act; and
(b)the chief executive (working with children) asking the chief executive, or giving the chief executive information, under this part or the Working with Children Act.
(2)Without limiting subsection (1), the arrangement may provide—
(a)for information to be asked for and given electronically, including on a daily basis; or
(b)for information to be given by way of providing electronic access to the information.
(3)If the arrangement provides for information to be given or accessed electronically and, under this Act or another law, there is a limitation on who may be given the information or access to the information or the purposes for which the information may be used, the arrangement must provide for the limitation.

s 138ZN ins 2020 No. 39 s 11

138ZO Arrangements with police commissioner or other entity about asking for and giving information

(1)The chief executive may enter into a written arrangement with the police commissioner or another entity about asking for, or giving, information under this part.
(2)Without limiting subsection (1), the arrangement may provide—
(a)for information to be asked for and given electronically, including on a daily basis; or
(b)for information to be given by way of providing electronic access to the information.
(3)If the arrangement provides for information to be given or accessed electronically and, under this Act or another law, there is a limitation on who may be given the information or access to the information or the purposes for which the information may be used, the arrangement must provide for the limitation.

s 138ZO ins 2020 No. 39 s 11

138ZP Guidelines for dealing with information

(1)The chief executive must make guidelines, consistent with this Act, for dealing with information the chief executive obtains under this part.
(2)The purpose of the guidelines is to ensure that, in the performance of the chief executive’s screening functions—
(a)natural justice is afforded to persons about whom information is obtained; and
(b)only relevant information is used to make decisions under this part; and
(c)decisions under this part, based on the information, are made consistently.
(3)The chief executive must give a copy of the guidelines to a person, free of charge, on request.

s 138ZP ins 2020 No. 39 s 11

138ZQ Chief executive must give person’s current address to police commissioner

(1)If the police commissioner is required to give a notice to a person under this part, the police commissioner may, by notice—
(a)state the person’s address or addresses known to the police commissioner; and
(b)ask whether the chief executive knows other information about the person’s address.
(2)The chief executive must give the police commissioner other information about the person’s address known to the chief executive.
(3)The information must not be used, disclosed or accessed for a purpose other than to give a notice to the person under this part.

s 138ZQ ins 2020 No. 39 s 11

Division 9 Review and appeal

pt 5 div 9 hdg ins 2010 No. 5 s 130

amd 2014 No. 28 s 105 sch 1; 2019 No. 18 s 86(2) sch 2

sub 2020 No. 39 s 11

138ZR Reviewable decisions and affected persons

(1)Each of the following decisions of the chief executive is a reviewable decision
(a)a decision to issue an exclusion to a person;
(b)a decision, on the application of a person under section 85(3), not to end the interim bar imposed on the person;
(c)a decision under section 116(4)(b) not to end the suspension of the person’s clearance;
(d)a decision, on the application of a person under section 130 to cancel the person’s exclusion, to refuse the application.
(2)A person mentioned in subsection (1) in relation to a reviewable decision is the affected person for the decision.

s 138ZR ins 2020 No. 39 s 11

138ZS Review process must start with internal review

An affected person for a reviewable decision may apply to the tribunal for a review of the decision only if—
(a)the affected person has applied for an internal review of the decision; and
(b)the internal review application has been decided, or is taken to have been decided, under this division.

s 138ZS ins 2020 No. 39 s 11

138ZT Who may apply for internal review

(1)An affected person for a reviewable decision may apply to the chief executive for a review of the decision under this division (an internal review).
(2)However, if the chief executive made the reviewable decision because the affected person is a disqualified person, the affected person may apply for an internal review of the decision only on the ground that the chief executive mistakenly identified the person as a disqualified person.
(3)If an affected person for a reviewable decision has not been given a notice about the decision and the reasons for the decision (an information notice), the affected person may ask the chief executive for a notice about the decision and reasons.
(4)A failure by the chief executive to give the affected person an information notice about the reviewable decision does not limit or otherwise affect the person’s right to apply for an internal review of the decision.

s 138ZT ins 2020 No. 39 s 11

138ZU Requirements for application

(1)An application for internal review of a reviewable decision must—
(a)be made in the approved form and in an approved way; and
(b)be made to the chief executive within—
(i)for a person who has been given an information notice for the decision—28 days after the day the person is given the notice; or
(ii)for a person who has not been given an information notice for the decision—28 days after the day the person becomes aware of the decision.

Note—

See also section 138L for the circumstances in which a person may apply for internal review of a reviewable decision after the day mentioned in this section.
(2)The chief executive may, at any time, extend the period within which the application may be made.
(3)The application does not affect the operation of the reviewable decision or prevent the decision being implemented.
(4)In this section—
information notice, for a reviewable decision, see section 138ZT(3).

s 138ZU ins 2020 No. 39 s 11

138ZV Internal review

(1)The chief executive must, within 28 days after receiving an application for internal review of a reviewable decision—
(a)review the reviewable decision; and
(b)decide to—
(i)confirm the reviewable decision; or
(ii)substitute another decision for the reviewable decision; and
(c)give the affected person for the reviewable decision a QCAT information notice for the chief executive’s decision.
(2)The chief executive may give the affected person notice extending, for a further 28 days, the period for the chief executive to comply with subsection (1).
(3)The application may be dealt with only by a person who—
(a)did not make the reviewable decision; and
(b)holds a more senior office than the person who made the reviewable decision.
(4)Subsection (3) does not apply to a reviewable decision made by the chief executive personally.
(5)If the chief executive does not give the affected person a QCAT information notice within the period required under subsection (1) or a longer period notified under subsection (2), the chief executive is taken to confirm the reviewable decision.

s 138ZV ins 2020 No. 39 s 11

138ZW Applying for external review

(1)This section applies to a person who must be given a QCAT information notice for an internal review decision.
(2)The person may apply to the tribunal, as provided under the QCAT Act, for a review of the internal review decision.

s 138ZW ins 2020 No. 39 s 11

138ZX Stay of operation of particular tribunal decisions

(1)This section applies if, on an application for a review of an internal review decision under section 138ZW, the tribunal sets aside the internal review decision and decides to—
(a)issue a clearance to a person; or
(b)end an interim bar imposed on a person; or
(c)end the suspension of a person’s clearance.
(2)The tribunal’s decision does not take effect until—
(a)the end of the period within which an appeal against the tribunal’s decision may be started; or
(b)if an appeal against the tribunal’s decision is started—the appeal is decided or withdrawn.
(3)This section applies despite the QCAT Act, sections 145 and 152.

s 138ZX ins 2020 No. 39 s 11

138ZY Effect of applicant for review becoming disqualified person

(1)This section applies if—
(a)an affected person for a reviewable decision applies—
(i)to the chief executive for an internal review of the decision; or
(ii)to the tribunal for a review of an internal review decision; and
(b)after making the application, the affected person becomes a disqualified person.
(2)The application and any proceeding that relates to the application must be dismissed.
(3)Subsection (2) applies to a proceeding before the tribunal, even if dismissal would be contrary to a direction of the Court of Appeal.
(4)Any appeal from a decision of the tribunal that relates to the application must also be dismissed.

s 138ZY ins 2020 No. 39 s 11

Division 10 Miscellaneous provisions

pt 5 div 10 hdg ins 2010 No. 5 s 130

sub 2020 No. 39 s 11

138ZZ False or misleading information

A person must not, for this part, give information, or a document containing information, that the person knows is false or misleading in a material particular to—
(a)the chief executive; or
(b)an NDIS service provider or funded service provider that engages, or is proposing to engage, the person.

Maximum penalty—100 penalty units or 2 years imprisonment.

s 138ZZ ins 2020 No. 39 s 11

138ZZA Chief executive may arrange for use of information system

(1)The chief executive may approve a system (an information system) for—
(a)generating, sending, receiving, storing or otherwise processing electronic communications between the chief executive and another person under this part; or
(b)generating a decision of the chief executive under this part, other than a decision—
(i)that requires the chief executive to conduct a risk assessment of a person before making the decision; or
(ii)prescribed by regulation as a decision that may not be generated by the information system.
(2)The chief executive must take all reasonable steps to ensure that a decision generated by the information system is correct.
(3)A decision generated by the information system is taken to be a decision made by the chief executive under this part.
(4)The chief executive may make a decision in substitution for a decision the chief executive is taken to have made under subsection (3) if the chief executive is satisfied that the decision generated by the information system is incorrect.

s 138ZZA ins 2020 No. 39 s 11

138ZZB Notice given to notifiable person by NDIS commission

(1)This section applies if—
(a)another provision of this part requires the chief executive to give a notice about a person to a notifiable person for the person; and
(b)the person—
(i)is the applicant for an NDIS worker screening application; or
(ii)holds an NDIS clearance, NDIS exclusion, interstate NDIS clearance or interstate NDIS exclusion.
(2)Despite the other provision, the chief executive is not required to give the notice to the notifiable person if the chief executive, under an arrangement mentioned in section 138ZI(1)(a)—
(a)has given the NDIS commission the information about the person that is required, under the provision, to be included in the notice; and
(b)is satisfied the information has been, or will be, communicated to the notifiable person by the NDIS commission, including, for example, electronically through the NDIS worker screening database.
(3)For this part, information about a person communicated to a notifiable person by the NDIS commission as mentioned in subsection (2) is taken to have been given to the notifiable person in a notice by the chief executive under the other provision.

s 138ZZB ins 2020 No. 39 s 11

Division 11 [Repealed]

pt 5 div 11 hdg om 2020 No. 39 s 11

Subdivision 1 [Repealed]

(Repealed)

pt 5 div 11 sdiv 1 hdg ins 2010 No. 5 s 131

om 2020 No. 39 s 11

Subdivision 2 [Repealed]

(Repealed)

pt 5 div 11 sdiv 2 hdg ins 2010 No. 5 s 134

om 2020 No. 39 s 11

Subdivision 3 [Repealed]

(Repealed)

pt 5 div 11 sdiv 3 hdg ins 2010 No. 5 s 139

om 2020 No. 39 s 11

Subdivision 4 [Repealed]

(Repealed)

pt 5 div 11 sdiv 4 hdg ins 2010 No. 5 s 141

om 2020 No. 39 s 11

Subdivision 5 [Repealed]

(Repealed)

pt 5 div 11 sdiv 5 hdg ins 2010 No. 5 s 141

om 2020 No. 39 s 11

Subdivision 6 [Repealed]

(Repealed)

pt 5 div 11 sdiv 6 hdg ins 2010 No. 5 s 141

om 2020 No. 39 s 11

Subdivision 7 [Repealed]

(Repealed)

pt 5 div 11 sdiv 7 hdg ins 2010 No. 5 s 143

om 2020 No. 39 s 11

Part 6 Positive behaviour support and restrictive practices

pt 6 hdg prev pt 6 hdg om 2014 No. 12 s 56

pres pt 6 hdg ins 2008 No. 23 s 7

sub 2014 No. 5 s 4

Division 1 Preliminary

pt 6 div 1 hdg ins 2008 No. 23 s 7

139Purpose of part

The purpose of this part is to protect the rights of adults with an intellectual or cognitive disability by—
(a)stating principles to be taken into account by relevant service providers in providing disability services or NDIS supports or services to those adults with behaviour that causes harm to themselves or others; and
(b)regulating the use of restrictive practices by relevant service providers in relation to those adults in a way that—
(i)has regard to the human rights of those adults; and
(ii)safeguards them and others from harm; and
(iii)maximises the opportunity for positive outcomes and aims to reduce or eliminate the need for use of the restrictive practices; and
(iv)ensures transparency and accountability in the use of the restrictive practices.

s 139 prev s 139 om 2014 No. 12 s 59

pres s 139 ins 2008 No. 23 s 7

sub 2014 No. 5 s 5

amd 2019 No. 19 s 18; 2020 No. 39 s 12

140Application of part

(1)This part applies in relation to the following service providers that provide disability services or NDIS supports or services to an adult with an intellectual or cognitive disability—
(a)an NDIS service provider;
(b)a funded service provider;
(c)the department;
(d)another service provider prescribed by regulation for this section.
(2)However, this part does not apply in relation to a service provider—
(a)prescribed by regulation; or
(b)to the extent the service provider is providing disability services or NDIS supports or services prescribed by regulation.
(3)A service provider is a relevant service provider to the extent this part applies in relation to the provider under subsections (1) and (2).
(4)To remove any doubt, it is declared that this part applies in relation to a relevant service provider in relation to the provision of disability services or NDIS supports or services to all adults with an intellectual or cognitive disability receiving disability services or NDIS supports or services from the provider even if particular disability services or NDIS supports or services are not provided with funding received from the Commonwealth or the State.

Note—

For when this part applies to a forensic disability client, see also the Forensic Disability Act 2011, section 47.

s 140 prev s 140 om 2014 No. 12 s 59

pres s 140 ins 2008 No. 23 s 7

amd 2011 No. 13 s 179; 2014 No. 5 s 6

sub 2019 No. 19 s 19

amd 2020 No. 39 s 13

141Principles for performing functions etc.

(1)This section applies to an entity, including a relevant service provider, that performs a function, or exercises a power, under this part.
(2)Despite section 17, the entity must have regard to the human rights principle in performing the function or exercising the power.

s 141 prev s 141 om 2014 No. 12 s 59

pres s 141 ins 2008 No. 23 s 7

amd 2019 No. 19 s 81 sch 1

142Principles for providing disability services or NDIS supports or services to particular adults

(1)This section applies to an adult with an intellectual or cognitive disability if the adult’s behaviour causes harm to the adult or others.
(2)A relevant service provider must provide disability services or NDIS supports or services to the adult in a way that—
(a)promotes the adult’s—
(i)development and physical, mental, social and vocational ability; and
(ii)opportunities for participation and inclusion in the community; and
(b)responds to the adult’s needs and goals; and
(c)ensures the adult and their family and friends are given an opportunity to participate in the development of strategies for the care and support of the adult; and
(d)involves—
(i)positive behaviour support planning informed by evidence-based best practice; and
(ii)the implementation of strategies, to produce behavioural change, focussed on skills development and environmental design; and
(e)ensures transparency and accountability in the use of restrictive practices; and
(f)recognises that restrictive practices should only be used—
(i)when necessary to prevent harm to the adult or others; and
(ii)if the use is the least restrictive way of ensuring the safety of the adult or others; and
(g)recognises that restrictive practices should not be used punitively or in response to behaviour that does not cause harm to the adult or others; and
(h)aims to reduce the intensity, frequency and duration of the adult’s behaviour that causes harm to the adult or others; and
(i)aims to reduce or eliminate the need to use restrictive practices; and
(j)if there is a positive behaviour support plan for the adult—ensures restrictive practices are only used consistent with the plan.

Note—

Harm to a person includes physical harm to the person and a serious risk of physical harm to the person. See section 144, definition harm.

s 142 prev s 142 om 2014 No. 12 s 59

pres s 142 ins 2014 No. 5 s 7

amd 2020 No. 39 s 70 sch 1

143Explanation of operation of pt 6

(1)This part states the circumstances in which a relevant service provider is authorised under this part to use a restrictive practice in relation to an adult with an intellectual or cognitive disability.
(2)Subsections (3) and (4) explain generally the circumstances in which a relevant service provider may be authorised under this part to use a restrictive practice in relation to an adult with an intellectual or cognitive disability.
(3)Use of the restrictive practice may be authorised if the following are satisfied—
(a)for containment or seclusion, or an associated restrictive practice—
(i)a positive behaviour support plan is prepared for the adult by the chief executive; and
(ii)use of the restrictive practice is approved by the tribunal;
(b)for any other restrictive practice—
(i)a positive behaviour support plan is prepared for the adult by the relevant service provider; and
(ii)use of the restrictive practice is consented to by a guardian for a restrictive practice (general) matter for the adult or, in some cases, an informal decision-maker for the adult;
(c)for all restrictive practices, use of the restrictive practice—
(i)is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(ii)is the least restrictive way of ensuring the safety of the adult or others; and
(iii)complies with the positive behaviour support plan for the adult.

Note—

Some other requirements must also be complied with for the relevant service provider to be authorised to use the restrictive practice. See section 151 (for containment or seclusion) or 166 (for use of other restrictive practices).
(4)Also, use of a restrictive practice may be authorised if—
(a)the restrictive practice is used in the course of providing respite services or community access services to the adult; or
(b)there is an immediate and serious risk of harm to the adult or others.

Note—

See—

sections 152, 167 and 168 for use of restrictive practices in the course of providing respite services or community access services
sections 153 and 170 for use of restrictive practices if there is an immediate and serious risk of harm to the adult or others.

(5)In this section—
associated restrictive practice means a restrictive practice other than containment or seclusion, relating to the adult who is the subject of a containment or seclusion approval.

s 143 prev s 143 om 2014 No. 12 s 59

pres s 143 ins 2008 No. 23 s 7

amd 2009 No. 24 s 55; 2019 No. 19 s 20

144Definitions for part

In this part—
adult with an intellectual or cognitive disability means an adult with a disability who has a condition attributable to an intellectual or cognitive impairment, or a combination of the impairments.
appropriately qualified see section 149.
assessment see section 148(3).
authorised psychiatrist see the Mental Health Act 2016, schedule 3.

s 144 def authorised psychiatrist amd 2011 No. 13 s 180; 2016 No. 5 s 923 sch 4

chemical restraint see section 145.
chemical restraint (fixed dose) means chemical restraint using medication that is administered at fixed intervals and times.
chief psychiatrist see the Mental Health Act 2016, schedule 3.

s 144 def chief psychiatrist ins 2016 No. 5 s 923 sch 4

community access services means disability services or NDIS supports or services that are—
(a)community access services provided to an adult with an intellectual or cognitive disability who does not receive disability services or NDIS supports or services other than respite services or community access services from a relevant service provider; and
(b)funded as community access services by the department or the Commonwealth, including under the National Disability Insurance Scheme Act 2013 (Cwlth).

s 144 def community access services amd 2020 No. 39 s 70 sch 1

contain see section 146.
containment or seclusion approval means approval given by the tribunal under the GAA, chapter 5B, part 2 for a relevant service provider to contain or seclude, or use another restrictive practice in relation to, an adult with an intellectual or cognitive disability.

s 144 def containment or seclusion approval amd 2009 No. 24 s 56 (2)

decision notice, for a decision of the chief executive, means a notice stating the following—
(a)the decision and the reasons for it;
(b)that the entity to which the notice is given may apply for review of the decision under section 187 within 28 days after the entity receives the notice;
(c)how to apply for review of the decision.

s 144 def decision notice amd 2019 No. 19 s 81 sch 1

director of mental health ...

s 144 def director of mental health om 2016 No. 5 s 923 sch 4

GAA means the Guardianship and Administration Act 2000.
guardian for a restrictive practice (general) matter, for an adult with an intellectual or cognitive disability, means a guardian for a restrictive practice (general) matter appointed for the adult under the GAA, chapter 5B.
guardian for a restrictive practice matter, for an adult with an intellectual or cognitive disability, means a guardian for a restrictive practice (general) matter, or a guardian for a restrictive practice (respite) matter, for the adult.
guardian for a restrictive practice (respite) matter, for an adult with an intellectual or cognitive disability, means a guardian for a restrictive practice (respite) matter appointed for the adult under the GAA, chapter 5B.
guardianship tribunal ...

s 144 def guardianship tribunal om 2009 No. 24 s 56 (1)

harm to a person means—
(a)physical harm to the person; or
(b)a serious risk of physical harm to the person; or
(c)damage to property involving a serious risk of physical harm to the person.
informal decision-maker, for an adult with an intellectual or cognitive disability, means a member of the adult’s support network, other than a paid carer for the adult within the meaning of the GAA.
keep and implement ...

s 144 def keep and implement om 2014 No. 5 s 8 (1)

least restrictive, for use of a restrictive practice in relation to an adult with an intellectual or cognitive disability, means use of the restrictive practice—
(a)ensures the safety of the adult or others; and
(b)having regard to paragraph (a), imposes the minimum limits on the freedom of the adult as is practicable in the circumstances.
mechanical restraint see section 147.
model positive behaviour support plan means a plan of that name prepared by the chief executive and published on the department’s website.

s 144 def model positive behaviour support plan ins 2014 No. 5 s 8 (2)

multidisciplinary assessment see section 148(4).
physical restraint, of an adult with an intellectual or cognitive disability, means the use, for the primary purpose of controlling the adult’s behaviour, of any part of another person’s body to restrict the free movement of the adult in response to the adult’s behaviour that causes harm to the adult or others.

Note—

Harm to a person includes physical harm to the person and a serious risk of physical harm to the person. See section 144, definition harm.

s 144 def physical restraint amd 2014 No. 5 s 8 (3)

positive behaviour support plan see section 150.
relevant decision-maker (respite), for an adult with an intellectual or cognitive disability, means—
(a)a guardian for a restrictive practice (respite) matter for the adult; or
(b)for a restrictive practice other than chemical restraint used under section 167, if there is no guardian for a restrictive practice (respite) matter for the adult—an informal decision-maker for the adult.
respite/community access plan see section 181(2).
respite services means disability services or NDIS supports or services that are—
(a)respite services provided to an adult with an intellectual or cognitive disability who does not receive disability services or NDIS supports or services other than respite services or community access services from a relevant service provider; and
(b)funded as respite services by the department or the Commonwealth, including under the National Disability Insurance Scheme Act 2013 (Cwlth).

s 144 def respite services amd 2020 No. 39 s 70 sch 1

restricting access, of an adult with an intellectual or cognitive disability, means restricting the adult’s access, at a place where the adult receives disability services or NDIS supports or services, to an object in response to the adult’s behaviour that causes harm to the adult or others to prevent the adult using the object to cause harm to the adult or others.

Examples—

if an adult has a history of using knives to cause harm to others, locking a drawer in which knives are kept to prevent the adult using the knives to cause harm
if an adult has Prader-Willi syndrome, restricting the adult’s access to a particular cupboard or particular parts of the fridge to prevent the adult eating in a way that is likely to harm the adult

Note—

Harm to a person includes physical harm to the person and a serious risk of physical harm to the person. See section 144, definition harm.

s 144 def restricting access amd 2014 No. 5 s 8 (4)–(7); 2020 No. 39 s 70 sch 1

restrictive practice means any of the following practices used to respond to the behaviour of an adult with an intellectual or cognitive disability that causes harm to the adult or others—
(a)containing or secluding the adult;
(b)using chemical, mechanical or physical restraint on the adult;
(c)restricting access of the adult.

Note—

Harm to a person includes physical harm to the person and a serious risk of physical harm to the person. See section 144, definition harm.

s 144 def restrictive practice sub 2014 No. 5 s 8 (1)–(2)

seclude an adult with an intellectual or cognitive disability means physically confine the adult alone, at any time of the day or night, in a room or area from which free exit is prevented in response to the adult’s behaviour that causes harm to the adult or others.

Note—

Harm to a person includes physical harm to the person and a serious risk of physical harm to the person. See section 144, definition harm.

s 144 def seclude amd 2014 No. 5 s 8 (8)

short term approval means an approval given by—
(a)the public guardian under the GAA, chapter 5B, part 4; or
(b)the chief executive under section 178.

s 144 def short term approval amd 2014 No. 26 s 215

short term plan ...

s 144 def short term plan om 2014 No. 5 s 8 (1)

support network ...

s 144 def support network om 2012 No. 36 s 8

s 144 prev s 144 om 2014 No. 12 s 59

pres s 144 ins 2008 No. 23 s 7

amd 2020 No. 39 s 70 sch 1

145Meaning of chemical restraint

(1)Chemical restraint, of an adult with an intellectual or cognitive disability, means the use of medication for the primary purpose of controlling the adult’s behaviour in response to the adult’s behaviour that causes harm to the adult or others.

Note—

Harm to a person includes physical harm to the person and a serious risk of physical harm to the person. See section 144, definition harm.
(2)However, the following are not chemical restraint—
(a)using medication for the proper treatment of a diagnosed mental illness or physical condition;
(b)using medication, for example a sedative, prescribed by a medical practitioner to facilitate or enable the adult to receive a single instance of health care under the GAA.

Example of when subsection (2)(b) applies—

sedating an adult before attending a dentist appointment is not chemical restraint
(3)To remove any doubt, it is declared that an intellectual or cognitive disability is not a physical condition.
(4)In this section—
diagnosed, for a mental illness or physical condition, means a doctor confirms the adult has the illness or condition.
mental illness see the Mental Health Act 2016, section 10.

s 145 prev s 145 om 2014 No. 12 s 59

pres s 145 ins 2008 No. 23 s 7

amd 2014 No. 5 s 9; 2016 No. 5 s 923 sch 4

146Meaning of contain

(1)Contain an adult with an intellectual or cognitive disability means physically prevent the free exit of the adult from premises where the adult receives disability services or NDIS supports or services, other than by secluding the adult, in response to the adult’s behaviour that causes harm to the adult or others.

Note—

Harm to a person includes physical harm to the person and a serious risk of physical harm to the person. See section 144, definition harm.
(2)However, the adult is not contained if—
(a)the adult is an adult with a skills deficit under part 8, division 2; and
(b)the adult’s free exit from the premises is prevented by the locking of gates, doors or windows under that part.
(3)In this section—
premises includes the land around a building or other structure, but does not include a vehicle.

s 146 prev s 146 om 2014 No. 12 s 59

pres s 146 ins 2008 No. 23 s 7

amd 2014 No. 5 s 10; 2020 No. 39 s 70 sch 1

147Meaning of mechanical restraint

(1)Mechanical restraint, of an adult with an intellectual or cognitive disability, means the use, for the primary purpose of controlling the adult’s behaviour, of a device in response to the adult’s behaviour that causes harm to the adult or others to—
(a)restrict the free movement of the adult; or
(b)prevent or reduce self-injurious behaviour.

Note—

Harm to a person includes physical harm to the person and a serious risk of physical harm to the person. See section 144, definition harm.
(2)However, the following are not mechanical restraint—
(a)using a device to enable the safe transportation of the adult;

Examples of devices used to enable safe transportation—

a cover over a seat belt buckle
a harness or strap
(b)using a device for postural support;
(c)using a device to prevent injury from involuntary bodily movements, such as seizures;
(d)using a surgical or medical device for the proper treatment of a physical condition;
(e)using bed rails or guards to prevent injury while the adult is asleep.

s 147 prev s 147 om 2014 No. 12 s 59

pres s 147 ins 2008 No. 23 s 7

amd 2014 No. 5 s 11

Division 2 Important concepts for using restrictive practices

pt 6 div 2 hdg ins 2008 No. 23 s 7

148Assessment of an adult

(1)Before a restrictive practice can be used in relation to an adult with an intellectual or cognitive disability, the adult must be assessed.
(2)However, an assessment is not required if the restrictive practice is used—
(a)under a short term approval; or
(b)in the course of providing respite services or community access services to the adult.

Note—

Although an assessment is not required for using restrictive practices in the course of providing respite services or community access services, relevant service providers must comply with division 5.
(3)For this part, an assessment of an adult with an intellectual or cognitive disability is an assessment by 1 or more persons, as provided for under subsections (4) to (6), for the following purposes—
(a)making findings about the nature, intensity, frequency and duration of the behaviour of the adult that causes harm to the adult or others;
(b)developing theories about the factors that contribute to the adult’s behaviour mentioned in paragraph (a);

Examples of factors that might contribute to the behaviour—

biological factors, such as genetic predispositions
psychological or cognitive factors, such as low communication skills
social factors, such as the adult’s surroundings
medical conditions
(c)making recommendations about appropriate strategies for—
(i)meeting the adult’s needs and improving the adult’s capabilities and quality of life; and
(ii)reducing the intensity, frequency and duration of the adult’s behaviour that causes harm to the adult or others; and
(iii)managing the adult’s behaviour that causes harm to the adult or others to minimise the risk of harm.
(4)For containing or secluding an adult under section 151, the adult must be assessed by 2 or more appropriately qualified persons who have qualifications or experience in different disciplines (a multidisciplinary assessment).
(5)For using chemical, mechanical or physical restraint under section 166 on an adult, the adult must be assessed by at least 1 appropriately qualified person.
(6)For restricting access of an adult under section 166, the adult must be assessed by the relevant service provider proposing to restrict the adult’s access.

s 148 prev s 148 om 2014 No. 12 s 59

pres s 148 ins 2008 No. 23 s 7

149Who is appropriately qualified to assess an adult

For assessing an adult with an intellectual or cognitive disability, a person is appropriately qualified if the person has the qualifications or experience appropriate to conduct the assessment.

Examples of who might be appropriately qualified persons—

behaviour analysts, medical practitioners, psychologists, psychiatrists, speech and language pathologists, occupational therapists, registered nurses, social workers

s 149 prev s 149 om 2014 No. 12 s 59

pres s 149 ins 2008 No. 23 s 7

150What is a positive behaviour support plan

(1)A positive behaviour support plan, for an adult with an intellectual or cognitive disability, is a plan that describes the strategies to be used to—
(a)meet the adult’s needs; and
(b)support the adult’s development of skills; and
(c)maximise opportunities through which the adult can improve their quality of life; and
(d)reduce the intensity, frequency and duration of the adult’s behaviour that causes harm to the adult or others.
(2)A positive behaviour support plan, for an adult with an intellectual or cognitive disability, must include at least each of the following—
(a)in relation to previous behaviour of the adult that has caused harm to the adult or others, a description of—
(i)the intensity, frequency and duration of the behaviour; and
(ii)the consequences of the behaviour; and
(iii)the early warning signs and triggers for the behaviour, if known;
(b)the positive strategies that must be attempted before using a restrictive practice, including the community access arrangements in place for the adult;
(c)for each restrictive practice proposed to be used in relation to the adult—
(i)the circumstances in which the restrictive practice is to be used; and
(ii)a demonstration of why use of the restrictive practice is the least restrictive way of ensuring the safety of the adult or others; and
(iii)the procedure for using the restrictive practice, including observations and monitoring, that must happen while the restrictive practice is being used; and
(iv)any other measures that must happen while the restrictive practice is being used that are necessary to ensure—
(A)the adult’s proper care and treatment; and
(B)the adult is safeguarded from abuse, neglect and exploitation; and
(v)a description of the anticipated positive and negative effects on the adult of using the restrictive practice; and
(vi)the intervals at which use of the restrictive practice will be reviewed by the relevant service provider using the restrictive practice;
(d)for seclusion—the maximum period for which seclusion may be used at any 1 time and the maximum frequency of the seclusion;
(e)for chemical restraint—
(i)the name of the medication to be used and any available information about the medication, including, for example, information about possible side effects; and
(ii)the dose, route and frequency of administration, including, for medication to be administered as and when needed, the circumstances in which the medication may be administered, as prescribed by the adult’s treating doctor; and
(iii)if the adult’s medication has previously been reviewed by the adult’s treating doctor—the date of the most recent medication review; and
(iv)the name of the adult’s treating doctor;
(f)for mechanical or physical restraint—the maximum period for which the restraint may be used at any 1 time.
(3)For subsection (2)(c)(vi), use of a restrictive practice must be reviewed—
(a)for a restrictive practice not used under a containment or seclusion approval—at least once during each 12-month period; or
(b)for a restrictive practice used under a containment or seclusion approval—when required by the chief executive, and at least once during the period of the approval.

s 150 prev s 150 om 2014 No. 12 s 59

pres s 150 ins 2008 No. 23 s 7

sub 2014 No. 5 s 13

Division 3 Containment and seclusion

pt 6 div 3 hdg ins 2008 No. 23 s 7

Subdivision 1 Requirements for containing or secluding an adult

pt 6 div 3 sdiv 1 hdg ins 2008 No. 23 s 7

150AAuthorisation of containment or seclusion

A relevant service provider is authorised under this part to contain or seclude an adult with an intellectual or cognitive disability if—
(a)for an adult who must be assessed under section 148—the assessment has been carried out; and
(b)the relevant service provider may contain or seclude the adult under sections 151 to 154; and
(c)for an adult who is the subject of a containment or seclusion approval—any change to the adult’s positive behaviour support plan has been made by the chief executive under subdivision 3.

s 150A ins 2019 No. 19 s 21

151Containing or secluding an adult under containment or seclusion approval

(1)A relevant service provider may contain or seclude an adult with an intellectual or cognitive disability if—
(a)the containment or seclusion is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(b)the containment or seclusion is the least restrictive way of ensuring the safety of the adult or others; and
(c)the containment or seclusion complies with—
(i)a containment or seclusion approval; and
(ii)if the containment or seclusion approval is not given as an interim order under the GAA, section 80ZR—a positive behaviour support plan for the adult developed by the chief executive under this division; and
(d)the relevant service provider complies with section 165.
(2)For subsection (1)(c)(ii), the adult is not contained or secluded in compliance with the positive behaviour support plan if the relevant service provider does not implement the positive strategies stated in the plan.
(3)It is not necessary to obtain the adult’s consent to the containment or seclusion of the adult under this section.

s 151 prev s 151 om 2014 No. 12 s 59

pres s 151 ins 2008 No. 23 s 7

amd 2014 No. 5 s 14

152Containing or secluding an adult for respite services or community access services

(1)A relevant service provider may contain or seclude an adult with an intellectual or cognitive disability in the course of providing respite services or community access services to the adult if—
(a)the containment or seclusion is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(b)the containment or seclusion is the least restrictive way of ensuring the safety of the adult or others; and
(c)before containing or secluding the adult, the relevant service provider complies with the requirements under division 5; and
(d)the containment or seclusion complies with—
(i)the consent of a guardian for a restrictive practice (respite) matter for the adult; and
(ii)a respite/community access plan for the adult; and
(e)the relevant service provider complies with section 165.
(2)For subsection (1)(d)(ii), the adult is taken not to be contained or secluded in compliance with the respite/community access plan if the relevant service provider does not implement the positive strategies stated in the plan.
(3)This section does not apply if the adult is the subject of a containment or seclusion approval.

s 152 prev s 152 om 2014 No. 12 s 59

pres s 152 ins 2008 No. 23 s 7

amd 2014 No. 5 s 15

153Containing or secluding an adult under short term approval

(1)A relevant service provider may contain or seclude an adult with an intellectual or cognitive disability if—
(a)there is an immediate and serious risk of harm to the adult or others; and
(b)the containment or seclusion is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(c)the containment or seclusion is the least restrictive way of ensuring the safety of the adult or others; and
(d)the containment or seclusion complies with a short term approval given by the public guardian under the GAA, chapter 5B, part 4; and
(e)the relevant service provider complies with section 165.
(2)It is not necessary to obtain the adult’s consent to the containment or seclusion of the adult under this section.

s 153 prev s 153 om 2014 No. 12 s 59

pres s 153 ins 2008 No. 23 s 7

amd 2014 No. 26 s 217; 2014 No. 5 s 16 (amd 2014 No. 26 s 223)

154Containing or secluding an adult before decision on short term approval

(1)A relevant service provider may contain or seclude an adult with an intellectual or cognitive disability if—
(a)the relevant service provider has asked the public guardian, in writing, for an approval under the GAA, chapter 5B, part 4 to contain or seclude the adult and the request has not been decided; and
(b)the containment or seclusion—
(i)is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(ii)is the least restrictive way of ensuring the safety of the adult or others; and
(c)a positive behaviour support plan or a respite/community access plan for the adult is being implemented; and
(d)the relevant service provider complies with section 165.
(2)However, the relevant service provider may only contain or seclude the adult until the earlier of the following—
(a)the relevant service provider is given notice about the public guardian’s decision on the request;
(b)30 days after the relevant service provider asks for the short term approval.
(3)It is not necessary to obtain the adult’s consent to the containment or seclusion of the adult under this section.

s 154 prev s 154 om 2014 No. 12 s 59

pres s 154 ins 2014 No. 5 s 17 (amd 2014 No. 26 s 224)

Subdivision 2 Multidisciplinary assessment and development of positive behaviour support plan

pt 6 div 3 sdiv 2 hdg ins 2008 No. 23 s 7

155Application of sdiv 2

This subdivision applies if—
(a)a relevant service provider notifies the chief executive that the relevant service provider wishes to contain or seclude an adult with an intellectual or cognitive disability, other than in the course of providing respite services or community access services to the adult; and
(b)the adult is not the subject of a containment or seclusion approval.

Notes—

1Under the GAA, chapter 5B, a relevant service provider other than the department must apply for a containment or seclusion approval jointly with the chief executive.
2If the adult is the subject of an existing containment or seclusion approval, see subdivision 3 for changing the adult’s positive behaviour support plan.

s 155 prev s 155 om 2014 No. 12 s 59

pres s 155 ins 2008 No. 23 s 7

156Chief executive to decide whether multidisciplinary assessment of adult will be conducted

(1)The chief executive must decide whether a multidisciplinary assessment of the adult will be conducted.
(2)The chief executive may decide a multidisciplinary assessment of the adult will be conducted if the chief executive considers it may be necessary for the relevant service provider to contain or seclude the adult to safeguard the adult or others from harm.
(3)In deciding whether a multidisciplinary assessment of the adult will be conducted, the chief executive must consult with, and consider the views of, the following entities—
(a)the adult;
(b)if the adult has a guardian or informal decision-maker—the guardian or informal decision-maker;
(c)each relevant service provider providing disability services or NDIS supports or services to the adult;
(d)if the chief executive is aware the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—the authorised psychiatrist responsible for treating the adult under that Act;
(e)if the chief executive is aware the adult is a forensic disability client—a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011;
(f)any other person considered by the chief executive to be integral to the chief executive’s decision.

Example—

a family member who is part of the adult’s support network, a key health care provider or an advocate for the adult
(4)Despite subsection (3)(b), the chief executive is not required to consult with a person who is an informal decision-maker for the adult if—
(a)the chief executive is not, and could not reasonably be expected to be, aware the person is an informal decision-maker for the adult; or
(b)after taking all reasonable steps, the chief executive can not locate the person.

s 156 prev s 156 om 2014 No. 12 s 59

pres s 156 ins 2008 No. 23 s 7

amd 2011 No. 13 s 181; 2016 No. 5 s 923 sch 4; 2019 No. 19 s 81 sch 1; 2020 No. 39 s 70 sch 1

157Notice of decision not to conduct assessment

If the chief executive decides a multidisciplinary assessment of the adult will not be conducted, the chief executive must give the following entities a decision notice about the decision—
(a)the relevant service provider;
(b)the adult;
(c)a guardian or informal decision-maker for the adult who was consulted by the chief executive under section 156(3).

s 157 prev s 157 om 2014 No. 12 s 59

pres s 157 ins 2008 No. 23 s 7

amd 2019 No. 19 s 81 sch 1

158Development of positive behaviour support plan following assessment

(1)This section applies if a multidisciplinary assessment of the adult is conducted.
(2)The chief executive must develop a positive behaviour support plan for the adult if, having regard to the findings, theories and recommendations of the persons who assessed the adult, the chief executive is satisfied—
(a)the adult’s behaviour has previously resulted in harm to the adult or others; and
(b)it is necessary for the relevant service provider to contain or seclude the adult to safeguard the adult or others from harm; and
(c)containing or secluding the adult is the least restrictive way of ensuring the safety of the adult or others.
(3)The positive behaviour support plan must provide for the use of any restrictive practice, including chemical, mechanical or physical restraint or restricting access, that is—
(a)when the plan is developed, proposed to be used in relation to the adult by any relevant service provider; and
(b)based on the recommendations of the persons who assessed the adult.
(4)In developing the positive behaviour support plan, the chief executive must—
(a)have regard to a model positive behaviour support plan; and
(b)consult with, and consider the views of, each entity that was consulted under section 156(3).
(5)If the positive behaviour support plan provides for the use of chemical restraint, the chief executive must—
(a)consult the adult’s treating doctor; and
(b)inform the adult’s treating doctor about—
(i)the findings and theories of the persons who conducted the multidisciplinary assessment about the adult’s behaviour that causes harm to the adult or others, including the factors contributing to the behaviour; and
(ii)the strategies, including other restrictive practices, proposed to be used for—
(A)meeting the adult’s needs and improving the adult’s capabilities and quality of life; and
(B)reducing the intensity, frequency and duration of the adult’s behaviour that causes harm to the adult or others.
(6)If the chief executive is not required to develop a positive behaviour support plan for the adult under subsection (2), the chief executive must give the following entities a decision notice about the decision not to develop the plan—
(a)the relevant service provider;
(b)the adult;
(c)a guardian or informal decision-maker for the adult who was consulted under section 156(3).

s 158 prev s 158 om 2014 No. 12 s 59

pres s 158 ins 2008 No. 23 s 7

amd 2014 No. 5 s 18; 2019 No. 19 s 81 sch 1

159Participation of psychiatrist or senior practitioner in development of plan

(1)This section applies if—
(a)the chief executive is aware the adult is—
(i)subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016; or
(ii)a forensic disability client; and
(b)the chief executive develops a positive behaviour support plan for the adult under this division.
(2)The chief executive must ensure a following person is given the opportunity to participate in the development of the positive behaviour support plan—
(a)for an adult mentioned in subsection (1)(a)(i)—the authorised psychiatrist responsible for treating the adult under the Mental Health Act 2016;
(b)for an adult mentioned in subsection (1)(a)(ii)—a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011.

s 159 prev s 159 om 2014 No. 12 s 59

pres s 159 ins 2008 No. 23 s 7

amd 2011 No. 13 s 182; 2016 No. 5 s 923 sch 4

Subdivision 3 Changing a positive behaviour support plan

pt 6 div 3 sdiv 3 hdg ins 2008 No. 23 s 7

160Application of sdiv 3

This subdivision applies if an adult with an intellectual or cognitive disability is the subject of a containment or seclusion approval.

s 160 prev s 160 om 2014 No. 12 s 59

pres s 160 ins 2008 No. 23 s 7

161Who may change positive behaviour support plan

The positive behaviour support plan for the adult may be changed only by the chief executive.

s 161 prev s 161 om 2014 No. 12 s 59

pres s 161 ins 2008 No. 23 s 7

162When chief executive must decide whether positive behaviour support plan should be changed

The chief executive must decide whether a change to the adult’s positive behaviour support plan should be made if—
(a)a relevant service provider asks the chief executive, in writing, to make a change to the plan; or
(b)the chief executive becomes aware the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016.

Examples of when a relevant service provider might ask for a change—

A new relevant service provider wants to use a restrictive practice in relation to the adult, including chemical, mechanical or physical restraint or restricting access.
The relevant service provider to which the containment or seclusion approval applies wants to change a detail stated in the positive behaviour support plan for the adult.
The containment or seclusion approval is about to expire and the relevant service provider to which the approval applies wishes to apply for a new approval.

s 162 prev s 162 om 2014 No. 12 s 59

pres s 162 ins 2008 No. 23 s 7

amd 2016 No. 5 s 923 sch 4

163Requirements for chief executive’s decision about whether change should be made

(1)The chief executive may decide a change should be made to the adult’s positive behaviour support plan only if satisfied the change would not—
(a)increase the risk of the adult’s behaviour causing harm to the adult or others; or
(b)decrease the extent to which the adult’s needs are met or the adult’s capabilities and quality of life are improved.
(2)For deciding whether a change should be made, the chief executive may arrange for all or part of a multidisciplinary assessment to be conducted, or consult any of the entities listed in section 156(3), as the chief executive considers appropriate in the circumstances.
(3)However, if the chief executive is deciding whether a change should be made because the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016, the chief executive must consult the authorised psychiatrist responsible for treating the adult under that Act.
(4)Also, if the chief executive is deciding whether a change should be made because the adult is a forensic disability client, the chief executive must consult a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011.
(5)Subsection (2) applies subject to any order or direction of the tribunal.

s 163 prev s 163 om 2014 No. 12 s 59

pres s 163 ins 2008 No. 23 s 7

amd 2009 No. 24 s 57; 2011 No. 13 s 183; 2016 No. 5 s 923 sch 4; 2019 No. 19 s 81 sch 1

164Action of chief executive after deciding whether change should be made

(1)If the chief executive decides a change to the adult’s positive behaviour support plan should be made, the chief executive must decide whether the change requires a GAA application to be made.
(2)The change requires the making of a GAA application if it—
(a)is inconsistent with the terms of an existing containment or seclusion approval; or

Examples—

The existing containment or seclusion approval approves seclusion for periods of not more than 15 minutes. The change is to increase the maximum period to 30 minutes.
The existing containment or seclusion approval applies to relevant service provider A. The change is for relevant service provider B to use a restrictive practice in relation to the adult.
The existing containment or seclusion approval is for seclusion. The change is for the additional use of mechanical restraint.
(b)is requested because an existing containment or seclusion approval is about to expire and the relevant service provider proposes to apply for a further approval.
(3)If the change does not require the making of a GAA application, the chief executive must make the change and give a copy of the amended plan to the following—
(a)the tribunal;
(b)the adult;
(c)if the adult has a guardian or informal decision-maker—the guardian or informal decision-maker;
(d)the relevant service provider to which an existing containment or seclusion approval applies.
(4)However, the chief executive is not required to give a copy of the amended plan to a person who is an informal decision-maker for the adult if—
(a)the chief executive is not, and could not reasonably be expected to be, aware the person is an informal decision-maker for the adult; or
(b)after taking all reasonable steps, the chief executive can not locate the person.
(5)As soon as practicable after making the decision mentioned in subsection (1), the chief executive must give a prescribed notice to—
(a)if the chief executive was required to decide whether a change should be made because of a request made by a relevant service provider—the relevant service provider; or

Note—

If the chief executive decides the change should not be made and the relevant service provider is dissatisfied with the decision, the relevant service provider could apply to the tribunal under the GAA, section 80ZA for review of the existing containment or seclusion approval.
(b)if the chief executive was required to decide whether a change should be made because the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016, or is a forensic disability client—
(i)the relevant director; and
(ii)the relevant service provider to which an existing containment or seclusion approval applies.
(6)In this section—
GAA application means an application to the tribunal for—
(a)the giving of a new containment or seclusion approval; or
(b)review of an existing containment or seclusion approval.
prescribed notice means a notice stating the chief executive’s decisions about—
(a)whether a change should be made to the positive behaviour support plan for the adult; and
(b)if the chief executive decides a change should be made—whether the change requires the making of a GAA application.
relevant director means—
(a)if the adult is a forensic disability client—the director of forensic disability; or
(b)otherwise—the chief psychiatrist.

s 164 prev s 164 om 2014 No. 12 s 59

pres s 164 ins 2008 No. 23 s 7

amd 2009 No. 24 s 58; 2011 No. 13 s 184; 2016 No. 5 s 923 sch 4

Subdivision 4 General requirements for containment or seclusion

pt 6 div 3 sdiv 4 hdg ins 2008 No. 23 s 7

165Relevant service provider to ensure adult’s needs are met

A relevant service provider containing or secluding an adult with an intellectual or cognitive disability must ensure the adult is given each of the following—
(a)sufficient bedding and clothing;
(b)sufficient food and drink;
(c)access to adequate heating and cooling;
(d)access to toilet facilities;
(e)the adult’s medication as prescribed by a doctor.

s 165 prev s 165 om 2014 No. 12 s 59

pres s 165 ins 2008 No. 23 s 7

Division 4 Use of restrictive practices other than containment or seclusion

pt 6 div 4 hdg ins 2008 No. 23 s 7

Subdivision 1 Requirements for using chemical, mechanical or physical restraint, or restricting access

pt 6 div 4 sdiv 1 hdg ins 2008 No. 23 s 7

165AAuthorisation of chemical, mechanical or physical restraint or restricting access

A relevant service provider is authorised under this part to use chemical, mechanical or physical restraint on, or restrict access of, an adult with an intellectual or cognitive disability if—
(a)for an adult who must be assessed under section 148—the assessment has been carried out under that section; and
(b)the relevant service provider may use the restrictive practice under sections 166 to 171; and
(c)for an adult in relation to whom subdivision 2 applies—any change to the adult’s positive behaviour support plan is made by the relevant service provider under section 174.

s 165A ins 2019 No. 19 s 22

166Using chemical, mechanical or physical restraint, or restricting access, with consent of guardian etc.

(1)A relevant service provider may use chemical, mechanical or physical restraint on, or restrict access of, an adult with an intellectual or cognitive disability if—
(a)use of the restrictive practice is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(b)use of the restrictive practice is the least restrictive way of ensuring the safety of the adult or others; and
(c)either—
(i)if the adult is the subject of a containment or seclusion approval—use of the restrictive practice complies with—
(A)the approval; and
(B)if the containment or seclusion approval is not given as an interim order under the GAA, section 80ZR—a positive behaviour support plan for the adult developed by the chief executive under division 3; or
(ii)otherwise—use of the restrictive practice complies with—
(A)a positive behaviour support plan for the adult developed by the relevant service provider under this division; and
(B)the consent of a relevant decision-maker for the adult.
(2)For subsection (1)(c), the restrictive practice is not used in compliance with a positive behaviour support plan if the relevant service provider does not implement the positive strategies stated in the plan.
(3)In this section—
relevant decision-maker, for an adult with an intellectual or cognitive disability, means—
(a)a guardian for a restrictive practice (general) matter for the adult; or
(b)for restricting access of the adult, if there is no guardian for a restrictive practice (general) matter for the adult—an informal decision-maker for the adult.

s 166 prev s 166 om 2014 No. 12 s 59

pres s 166 ins 2008 No. 23 s 7

amd 2014 No. 5 s 19

167Using chemical, mechanical or physical restraint, or restricting access, for respite services or community access services

(1)A relevant service provider may use chemical, mechanical or physical restraint on, or restrict access of, an adult with an intellectual or cognitive disability in the course of providing respite services or community access services to the adult if—
(a)use of the restrictive practice is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(b)use of the restrictive practice is the least restrictive way of ensuring the safety of the adult or others; and
(c)before using the restrictive practice, the relevant service provider complies with the requirements under division 5; and
(d)use of the restrictive practice complies with—
(i)the consent of a relevant decision-maker (respite) for the adult; and
(ii)a respite/community access plan for the adult.
(2)For subsection (1)(d)(ii), the restrictive practice is not used in compliance with the respite/community access plan if the relevant service provider does not implement the positive strategies stated in the plan.
(3)This section does not apply if the adult is the subject of a containment or seclusion approval.
(4)This section does not apply to chemical restraint (fixed dose) used in the course of providing respite services to the adult.

s 167 prev s 167 om 2014 No. 12 s 59

pres s 167 ins 2008 No. 23 s 7

amd 2014 No. 5 s 20

168Using chemical restraint (fixed dose) for respite services

(1)A relevant service provider may use chemical restraint (fixed dose) on an adult with an intellectual or cognitive disability in the course of providing respite services to the adult if use of the chemical restraint complies with the consent of a relevant decision-maker (respite) for the adult.
(2)This section does not apply if the adult is the subject of a containment or seclusion approval.

s 168 prev s 168 amd 2011 No. 32 s 332 sch 1 pt 2 (amd 2012 No. 9 s 47); 2014 No. 26 s 220

om 2014 No. 12 s 59

pres s 168 ins 2008 No. 23 s 7

amd 2014 No. 5 s 21

169Using chemical, mechanical or physical restraint, or restricting access, if consent ended

(1)This section applies if—
(a)the guardian for a restrictive practice matter for an adult with an intellectual or cognitive disability is the public guardian; and
(b)the public guardian has given consent (the existing consent) to the use of a restrictive practice, other than containment or seclusion, in relation to the adult.
(2)A relevant service provider may use the restrictive practice after the existing consent ends if—
(a)at least 30 days before the existing consent ends, the relevant service provider asks the public guardian, in writing, to consent to the use of the restrictive practice in relation to the adult; and
(b)at the time the existing consent ends, the public guardian has not decided whether to give the consent; and
(c)use of the restrictive practice—
(i)is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(ii)is the least restrictive way of ensuring the safety of the adult or others; and
(iii)complies with the existing consent and the positive behaviour support plan or respite/community access plan for the adult.
(3)However, the relevant service provider may only use the restrictive practice under this section until the earlier of the following—
(a)the public guardian gives the relevant service provider notice about the public guardian’s decision whether to give the consent;
(b)30 days after the existing consent ends.

s 169 prev s 169 om 2014 No. 12 s 59

pres s 169 ins 2014 No. 5 s 22 (amd 2014 No. 26 s 225)

170Using chemical, mechanical or physical restraint, or restricting access, under short term approval

(1)A relevant service provider may use chemical, mechanical or physical restraint on, or restrict access of, an adult with an intellectual or cognitive disability if—
(a)there is an immediate and serious risk of harm to the adult or others; and
(b)use of the restrictive practice—
(i)is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(ii)is the least restrictive way of ensuring the safety of the adult or others; and
(iii)complies with a short term approval.
(2)It is not necessary to obtain the adult’s consent to the use of a restrictive practice under this section.

s 170 prev s 170 om 2014 No. 12 s 59

pres s 170 ins 2008 No. 23 s 7

amd 2014 No. 5 s 23

171Using chemical, mechanical or physical restraint, or restricting access, before decision on short term approval

(1)A relevant service provider may use chemical, mechanical or physical restraint on, or restrict access of, an adult with an intellectual or cognitive disability if—
(a)the relevant service provider has asked the chief executive, in writing, for an approval under section 178 to use the restrictive practice in relation to the adult and the request has not been decided; and
(b)use of the restrictive practice—
(i)is necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(ii)is the least restrictive way of ensuring the safety of the adult or others; and
(c)a positive behaviour support plan or a respite/community access plan for the adult is being implemented.
(2)However, the relevant service provider may only use the restrictive practice until the earlier of the following—
(a)the relevant service provider is given notice about the chief executive’s decision on the request;
(b)30 days after the relevant service provider asks for the short term approval.
(3)It is not necessary to obtain the adult’s consent to the use of a restrictive practice under this section.

s 171 prev s 171 om 2014 No. 12 s 59

pres s 171 ins 2014 No. 5 s 24

Subdivision 2 Assessment of adult and positive behaviour support plan

pt 6 div 4 sdiv 2 hdg ins 2008 No. 23 s 7

172Application of sdiv 2

This subdivision applies if—
(a)a relevant service provider proposes to use chemical, mechanical or physical restraint on, or restrict access of, an adult with an intellectual or cognitive disability, other than—
(i)under a short term approval; or
(ii)in the course of providing respite services or community access services to the adult; and
(b)the adult is not the subject of a containment or seclusion approval; and

Note—

If the adult is the subject of a containment or seclusion approval, and the adult’s positive behaviour support plan does not provide for the relevant service provider’s use of the restrictive practice mentioned in paragraph (a), the relevant service provider must—
(a)ask the chief executive to change the positive behaviour support plan to provide for the relevant service provider’s use of the restrictive practice (see division 3, subdivision 3); and
(b)apply to the tribunal for the making or review of a containment or seclusion approval in relation to the relevant service provider’s use of the restrictive practice.
(c)the relevant service provider does not propose to contain or seclude the adult in addition to using the restrictive practice mentioned in paragraph (a).

s 172 prev s 172 om 2014 No. 12 s 59

pres s 172 ins 2008 No. 23 s 7

amd 2009 No. 24 s 59

173Requirements for development of positive behaviour support plan—assessment and consultation

(1)This section states the requirements with which the relevant service provider must comply in developing a positive behaviour support plan for the adult.
(2)The relevant service provider must—
(a)ensure the adult is assessed; and

Note—

See section 148 for requirements about the assessment of the adult.
(b)if the provider is aware the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—ensure the authorised psychiatrist responsible for treating the adult under that Act is given the opportunity to participate in the development of the positive behaviour support plan; and
(c)if the provider is aware the adult is a forensic disability client—ensure a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011 is given the opportunity to participate in the development of the positive behaviour support plan; and
(d)consult with, and consider the views of, the following—
(i)the adult;
(ii)any guardian or informal decision-maker for the adult;
(iii)any other relevant service provider providing disability services or NDIS supports or services to the adult;
(iv)another person considered by the provider to be integral to the development of the plan; and

Example—

a family member who is part of the adult’s support network, a key health care provider or an advocate for the adult
(e)have regard to a model positive behaviour support plan.
(3)Also, if the relevant service provider proposes to use chemical restraint, the relevant service provider must—
(a)consult the adult’s treating doctor; and
(b)inform the adult’s treating doctor about—
(i)the findings and theories of the person who assessed the adult about the adult’s behaviour that causes harm to the adult or others, including the factors contributing to the behaviour; and
(ii)the strategies, including other restrictive practices, proposed to be used in conjunction with the use of the chemical restraint for—
(A)meeting the adult’s needs and improving the adult’s capabilities and quality of life; and
(B)reducing the intensity, frequency and duration of the adult’s behaviour that causes harm to the adult or others.
(4)The positive behaviour support plan may provide for the use of mechanical or physical restraint only if the use is supported by the recommendations of the person who assessed the adult.

s 173 prev s 173 om 2014 No. 12 s 59

pres s 173 ins 2008 No. 23 s 7

amd 2011 No. 13 s 185; 2014 No. 5 s 25; 2016 No. 5 s 923 sch 4; 2020 No. 39 s 70 sch 1

174Changing a positive behaviour support plan

(1)A positive behaviour support plan that provides for use of chemical, mechanical or physical restraint may be changed by the relevant service provider only if—
(a)either—
(i)for a change relating to use of chemical restraint—the relevant service provider has consulted the adult’s treating doctor; or
(ii)otherwise—the change is supported by the recommendations of an appropriately qualified person; and
(b)a guardian for a restrictive practice (general) matter for the adult consents to the change.
(2)A positive behaviour support plan that provides only for restricting access of the adult may be changed by the relevant service provider only if a following person consents to the change—
(a)a guardian for a restrictive practice (general) matter for the adult;
(b)if there is no guardian for a restrictive practice (general) matter for the adult—an informal decision-maker for the adult.

s 174 prev s 174 om 2014 No. 12 s 59

pres s 174 ins 2008 No. 23 s 7

175Requirement for relevant service provider to consider whether plan should be changed

(1)This section applies if—
(a)a positive behaviour support plan is developed for an adult under this division; and
(b)the relevant service provider becomes aware the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016, or is a forensic disability client.
(2)The relevant service provider must consider whether the positive behaviour support plan should be changed.
(3)In deciding whether the positive behaviour support plan should be changed, the relevant service provider must—
(a)consult the authorised psychiatrist responsible for treating the adult under the Mental Health Act 2016, or senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011; and
(b)consider the psychiatrist’s, or senior practitioner’s, views about the use of any restrictive practice provided for in the plan.

s 175 prev s 175 om 2014 No. 12 s 59

pres s 175 ins 2008 No. 23 s 7

amd 2011 No. 13 s 186; 2016 No. 5 s 923 sch 4

Subdivision 3 Requirements if adult subject to forensic order, treatment support order or treatment authority

Note—

Under the Community Services Act 2007, section 19, a funded service provider may be given a compliance notice requiring the provider to remedy a contravention of a requirement under this subdivision.

pt 6 div 4 sdiv 3 note amd 2014 No. 12 s 57; 2007 No. 38 s 155 (amd 2014 No. 12 s 44); 2020 No. 39 s 70 sch 1

pt 6 div 4 sdiv 3 hdg ins 2008 No. 23 s 7

amd 2016 No. 5 s 923 sch 4

176Requirement for relevant service provider to notify guardian

(1)This section applies if—
(a)a relevant service provider is required under section173(2) or 175(3) to consult the authorised psychiatrist responsible for treating the adult under the Mental Health Act 2016, or senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011; and
(b)the psychiatrist, or senior practitioner, does not agree with the use of a restrictive practice provided for in the positive behaviour support plan for the adult.
(2)As soon as practicable after consulting the authorised psychiatrist or senior practitioner, the relevant service provider must notify a relevant decision-maker for the adult about the psychiatrist’s or senior practitioner’s views regarding use of the restrictive practice.
(3)In this section—
consult, the authorised psychiatrist responsible for treating the adult under the Mental Health Act 2016, or senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011, includes give the psychiatrist, or senior practitioner, an opportunity to participate in the development of a positive behaviour support plan.
relevant decision-maker, for the adult, means—
(a)a guardian for a restrictive practice (general) matter for the adult; or
(b)if the only restrictive practice provided for in the positive behaviour support plan for the adult is restricting access and there is no guardian for a restrictive practice (general) matter for the adult—an informal decision-maker for the adult.

s 176 prev s 176 om 2014 No. 12 s 59

pres s 176 ins 2008 No. 23 s 7

amd 2011 No. 13 s 187; 2016 No. 5 s 923 sch 4

177Requirement for relevant service provider to notify relevant director

(1)This section applies if—
(a)a relevant service provider develops or changes a positive behaviour support plan for an adult under this division; and
(b)a guardian for a restrictive practice (general) matter, or an informal decision-maker, for the adult consents to the use of a restrictive practice by the relevant service provider in relation to the adult; and
(c)the relevant service provider is or becomes aware the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016, or is a forensic disability client.
(2)The relevant service provider must—
(a)give notice to the relevant director of the terms of the consent given by the guardian or informal decision-maker as soon as practicable after the later of—
(i)the consent being given; or
(ii)the relevant service provider becoming aware as mentioned in subsection (1)(c); and
(b)if asked by the relevant director, give the director a copy of the positive behaviour support plan for the adult.
(3)In this section—
relevant director means—
(a)if the adult is a forensic disability client—the director of forensic disability; or
(b)otherwise—the chief psychiatrist.

s 177 prev s 177 om 2014 No. 12 s 59

pres s 177 ins 2008 No. 23 s 7

amd 2011 No. 13 s 188; 2016 No. 5 s 923 sch 4

Subdivision 4 Short term approvals given by chief executive

pt 6 div 4 sdiv 4 hdg ins 2008 No. 23 s 7

178Short term approval for use of restrictive practices other than containment or seclusion

(1)This section applies if a relevant service provider asks the chief executive for approval to use a restrictive practice, other than containment or seclusion, in relation to an adult with an intellectual or cognitive disability.
(2)The chief executive may give the approval only if the chief executive is satisfied—
(a)the adult is not the subject of a containment or seclusion approval; and
(b)the adult has impaired capacity for making decisions about the use of restrictive practices in relation to the adult; and
(c)either—
(i)there is no guardian for a restrictive practice (general) matter for the adult; or
(ii)there is a guardian for a restrictive practice (general) matter for the adult but the guardian has neither given, nor refused to give, consent to the relevant service provider to use the restrictive practice in relation to the adult; and

Note—

It is not necessary to obtain the adult’s consent to the use of a restrictive practice under a short term approval. See section 170.
(d)there is an immediate and serious risk that, if the approval is not given, the adult’s behaviour will cause harm to the adult or others; and
(e)use of the restrictive practice is the least restrictive way of ensuring the safety of the adult or others; and
(f)if the restrictive practice is chemical restraint—the relevant service provider has consulted with, and considered the views of, the adult’s treating doctor.
(3)If the chief executive has previously given an approval under this section in relation to the adult, the chief executive may give the approval only if satisfied exceptional circumstances justify giving a subsequent approval under this section.
(4)In deciding whether to give the approval, the chief executive must, unless it is not practicable in the circumstances, consult with and consider the views of the following persons about the proposed use of the restrictive practice—
(a)the adult, or a guardian or informal decision-maker for the adult;
(b)if the chief executive is aware the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—the authorised psychiatrist responsible for treating the adult under that Act;
(c)if the chief executive is aware the adult is a forensic disability client—a senior practitioner responsible for the care and support of the adult under the Forensic Disability Act 2011.
(5)The chief executive must, as soon as practicable after deciding whether to give the approval, give the relevant service provider notice of the decision, including, if the approval is given—
(a)the conditions to which it is subject; and
(b)the period for which it has effect.
(6)The chief executive may give the approval subject to the conditions the chief executive considers appropriate.
(7)Also, the chief executive must, within 7 days after deciding whether to give the approval, give notice of the decision to the following persons—
(a)the public guardian;
(b)any person consulted by the chief executive under subsection (4).
(8)A notice for subsection (5) must state each of the following—
(a)the name of the adult;
(b)the name of the relevant service provider;
(c)the chief executive’s decision, including, if the approval is given—
(i)the terms of the approval; and
(ii)the chief executive’s reasons for giving the approval.
(9)An entity given notice under subsection (5) or (7) of a decision of the chief executive to give, or refuse to give, the approval may apply, as provided under the QCAT Act, to the tribunal for a review of the decision.
(10)In this section—
impaired capacity see the Guardianship and Administration Act 2000, schedule 4.

s 178 prev s 178 om 2014 No. 12 s 59

pres s 178 ins 2008 No. 23 s 7

amd 2009 No. 24 s 60; 2010 No. 42 s 25; 2011 No. 13 s 189; 2014 No. 26 s 218; 2014 No. 5 s 26; 2016 No. 5 s 923 sch 4; 2019 No. 19 s 81 sch 1

179Period for which short term approval has effect

(1)An approval given by the chief executive under section 178 has effect for the period stated in the notice given to the relevant service provider under section 178(5).
(2)However, the period must not be more than 6 months.
(3)The approval ends if—
(a)a guardian for a restrictive practice (general) matter for the adult gives, or refuses to give, consent to the relevant service provider to use the restrictive practice in relation to the adult; or
(b)the tribunal gives a containment or seclusion approval for the adult.

s 179 prev s 179 om 2014 No. 12 s 59

pres s 179 ins 2008 No. 23 s 7

amd 2009 No. 24 s 61; 2010 No. 5 s 149; 2010 No. 42 s 26; 2014 No. 5 s 27

Division 5 Use of restrictive practices for respite services or community access services

pt 6 div 5 hdg ins 2008 No. 23 s 7

180Purpose of div 5

(1)This division prescribes the requirements that a relevant service provider must comply with before using a restrictive practice in the course of providing respite services or community access services to an adult with an intellectual or cognitive disability.
(2)This division does not apply for the use of chemical restraint (fixed dose) under section 168.

s 180 prev s 180 om 2014 No. 12 s 59

pres s 180 ins 2008 No. 23 s 7

181Requirement to develop respite/community access plan

(1)The relevant service provider must develop a respite/community access plan for the adult.
(2)A respite/community access plan, for an adult with an intellectual or cognitive disability, is a plan stating at least each of the following—
(a)the adult’s name;
(b)a description of the behaviour of the adult that causes harm to the adult or others, including the consequences of the behaviour;
(c)a description of the restrictive practices used in relation to the adult;
(d)the reasons for using the restrictive practices;
(e)any strategies that must be attempted before using the restrictive practices;
(f)the procedure for using the restrictive practices, including observations and monitoring, and any other measures necessary to ensure the adult’s proper care and treatment, that must take place while the restrictive practices are being used;
(g)a demonstration of why the restrictive practices are the least restrictive way of ensuring the safety of the adult or others;
(h)a description of the positive strategies that will be used to—
(i)meet the adult’s needs and improve the adult’s capabilities and quality of life; and
(ii)reduce the intensity, frequency and duration of the adult’s behaviour that causes harm to the adult or others;
(i)for containment—a description of the place where the adult will be contained;
(j)for seclusion—
(i)a description of the place where the adult will be secluded; and
(ii)the maximum period for which seclusion may be used at any 1 time and the maximum frequency of the seclusion;
(k)for chemical restraint—
(i)the name of the medication to be used and any available information about the medication, including, for example, information about possible side effects; and
(ii)the dose, route and frequency of administration, including, for medication to be administered as and when needed, the circumstances in which the medication may be administered, as prescribed by the adult’s treating doctor; and
(iii)the name of the adult’s treating doctor;
(l)for mechanical or physical restraint—the maximum period for which the restraint may be used at any 1 time;
(m)any other matter prescribed by regulation.

s 181 prev s 181 om 2014 No. 12 s 59

pres s 181 ins 2008 No. 23 s 7

amd 2019 No. 19 s 23

182Obtaining information about the adult

In developing a respite/community access plan, the relevant service provider must obtain, from the entities consulted under section 183, any information available and relevant for identifying the following—
(a)the adult’s needs;
(b)the behaviour of the adult that causes harm to the adult or others, including the consequences of the behaviour;
(c)the factors contributing to the behaviour mentioned in paragraph (b).

s 182 prev s 182 om 2014 No. 12 s 59

pres s 182 ins 2008 No. 23 s 7

amd 2019 No. 19 s 81 sch 1

183Consultation

In developing a respite/community access plan for an adult, the relevant service provider must consult with, and consider the views of, the following entities—
(a)the adult;
(b)if the adult has a guardian or informal decision-maker—the guardian or informal decision-maker;
(c)any other relevant service provider providing disability services or NDIS supports or services to the adult;
(d)any other person considered by the relevant service provider to be integral to the development of the plan.

Example—

a family member who is part of the adult’s support network, a key health care provider or an advocate for the adult

s 183 prev s 183 om 2014 No. 12 s 59

pres s 183 ins 2008 No. 23 s 7

amd 2019 No. 19 s 81 sch 1; 2020 No. 39 s 70 sch 1

183AOther requirements for developing respite/community access plan

In developing a respite/community access plan, the relevant service provider must comply with any other requirements prescribed by regulation.

s 183A ins 2019 No. 19 s 24

184Risk assessment

The relevant service provider must identify, and keep a record of—
(a)the risks associated with the provision of respite services or community access services to the adult by the relevant service provider; and

Examples of possible risks—

the adult’s behaviour causing harm to another client of the relevant service provider
the staff of the relevant service provider not being adequately trained to manage the behaviour of the adult
the physical environment in which the services are provided not being adequate to accommodate the needs of the adult
(b)the procedures the relevant service provider will implement to mitigate those risks.

s 184 prev s 184 om 2014 No. 12 s 59

pres s 184 ins 2008 No. 23 s 7

Division 6 Review of particular chief executive decisions

pt 6 div 6 hdg prev div 6 hdg om 2014 No. 5 s 29

pres div 6 hdg ins 2008 No. 23 s 7

185Application of div 6

This division applies if the chief executive makes a decision (a relevant decision) about which the chief executive is required under this part to give a decision notice.

Note—

See sections 157 (a decision that a multidisciplinary assessment will not be conducted) and 158(6) (a decision not to develop a positive behaviour support plan under division 3).

s 185 prev s 185 om 2014 No. 12 s 59

pres s 185 ins 2008 No. 23 s 7

186Definitions for div 6

In this division—
interested person, for a relevant decision, means an entity to which the chief executive is required under this part to give a decision notice about the decision.

s 186 def interested person amd 2019 No. 19 s 81 sch 1

relevant decision see section 185.

s 186 prev s 186 om 2014 No. 12 s 59

pres s 186 ins 2008 No. 23 s 7

187Application for review by chief executive

(1)An interested person for a relevant decision may apply to the chief executive, within 28 days after receiving a decision notice about the decision, to review the decision.
(2)The chief executive may extend the time for applying for the review.
(3)Also, an interested person for a relevant decision may apply to the chief executive to review the decision if the chief executive has not given the interested person a decision notice about the decision.
(4)The application must be in the approved form and accompanied by enough information to enable the chief executive to decide the application.

s 187 prev s 187 om 2014 No. 12 s 59

pres s 187 ins 2008 No. 23 s 7

amd 2009 No. 24 s 63

188Review of relevant decision

(1)This section applies to an application under section 187 for review of a relevant decision.
(2)Unless the chief executive made the relevant decision personally, the chief executive must ensure the application is not dealt with by—
(a)the person who made the relevant decision; or
(b)a person in a less senior office than the person who made the relevant decision.
(3)Within 28 days after receiving the application, the chief executive must review the relevant decision and make a decision (the review decision)—
(a)confirming the relevant decision; or
(b)amending the relevant decision; or
(c)substituting another decision for the relevant decision.
(4)Immediately after deciding the application, the chief executive must give the interested person a notice stating—
(a)the review decision; and
(b)the reasons for the review decision.

s 188 prev s 188 om 2014 No. 12 s 59

pres s 188 ins 2008 No. 23 s 7

Division 7 Miscellaneous provisions

pt 6 div 7 hdg ins 2008 No. 23 s 7

Subdivision 1 Immunity for use of restrictive practices

pt 6 div 7 sdiv 1 hdg ins 2008 No. 23 s 7

189Immunity from liability—relevant service provider

A relevant service provider is not criminally or civilly liable if the relevant service provider, acting honestly and without negligence, uses a restrictive practice under this part.

s 189 prev s 189 om 2014 No. 12 s 59

pres s 189 ins 2008 No. 23 s 7

190Immunity from liability—individual acting for relevant service provider

(1)This section applies to an individual who, acting for a relevant service provider, uses a restrictive practice in relation to an adult with an intellectual or cognitive disability.
(2)The individual is not criminally or civilly liable for using the restrictive practice if the individual acts honestly and without negligence in compliance with—
(a)if the restrictive practice is used under section 151
(i)the containment or seclusion approval for the adult; and
(ii)either—
(A)if the containment or seclusion for the adult is given as an interim order under the GAA, section 80ZR—the terms of the order; or
(B)otherwise—the positive behaviour support plan for the adult; or
(b)if the restrictive practice is used under section 152
(i)the consent of a guardian for a restrictive practice (respite) matter for the adult; and
(ii)the respite/community access plan for the adult; or
(c)if the restrictive practice is used under section 153 or 170—the relevant short term approval; or
(d)if the restrictive practice is used under section 154 or 171—the positive behaviour support plan or respite/community access plan for the adult; or
(e)if the restrictive practice is used under section 166
(i)the positive behaviour support plan for the adult; and
(ii)either—
(A)a containment or seclusion approval for the adult; or
(B)the consent of a relevant decision-maker for the adult within the meaning of section 166; or
(f)if the restrictive practice is used under section 167
(i)the respite/community access plan for the adult; and
(ii)the consent of a relevant decision-maker (respite) for the adult; or
(g)if the restrictive practice is used under section 168—the consent of a relevant decision-maker (respite) for the adult; and
(h)if the restrictive practice is used under section 169
(i)the existing consent for the adult under that section; and
(ii)the positive behaviour support plan or respite/community access plan for the adult.
(3)For subsection (2), the individual is taken to be acting in compliance with an approval, consent or plan mentioned in the subsection if the individual reasonably believes he or she is acting in compliance with the approval, consent or plan.

s 190 prev s 190 om 2014 No. 12 s 59

pres s 190 ins 2008 No. 23 s 7

amd 2014 No. 5 s 30

Subdivision 2 Requirements for relevant service providers

Note—

Under the Community Services Act 2007, section 19, a funded service provider may be given a compliance notice requiring the provider to remedy a contravention of a requirement under this subdivision.

pt 6 div 7 sdiv 2 note amd 2014 No. 12 s 58; 2007 No. 38 s 155 (amd 2014 No. 12 s 44); 2020 No. 39 s 70 sch 1

pt 6 div 7 sdiv 2 hdg ins 2008 No. 23 s 7

191Requirement to give statement about use of restrictive practices

(1)This section applies to a relevant service provider, other than a relevant service provider prescribed by regulation, that—
(a)is providing disability services or NDIS supports or services to an adult with an intellectual or cognitive disability; and
(b)is considering using restrictive practices in relation to the adult.
(2)The relevant service provider must give a statement in the approved form to the following persons about the use of restrictive practices generally—
(a)the adult;
(b)a person with a sufficient and continuing interest in the adult (an interested person).
(3)The statement must state—
(a)why the relevant service provider is considering using restrictive practices in relation to the adult; and
(b)how the adult and the interested person can be involved and express their views in relation to the use of restrictive practices; and
(c)who decides whether restrictive practices will be used in relation to the adult; and
(d)how the adult and the interested person can make a complaint about, or seek review of, the use of restrictive practices.
(4)Also, the relevant service provider must explain the statement to the adult—
(a)in the language or way the adult is most likely to understand; and
(b)in a way that has appropriate regard to the adult’s age, culture, disability and communication ability.

Example of a way for paragraph (a) or (b)—

by using visual or other aids

s 191 prev s 191 om 2014 No. 12 s 59

pres s 191 ins 2014 No. 5 s 31

amd 2019 No. 19 s 25; 2020 No. 39 s 70 sch 1

192Requirement to give information to guardian or informal decision-maker

(1)This section applies if—
(a)a relevant service provider seeks consent from a substitute decision-maker for an adult to use a restrictive practice in relation to the adult; and
(b)the restrictive practice is not chemical restraint (fixed dose) used under section 168 in the course of providing respite services to the adult.
(2)To enable the substitute decision-maker to make an informed decision about the use of a restrictive practice other than in the course of providing respite services or community access services to the adult, the relevant service provider must give the substitute decision-maker each of the following—
(a)the positive behaviour support plan for the adult;
(b)any assessment or other information used to develop or change the plan;
(c)if the relevant service provider is aware the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—the terms of the order or authority.
(3)To enable the substitute decision-maker to make an informed decision about the use of a restrictive practice in the course of providing respite services or community access services to the adult, the relevant service provider must give the substitute decision-maker—
(a)the respite/community access plan for the adult; and
(b)any information used to develop the plan.
(4)If the relevant service provider, acting honestly and without negligence, gives the information to the substitute decision-maker, the relevant service provider is not liable, civilly, criminally or under an administrative process, for giving the information.
(5)Also, merely because the relevant service provider gives the information, the relevant service provider can not be held to have—
(a)breached any code of professional etiquette or ethics; or
(b)departed from accepted standards of professional conduct.
(6)Without limiting subsections (4) and (5)—
(a)in a proceeding for defamation, the relevant service provider has a defence of absolute privilege for publishing the information; and
(b)if the relevant service provider would otherwise be required to maintain confidentiality about the information under an Act, oath or rule of law or practice, the relevant service provider—
(i)does not contravene the Act, oath or rule of law or practice by giving the information; and
(ii)is not liable to disciplinary action for giving the information.
(7)This section does not limit the GAA, section 44.

Note—

The GAA, section 44 enables a guardian to obtain all information the adult would have been entitled to if the adult had capacity and that is necessary for the guardian to make informed decisions.
(8)In this section—
information includes a document.
substitute decision-maker, for an adult, means a guardian for a restrictive practice matter, or an informal decision-maker, for the adult.

Note—

A guardian or informal decision-maker who gains confidential information is subject to confidentiality requirements under the GAA. See the GAA, section 249 for guardians and section 80ZT for informal decision-makers.

s 192 ins 2008 No. 23 s 7

amd 2016 No. 5 s 923 sch 4

193Requirement to keep and implement procedure

(1)This section applies to a relevant service provider, other than a relevant service provider prescribed by regulation, that uses a restrictive practice in relation to an adult with an intellectual or cognitive disability.
(2)The relevant service provider must keep and implement procedures that ensure an individual acting for the relevant service provider who uses the restrictive practice in relation to the adult—
(a)has sufficient knowledge of the requirements for lawful use of the restrictive practice; and
(b)has the skills and knowledge required to use the restrictive practice appropriately.
(3)In this section—
keep and implement, for a procedure, means—
(a)prepare the procedure and keep it up to date; and
(b)implement and comply with the procedures; and
(c)keep a copy of the up-to-date procedure at premises where the restrictive practice is used.

s 193 ins 2014 No. 5 s 32

amd 2019 No. 19 s 26

194Requirement to keep records and other documents

(1)This section applies to a relevant service provider, other than a relevant service provider prescribed by regulation, that is using a restrictive practice in relation to an adult with an intellectual or cognitive disability.
(2)The relevant service provider must make, and keep for the time prescribed under a regulation, the records prescribed under a regulation.
(3)Also, the relevant service provider must keep, at premises where disability services or NDIS supports or services are provided to the adult, a copy of—
(a)if the restrictive practice is used under section 151 or 166—the positive behaviour support plan for the adult; or
(b)if the restrictive practice is used under section 152 or 167—the respite/community access plan for the adult; or
(c)if the restrictive practice is used under section 153 or 170—the short term approval for the adult.
(4)If the restrictive practice is used under a containment or seclusion approval given as an interim order under the GAA, section 80ZR—
(a)subsection (3)(a) does not apply; and
(b)the relevant service provider must keep, at premises where disability services or NDIS supports or services are provided to the adult, a copy of the interim order.

s 194 ins 2008 No. 23 s 7

amd 2014 No. 5 s 33; 2019 No. 19 s 27; 2020 No. 39 s 70 sch 1

195Notification requirements about approvals given for use of restrictive practices

(1)If—
(a)a relevant service provider, other than a relevant service provider prescribed by regulation, is given a limited restrictive practice approval authorising the provider to use a restrictive practice at a service outlet; and
(b)there is no other limited restrictive practice approval in effect relating to the service outlet;

the relevant service provider must, within the required period, give notice in the approved form to the chief executive.

(2)A relevant service provider that has given a notice under subsection (1) must, within the period mentioned in subsection (6), give notice in the approved form to the chief executive if all limited restrictive practice approvals relating to the service outlet stop having effect.
(3)If—
(a)a relevant service provider, other than a relevant service provider prescribed by regulation, is given a restrictive practice approval authorising the provider to use a restrictive practice at a visitable site as defined under the Public Guardian Act 2014, section 39; and
(b)there is no other restrictive practice approval in effect relating to the visitable site;

the relevant service provider must, within the required period, give notice to the public guardian.

(4)For subsection (3), the notice must state—
(a)the name and address of the visitable site; and
(b)that a restrictive practice approval has been given in relation to the visitable site.
(5)A relevant service provider that has given a notice under subsection (3) must, within the period mentioned in subsection (6), give notice to the public guardian if all restrictive practice approvals relating to the visitable site stop having effect.
(6)For subsections (2) and (5), the notice must be given within 21 days after the event mentioned in the subsection happens.
(7)In this section—
limited restrictive practice approval means a restrictive practice approval other than—
(a)a containment or seclusion approval; or
(b)a short term approval given by the public guardian under the GAA, chapter 5B, part 4.
required period means—
(a)if the restrictive practice approval is a short term approval—14 days after the approval is given; or
(b)otherwise—21 days after the restrictive practice approval is given.
restrictive practice approval means—
(a)a containment or seclusion approval; or
(b)consent to use of a restrictive practice given by—
(i)a guardian for a restrictive practice matter; or
(ii)an informal decision-maker; or
(c)a short term approval.
service outlet means a place at which disability services or NDIS supports or services are provided.

s 195 ins 2008 No. 23 s 7

amd 2014 No. 26 s 219; 2019 No. 19 s 28; 2020 No. 39 s 70 sch 1

Subdivision 3 Confidentiality provisions

pt 6 div 7 sdiv 3 hdg ins 2008 No. 23 s 7

196Definitions for sdiv 3

In this subdivision—
chief executive (health) means the chief executive of the department in which the Hospital and Health Boards Act 2011 is administered.

s 196 def chief executive (health) sub 2011 No. 32 s 332 sch 1 pt 2 (amd 2012 No. 9 s 47)

health professional means a person engaged in delivering a private sector health service, including the following—
(a)a registered health practitioner;
(b)any other person, including, for example, an audiologist, dietician, social worker or speech pathologist.

s 196 def health professional amd 2010 No. 5 s 150; 2013 No. 13 s 12

health service chief executive means a health service chief executive under the Hospital and Health Boards Act 2011.

s 196 def health service chief executive ins 2011 No. 32 s 332 sch 1 pt 2 (amd 2012 No. 9 s 47)

private sector health service means a service for maintaining, improving or restoring people’s health and wellbeing, other than a service provided by the State.

s 196 ins 2008 No. 23 s 7

197Relevant service provider may request confidential information from health professional, chief executive (health) or health service chief executive

(1)This section applies if a relevant service provider considers a health professional, the chief executive (health), or a health service chief executive, may hold confidential information about an adult with an intellectual or cognitive disability that is relevant to any of the following being done by the provider—
(a)the assessment of the adult, including the making of a decision about whether to assess the adult;
(b)the development or changing of a positive behaviour support plan for the adult;
(c)the development of a respite/community access plan for the adult.
(2)The relevant service provider may ask the health professional or chief executive (health) for the confidential information.
(3)A health professional or the chief executive (health) who gives confidential information requested under this section and who would otherwise be required to maintain confidentiality about the information under an Act, oath or rule of law or practice—
(a)does not contravene the Act, oath or rule of law or practice by giving the information; and
(b)is not liable to disciplinary action for giving the information.
(4)Also, merely because the health professional or the chief executive (health) gives the confidential information, the person can not be held to have—
(a)breached any code of professional etiquette or ethics; or
(b)departed from accepted standards of professional conduct.

s 197 ins 2008 No. 23 s 7

amd 2011 No. 32 s 332 sch 1 pt 2 (amd 2012 No. 9 s 47); 2014 No. 5 s 34

198Relevant service providers must maintain confidentiality

(1)This section applies if a relevant service provider—
(a)gains confidential information under section 197; or
(b)otherwise gains confidential information in the course of—
(i)assessing an adult with an intellectual or cognitive disability or developing a positive behaviour support plan for the adult; or
(ii)developing a respite/community access plan for an adult with an intellectual or cognitive disability.
(2)The relevant service provider, or an individual acting for the relevant service provider, must not disclose the information to anyone other than under subsection (3).

Maximum penalty—100 penalty units.

(3)The relevant service provider, or an individual acting for the relevant service provider, may disclose the information to someone else—
(a)for this Act; or
(b)to discharge a function under another law; or
(c)for a proceeding in a court or tribunal; or
(d)if authorised under another law or a regulation made under this Act; or
(e)if authorised in writing by the adult with an intellectual or cognitive disability to whom the information relates; or
(f)to protect a person with disability from abuse, neglect or exploitation.

s 198 ins 2008 No. 23 s 7

amd 2014 No. 5 s 35; 2020 No. 39 s 70 sch 1

Subdivision 4 Reporting and provision of particular information

pt 6 div 7 sdiv 4 hdg ins 2014 No. 5 s 36

199Requirement to give information about use of restrictive practice to chief executive

(1)This section applies to a relevant service provider, other than a relevant service provider prescribed by regulation, that is using a restrictive practice in relation to an adult with an intellectual or cognitive disability.
(2)The relevant service provider must give to the chief executive, in the way and at the times prescribed under a regulation, information about the use of the restrictive practice prescribed under a regulation.

s 199 ins 2014 No. 5 s 36

amd 2019 No. 19 s 29

200Chief executive may give information about use of restrictive practice

(1)This section applies to information given to the chief executive by a relevant service provider under section 199.
(2)The chief executive may give the information to any or all of the following—
(a)QCAT;
(b)the public guardian;
(c)the public advocate under the GAA;
(d)the relevant service provider.

s 200 ins 2014 No. 5 s 36 (amd 2014 No. 26 s 226)

Part 6A Investigation, monitoring and enforcement

pt 6A hdg ins 2016 No. 9 s 44

Division 1 Preliminary

pt 6A div 1 hdg ins 2016 No. 9 s 44

200APurpose of part

The purpose of this part is to prescribe particular functions and powers of authorised officers appointed under the Community Services Act 2007.

s 200A ins 2016 No. 9 s 44

200BReferences to exercise of powers

If—
(a)a provision of this part refers to the exercise of a power by an authorised officer; and
(b)there is no reference to a specific power;
the reference is to the exercise of all or any authorised officer’s powers under this part or a warrant, to the extent the powers are relevant.

s 200B ins 2016 No. 9 s 44

200CReference to document includes reference to reproductions from electronic document

A reference in this part to a document includes a reference to an image or writing—
(a)produced from an electronic document; or
(b)not yet produced, but reasonably capable of being produced, from an electronic document, with or without the aid of another article or device.

s 200C ins 2016 No. 9 s 44

Division 2 Functions of authorised officers

pt 6A div 2 hdg ins 2016 No. 9 s 44

200DExisting functions of authorised officers in relation to funding

For this Act and the Community Services Act 2007, section 24(d), the functions of an authorised officer, to the extent the Community Services Act 2007 applies in relation to funding because of section 10 of that Act, include the following—
(a)investigating, monitoring and ensuring compliance with this Act;
(b)investigating or monitoring whether an occasion has arisen for the exercise of powers under the Community Services Act 2007;
(c)facilitating the exercise of powers under the Community Services Act 2007.

Note—

See the Community Services Act 2007, part 4, divisions 3 and 4 for powers an authorised officer may exercise under that Act for the performance of the authorised officer’s functions under this section.

s 200D ins 2016 No. 9 s 44

200EAdditional functions of authorised officers in relation to NDIS service providers

Without limiting section 200D, for this Act and the Community Services Act 2007, section 24(d), an authorised officer also has the functions of—
(a)investigating, monitoring and ensuring compliance of NDIS service providers with a provision of this Act, other than a provision prescribed by regulation (an excluded provision); and
(b)for the purposes of paragraph (a)—
(i)investigating or monitoring whether an occasion has arisen for the exercise of powers under this Act; and
(ii)facilitating the exercise of powers under this Act.

s 200E ins 2016 No. 9 s 44

amd 2019 No. 19 s 30; 2020 No. 39 s 70 sch 1

Division 3 Powers of authorised officers for particular functions

pt 6A div 3 hdg ins 2016 No. 9 s 44

Subdivision 1 Preliminary

pt 6A div 3 sdiv 1 hdg ins 2016 No. 9 s 44

200FApplication of division for particular functions

This division applies for the performance of the functions of an authorised officer mentioned in section 200E.

s 200F ins 2016 No. 9 s 44

Subdivision 2 General power of entry

pt 6A div 3 sdiv 2 hdg ins 2016 No. 9 s 44

200GGeneral power to enter places

(1)An authorised officer may enter a place if—
(a)an occupier of the place consents under subdivision 3 to the entry and section 200J has been complied with for the occupier; or
(b)it is a public place and the entry is made when it is open to the public; or
(c)the entry is authorised under a warrant and, if there is an occupier of the place, section 200Q has been complied with for the occupier; or
(d)it is the place of business of an NDIS service provider and is—
(i)open for carrying on the business; or
(ii)otherwise open for entry.
(2)For subsection (1)(d), a place of business does not include a part of the place where a person resides.
(3)If the power to enter arose only because an occupier of the place consented to the entry, the power is subject to any conditions of the consent and ceases if the consent is withdrawn.
(4)If the power to enter is under a warrant, the power is subject to the terms of the warrant.
(5)In this section—
public place means a place, or part of the place—
(a)the public is entitled to use, that is open to members of the public or that is used by the public, whether or not on payment of money; or

Examples of a place that may be a public place under paragraph (a)—

a beach, a park, a road
(b)the occupier of which allows, whether or not on payment of money, members of the public to enter.

Examples of a place that may be a public place under paragraph (b)—

a saleyard, a showground

s 200G ins 2016 No. 9 s 44

amd 2020 No. 39 s 70 sch 1

Subdivision 3 Entry by consent

pt 6A div 3 sdiv 3 hdg ins 2016 No. 9 s 44

200HApplication of subdivision

This subdivision applies if an authorised officer intends to ask an occupier of a place to consent to the authorised officer or another authorised officer entering the place under section 200G(1)(a).

s 200H ins 2016 No. 9 s 44

200IIncidental entry to ask for access

For the purpose of asking the occupier for the consent, an authorised officer may, without the occupier’s consent or a warrant—
(a)enter land around premises at the place to an extent that is reasonable to contact the occupier; or
(b)enter part of the place the authorised officer reasonably considers members of the public ordinarily are allowed to enter when they wish to contact an occupier of the place.

s 200I ins 2016 No. 9 s 44

200JMatters authorised officer must tell occupier

Before asking for the consent, the authorised officer must give a reasonable explanation to the occupier—
(a)about the purpose of the entry, including the powers intended to be exercised; and
(b)that the occupier is not required to consent; and
(c)that the consent may be given subject to conditions and may be withdrawn at any time.

s 200J ins 2016 No. 9 s 44

200KConsent acknowledgement

(1)If the consent is given, the authorised officer may ask the occupier to sign an acknowledgement of the consent.
(2)The acknowledgement must state—
(a)the purpose of the entry, including the powers to be exercised; and
(b)the following has been explained to the occupier—
(i)the purpose of the entry, including the powers intended to be exercised;
(ii)that the occupier is not required to consent;
(iii)that the consent may be given subject to conditions and may be withdrawn at any time; and
(c)the occupier gives the authorised officer or another authorised officer consent to enter the place and exercise the powers; and
(d)the time and day the consent was given; and
(e)any conditions of the consent.
(3)If the occupier signs the acknowledgement, the authorised officer must immediately give a copy to the occupier.
(4)If—
(a)an issue arises in a proceeding about whether the occupier consented to the entry; and
(b)a signed acknowledgement complying with subsection (2) for the entry is not produced in evidence;
      the onus of proof is on the person relying on the lawfulness of the entry to prove the occupier consented.

s 200K ins 2016 No. 9 s 44

Subdivision 4 Entry under warrant

pt 6A div 3 sdiv 4 hdg ins 2016 No. 9 s 44

200LApplication for warrant

(1)An authorised officer may apply to a magistrate for a warrant for a place.
(2)The authorised officer must prepare a written application that states the grounds on which the warrant is sought.
(3)The written application must be sworn.
(4)The magistrate may refuse to consider the application until the authorised officer gives the magistrate all the information the magistrate requires about the application in the way the magistrate requires.

Example—

The magistrate may require additional information supporting the application to be given by statutory declaration.

s 200L ins 2016 No. 9 s 44

200MIssue of warrant

(1)A magistrate may issue a warrant for a place only if the magistrate is satisfied there are reasonable grounds for suspecting that it is necessary to enter the place to check whether an NDIS service provider has complied with, or is complying with, a provision of this Act, other than an excluded provision.
(2)The warrant must state—
(a)the place to which the warrant applies; and
(b)that a stated authorised officer may, with necessary and reasonable help and force—
(i)enter the place and any other place necessary for the entry; and
(ii)exercise the officer’s powers; and
(c)particulars of the reason it is necessary to enter the place that the magistrate considers appropriate;
(d)the hours of the day or night when the place may be entered; and
(e)the evidence that may be seized under the warrant; and
(f)the magistrate’s name; and
(g)the day and time of the warrant’s issue; and
(h)the day, within 14 days after the warrant’s issue, the warrant ends.

s 200M ins 2016 No. 9 s 44

amd 2019 No. 19 s 31; 2020 No. 39 s 70 sch 1

200NElectronic application

(1)An application under section 200L may be made by phone, fax, email, radio, videoconferencing or another form of electronic communication if the authorised officer reasonably considers it necessary because of—
(a)urgent circumstances; or
(b)other special circumstances, including, for example, the authorised officer’s remote location.
(2)The application—
(a)may not be made before the authorised officer prepares the written application under section 200L(2); but
(b)may be made before the written application is sworn.

s 200N ins 2016 No. 9 s 44

200OAdditional procedure if electronic application

(1)For an application under section 200N, the magistrate may issue the warrant (the original warrant) only if the magistrate is satisfied—
(a)it was necessary to make the application under section 200N; and
(b)the way the application was made under section 200N was appropriate.
(2)After the magistrate issues the original warrant—
(a)if there is a reasonably practicable way of immediately giving a copy of the warrant to the authorised officer, including, for example, by sending a copy by fax or email, the magistrate must immediately give a copy of the warrant to the authorised officer; or
(b)otherwise—
(i)the magistrate must tell the authorised officer the information mentioned in section 200M(2); and
(ii)the authorised officer must complete a form of warrant, including by writing on it the information mentioned in section 200M(2) provided by the magistrate.
(3)The copy of the warrant mentioned in subsection (2)(a), or the form of warrant completed under subsection (2)(b) (in either case the duplicate warrant), is a duplicate of, and as effectual as, the original warrant.
(4)The authorised officer must, at the first reasonable opportunity, send to the magistrate—
(a)the written application complying with section 200L(2) and (3); and
(b)if the authorised officer completed a form of warrant under subsection (2)(b)—the completed form of warrant.
(5)The magistrate must keep the original warrant and, on receiving the documents under subsection (4)—
(a)attach the documents to the original warrant; and
(b)give the original warrant and documents to the clerk of the court of the relevant magistrates court.
(6)Despite subsection (3), if—
(a)an issue arises in a proceeding about whether an exercise of a power was authorised by a warrant issued under this section; and
(b)the original warrant is not produced in evidence;

the onus of proof is on the person relying on the lawfulness of the exercise of the power to prove a warrant authorised the exercise of the power.

(7)This section does not limit section 200L.
(8)In this section—
relevant magistrates court, in relation to a magistrate, means the Magistrates Court that the magistrate constitutes under the Magistrates Act 1991.

s 200O ins 2016 No. 9 s 44

amd 2019 No. 19 s 81 sch 1

200PDefect in relation to a warrant

(1)A warrant is not invalidated by a defect in—
(a)the warrant; or
(b)compliance with section 200L, 200M or 200N;

unless the defect affects the substance of the warrant in a material particular.

(2)In this section—
warrant includes a duplicate warrant mentioned in section 200O(3).

s 200P ins 2016 No. 9 s 44

200QEntry procedure

(1)This section applies if an authorised officer named in a warrant issued under this subdivision for a place is intending to enter the place under the warrant.
(2)Before entering the place, the authorised officer must do or make a reasonable attempt to do the following things—
(a)identify himself or herself to a person who is an occupier of the place and is present by producing a copy of the authorised officer’s identity card or another document evidencing the authorised officer’s appointment;
(b)give the person a copy of the warrant;
(c)tell the person the authorised officer is permitted by the warrant to enter the place;
(d)give the person an opportunity to allow the authorised officer immediate entry to the place without using force.
(3)However, the authorised officer need not comply with subsection (2) if the authorised officer believes on reasonable grounds that entry to the place without compliance is required to ensure the effective execution of the warrant is not frustrated.
(4)In this section—
warrant includes a duplicate warrant mentioned in section 200O(3).

s 200Q ins 2016 No. 9 s 44

Subdivision 5 General powers of authorised officer after entering place

pt 6A div 3 sdiv 5 hdg ins 2016 No. 9 s 44

200RApplication of subdivision

(1)The powers under this subdivision may be exercised if an authorised officer enters a place under section 200G(1)(a), (c) or (d).
(2)However, if the authorised officer enters under section 200G(1)(a) or (c), the powers under this subdivision are subject to any conditions of the consent or terms of the warrant.

s 200R ins 2016 No. 9 s 44

200SGeneral powers

(1)The authorised officer may do any of the following (each a general power)—
(a)search any part of the place;
(b)inspect, examine or film any part of the place or anything at the place;
(c)take for examination a thing, or a sample of or from a thing, at the place;
(d)place an identifying mark in or on anything at the place;
(e)take an extract from, or copy, a document at the place or take the document to another place to copy;
(f)produce an image or writing at the place from an electronic document or, to the extent it is not practicable, take a thing containing an electronic document to another place to produce an image or writing;
(g)take to, into or onto the place and use any person, equipment and materials the authorised officer reasonably requires for exercising the officer’s powers under this subdivision;
(h)confer alone with a person at the place;
(i)require a person at the place to answer questions by the authorised officer to help the authorised officer ascertain whether a provision of this Act, other than an excluded provision, is being or has been complied with;
(j)remain at the place for the time necessary to achieve the purpose of the entry.
(2)The authorised officer may take a necessary step to allow the exercise of a general power.
(3)If the authorised officer takes a document from the place to copy it, the authorised officer must copy the document and return it to the place as soon as practicable.
(4)If the authorised officer takes from the place an article or device reasonably capable of producing a document from an electronic document to produce the document, the authorised officer must produce the document and return the article or device to the place as soon as practicable.
(5)In this section—
examine includes analyse, test, account, measure, weigh, grade, gauge and identify.

s 200S ins 2016 No. 9 s 44

amd 2019 No. 19 s 32

200TPower to require reasonable help

(1)The authorised officer may make a requirement (a help requirement) of an occupier of the place or a person at the place to give the authorised officer reasonable help to exercise a general power, including, for example, to produce a document or to give information.
(2)When making the help requirement, the authorised officer must warn the person it is an offence not to comply with the requirement unless the person has a reasonable excuse.

s 200T ins 2016 No. 9 s 44

200UOffence to contravene help requirement

(1)A person of whom a help requirement is made must comply with the requirement unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(2)It is a reasonable excuse for an individual to not comply with a help requirement if complying might tend to incriminate the individual or expose the individual to a penalty.

s 200U ins 2016 No. 9 s 44

200VFailure to answer questions

(1)A person of whom a requirement is made under section 200S(1)(i) must comply with the requirement, unless the person has a reasonable excuse.

Maximum penalty—40 penalty units.

(2)It is a reasonable excuse for the person to not comply with the requirement if complying with the requirement might tend to incriminate the person.

s 200V ins 2016 No. 9 s 44

Subdivision 6 Additional information-obtaining power

pt 6A div 3 sdiv 6 hdg ins 2016 No. 9 s 44

200WPower to require information

(1)This section applies if an authorised officer reasonably believes an offence against a provision of this Act, other than an excluded provision, has been committed by an NDIS service provider.
(2)The authorised officer may, by notice given to the NDIS service provider, require the service provider to give the authorised officer information related to the offence within a stated reasonable time and in a stated way.
(3)A requirement under subsection (2) is an information requirement.
(4)For information that is an electronic document, compliance with the information requirement requires the giving of a clear image or written version of the electronic document.
(5)The authorised officer may keep information that is a document to copy it.
(6)If the authorised officer copies the document, or an entry in the document, the authorised officer may require the NDIS service provider that has possession or control of the document to certify the copy as a true copy of the document or entry.
(7)A requirement under subsection (6) is a document certification requirement.
(8)The authorised officer must return the document to the NDIS service provider as soon as practicable after copying it.
(9)However, if a document certification requirement is made of a person, the authorised officer may keep the document until the person complies with the requirement.
(10)When making an information requirement or document certification requirement, the authorised officer must warn the NDIS service provider it is an offence not to comply with the requirement unless the service provider has a reasonable excuse.

s 200W ins 2016 No. 9 s 44

amd 2019 No. 19 s 33; 2020 No. 39 s 70 sch 1

200XOffence to contravene information requirement

(1)An NDIS service provider of whom an information requirement is made must comply with the requirement unless the service provider has a reasonable excuse.

Maximum penalty—50 penalty units.

(2)It is a reasonable excuse for an individual to not comply with the information requirement if complying with the requirement might tend to incriminate the individual or expose the individual to a penalty.
(3)If a court convicts a person of an offence against subsection (1), the court may also order the person to give to a stated authorised officer, within a stated time and in a stated way, the information to which the information requirement related.

s 200X ins 2016 No. 9 s 44

amd 2020 No. 39 s 70 sch 1

Part 7 Legal proceedings

pt 7 hdg prev pt 7 hdg om 2014 No. 12 s 56

Division 1 Application

201Application of pt 7

This part applies to a proceeding under this Act.

Division 2 Evidence

202Appointments and authority

The following must be presumed unless a party to the proceeding, by reasonable notice, requires proof of it—
(a)the chief executive’s appointment;
(b)the authority of the chief executive to do anything under this Act.

s 202 amd 2014 No. 12 s 61

203Signatures

A signature purporting to be the signature of the chief executive is evidence of the signature it purports to be.

s 203 amd 2014 No. 12 s 62

204Evidentiary provisions

(1)A certificate purporting to be signed by the chief executive and stating any of the following matters is evidence of the matter—
(a)a stated document is 1 of the following things made, given, issued or kept under this Act—
(i)an appointment, approval or decision;
(ii)a notice or requirement;
(iii)a record, or an extract from a record;
(b)a stated document is another document kept under this Act;
(c)a stated document is a copy of a thing mentioned in paragraph (a) or (b);
(d)on a stated day, a stated entity was given a stated notice under this Act;
(e)on a stated day, a stated requirement was made of a stated person.
(2)In a complaint starting a proceeding, a statement that the matter of complaint came to the complainant’s knowledge on a stated day is evidence of when the matter came to the complainant’s knowledge.

s 204 amd 2014 No. 12 s 63; 2019 No. 19 s 81 sch 1

205Clearance card is evidence of clearance

A clearance card issued to a person is evidence that the person holds a clearance.

s 205 sub 2020 No. 39 s 14

Division 3 Proceedings

206Indictable and summary offences

(1)An offence against this Act is an indictable offence that is a crime if the maximum penalty for the offence is—
(a)500 penalty units or more; or
(b)5 years imprisonment or more.
(2)Otherwise, an offence against this Act is a summary offence.

s 206 prev s 206 om 2013 No. 51 s 29

pres s 206 amd 2020 No. 39 s 15

207Proceedings for indictable offences

(1)A proceeding for an indictable offence against this Act may be taken, at the election of the prosecution—
(a)by way of summary proceedings under the Justices Act 1886; or
(b)on indictment.
(2)A magistrate must not hear an indictable offence summarily if—
(a)the magistrate is satisfied, at any stage of the hearing and after hearing submissions by the prosecution and defence, that because of the nature or seriousness of the offence or any other relevant consideration the defendant, if convicted, may not be adequately punished on summary conviction; or
(b)the magistrate is satisfied, on an application made by the defence, that because of exceptional circumstances the offence should not be heard and decided summarily.
(3)If subsection (2) applies—
(a)the magistrate must proceed by way of an examination of witnesses for an indictable offence; and
(b)a plea of the person charged at the start of the proceeding must be disregarded; and
(c)evidence brought in the proceeding before the magistrate decided to act under subsection (2) is taken to be evidence in the proceeding for the committal of the person for trial or sentence; and
(d)before committing the person for trial or sentence, the magistrate must make a statement to the person as required by the Justices Act 1886, section 104(2)(b).
(4)The maximum penalty that may be summarily imposed for an indictable offence is 100 penalty units or 3 years imprisonment.

s 207 prev s 207 om 2014 No. 12 s 60

pres s 207 amd 2020 No. 39 s 16

208Limitation on who may summarily hear indictable offence proceedings

(1)A proceeding must be before a magistrate if it is a proceeding—
(a)for the summary conviction of a person on a charge for an indictable offence; or
(b)for an examination of witnesses for a charge for an indictable offence.
(2)However, if a proceeding for an indictable offence is brought before a justice who is not a magistrate, jurisdiction is limited to taking or making a procedural action or order within the meaning of the Justices of the Peace and Commissioners for Declarations Act 1991.

s 208 amd 2009 No. 24 s 65

prev s 208 om 2014 No. 12 s 60

209Proceeding for offences

A proceeding for an offence against this Act, other than an indictable offence, must be taken in a summary way under the Justices Act 1886.

s 209 prev s 209 om 2014 No. 12 s 60

210When proceeding may start

A proceeding for a summary offence against this Act must start within the later of the following periods to end—
(a)1 year after the commission of the offence;
(b)6 months after the offence comes to the complainant’s knowledge, but within 2 years after the offence is committed.

s 210 amd 2009 No. 24 s 67

prev s 210 om 2014 No. 12 s 60

211Allegations of false or misleading information or document

In any proceeding for an offence against this Act defined as involving false or misleading information, or a false or misleading document, it is enough for a charge to state that the information or document was, without specifying which, ‘false or misleading’.

s 211 amd 2009 No. 24 s 68

prev s 211 om 2014 No. 12 s 60

212Forfeiture on conviction

(1)On conviction of a person for an offence against this Act, a court may order the forfeiture to the State of—
(a)anything used to commit the offence; or
(b)anything else the subject of the offence.
(2)The court may make the order—
(a)whether or not the thing has been seized; and
(b)if the thing has been seized, whether or not the thing has been returned to its owner.
(3)The court may make any order to enforce the forfeiture it considers appropriate.
(4)This section does not limit the court’s powers under the Penalties and Sentences Act 1992 or another law.

s 212 sub 2009 No. 24 s 70

prev s 212 om 2014 No. 12 s 60

213Dealing with forfeited thing

(1)On the forfeiture of a thing to the State, the thing becomes the State’s property and may be dealt with by the State as the State considers appropriate.
(2)Without limiting subsection (1), the State may destroy the thing.

s 213 prev s 213 om 2009 No. 24 s 71

214Responsibility for acts or omissions of representative

(1)This section applies in a proceeding for an offence against this Act.
(2)If it is relevant to prove a person’s state of mind about a particular act or omission, it is enough to show—
(a)the act was done or omitted to be done by a representative of the person within the scope of the representative’s actual or apparent authority; and
(b)the representative had the state of mind.
(3)An act done or omitted to be done for a person by a representative of the person within the scope of the representative’s actual or apparent authority is taken to have been done or omitted to be done also by the person, unless the person proves the person could not, by the exercise of reasonable diligence, have prevented the act or omission.
(4)In this section—
representative means—
(a)for a corporation—an executive officer, employee or agent of the corporation; or
(b)for an individual—an employee or agent of the individual.
state of mind of a person includes—
(a)the person’s knowledge, intention, opinion, belief or purpose; and
(b)the person’s reasons for the intention, opinion, belief or purpose.

Part 8 Miscellaneous

pt 8 hdg prev pt 8 hdg om 2014 No. 12 s 56

Division 1 Records

215Funded service provider or NDIS service provider must keep records

A funded service provider or an NDIS service provider must make, and keep for the time prescribed under a regulation, the records prescribed under a regulation.

Maximum penalty—

(a)for an individual guilty under chapter 2 of the Criminal Code of an offence—20 penalty units; or
(b)for a funded service provider—100 penalty units.

s 215 amd 2013 No. 51 s 30; 2016 No. 9 s 45; 2020 No. 39 s 70 sch 1

Division 2 Locking of gates, doors and windows

pt 8 div 2 hdg ins 2008 No. 23 s 8

216Application of division

(1)This division—
(a)applies in relation to the following service providers that provide disability services or NDIS supports or services to an adult with an intellectual or cognitive disability—
(i)an NDIS service provider;
(ii)a funded service provider;
(iii)the department;
(iv)another service provider prescribed by regulation for this section; and
(b)applies if—
(i)a service provider in relation to which this division applies locks gates, doors or windows at premises where disability services or NDIS supports or services are provided to adults with an intellectual or cognitive disability; and
(ii)the only reason the gates, doors or windows are locked is to prevent physical harm being caused to an adult with a skills deficit.
(2)However, this part does not apply in relation to a service provider—
(a)prescribed by regulation; or
(b)to the extent the service provider is providing disability services or NDIS supports or services prescribed by regulation.
(3)A service provider is a division 2 service provider to the extent this division applies in relation to the provider under subsections (1)(a) and (2).

s 216 ins 2008 No. 23 s 8

sub 2019 No. 19 s 34

amd 2020 No. 39 s 17

217Definitions for division

In this division—
adult with an intellectual or cognitive disability see section 144.
adult with a skills deficit means an adult with an intellectual or cognitive disability who can not safely exit premises where disability services or NDIS supports or services are provided to the adult without supervision, if the only reason the adult can not safely exit the premises without supervision is—
(a)the adult lacks road safety skills; or
(b)the adult is vulnerable to abuse or exploitation by others; or
(c)the adult is unable to find his or her way back to the premises; or
(d)another reason prescribed under a regulation.

s 217 def adult with a skills deficit amd 2020 No. 39 s 70 sch 1

division 2 service provider see section 216(3).

s 217 def division 2 service provider ins 2019 No. 19 s 35(2)

relevant service provider ...

s 217 def relevant service provider om 2019 No. 19 s 35(1)

s 217 ins 2008 No. 23 s 8

amd 2020 No. 39 s 70 sch 1

218Immunity from liability—division 2 service provider

(1)A division 2 service provider is not civilly or criminally liable for locking gates, doors or windows if—
(a)the division 2 service provider acts honestly and without negligence; and
(b)the division 2 service provider keeps and implements a policy about the locking of gates, doors and windows that is consistent with the department’s policy about the locking of gates, doors and windows; and
(c)the gates, doors or windows are locked in compliance with the policy; and
(d)the division 2 service provider takes reasonable steps to minimise the impact of locking the gates, doors or windows on a person living at the premises who is not an adult with a skills deficit.
(2)Subsection (1) applies to the extent the locking of the gates, doors or windows prevents the free exit from the premises of—
(a)an adult with a skills deficit; or
(b)any other person living at the premises, other than an adult with an intellectual or cognitive disability who is contained within the meaning of part 6.
(3)In this section—
keep and implement, for a policy, means—
(a)prepare the policy and keep it up to date; and
(b)when providing disability services or NDIS supports or services, implement and comply with the procedures and other matters stated in the policy; and
(c)keep a copy of the up-to-date policy at the premises.

s 218 ins 2008 No. 23 s 8

amd 2019 No. 19 s 36; 2020 No. 39 s 70 sch 1

219Immunity from liability—individual acting for division 2 service provider

An individual, acting for a division 2 service provider, is not civilly or criminally liable for locking gates, doors or windows if the individual acts in compliance with, or reasonably believes he or she is acting in compliance with, the provider’s policy about the locking of gates, doors and windows.

s 219 ins 2008 No. 23 s 8

amd 2019 No. 19 s 37

220Department’s policy about locking of gates, doors and windows

(1)The department must have a policy about the locking of gates, doors and windows under this division.
(2)The policy must outline the procedures a division 2 service provider will use to ensure gates, doors and windows are locked only if it is—
(a)necessary to prevent physical harm to an adult with a skills deficit; and
(b)the least restrictive way of ensuring the adult’s safety as is practicable in the circumstances.
(3)Also, the policy must ensure appropriate regard is had to linguistic and cultural diversity and Aboriginal tradition and Island custom.

Editor’s note—

For definitions Aboriginal tradition and Island custom, see the Acts Interpretation Act 1954, section 36.
(4)The chief executive must keep a copy of the policy available for inspection free of charge by division 2 service providers at—
(a)the department’s head office and regional offices; and
(b)other places the chief executive considers appropriate.
(5)Also, the chief executive must publish the policy on the department’s website on the internet.

s 220 ins 2008 No. 23 s 8

amd 2019 No. 19 s 38

Division 2A [Expired]

pt 8 div 2A hdg ins 2020 No. 16 s 19

exp 31 December 2020 (see s 220C)

220A [Expired]

s 220A ins 2020 No. 16 s 19

exp 31 December 2020 (see s 220C)

220B [Expired]

s 220B ins 2020 No. 16 s 19

exp 31 December 2020 (see s 220C)

220C [Expired]

s 220C ins 2020 No. 16 s 19

exp 31 December 2020 (see s 220C)

Division 3 Other matters

221Disability service plans for departments

(1)The chief executive of a department must develop and implement disability service plans for the chief executive’s department.
(2)The first plan must be developed and implemented within 1 year after the commencement of this section.
(3)A further plan must be developed and implemented at least once every 3 years.
(4)The purpose of a plan is to ensure each department has regard to the following to the extent they reasonably apply to the department’s operations—
(a)the human rights principle;
(b)the service delivery principles;
(c)the government’s policies for people with disability.
(5)In developing a disability service plan, the chief executive of a department must consult with the following to ensure the chief executive’s plan forms part of a coordinated whole-of-government approach for service delivery to people with disability—
(a)the chief executive of the department in which this Act is administered;
(b)the chief executives of other departments.
(6)The plan must, for the period of the plan—
(a)identify the issues relating to service delivery to people with disability by the department; and
(b)state the way the issues will be addressed; and
(c)state the way the chief executive of a department is to consult with other chief executives to achieve the whole-of-government approach mentioned in subsection (5).
(7)The chief executive of a department must publish the current disability service plan for the department on the department’s website on the internet.
(8)Despite thePublic Service Act 2008, section 22, this section does not apply to a public service office.

s 221 amd 2009 No. 25 s 83 sch; 2020 No. 39 s 70 sch 1

222Establishment of Ministerial advisory committees

The Minister may establish—
(a)a committee to advise on the system that deals with complaints received from the following—
(i)consumers;
(ii)family members, carers or advocates of consumers; and
(b)as many other committees to advise on disability issues, disability services and NDIS supports or services as the Minister considers appropriate.

s 222 amd 2020 No. 39 s 18

223Membership of advisory committee

(1)An advisory committee has the membership decided by the Minister.
(2)The Minister may appoint the following persons to an advisory committee—
(a)a person with disability;
(b)a family member or carer of a person with disability;
(c)another person the Minister considers has expertise or experience relevant to people with disability.

s 223 amd 2020 No. 39 s 70 sch 1

224Dissolution

The Minister may dissolve an advisory committee at any time.

225Other matters

The Minister may decide matters about an advisory committee that are not provided for under this Act, including, for example, the way a committee must conduct meetings or report to the Minister.

226Person with disability must advise chief executive about compensation

(1)This section applies to a person with disability who, in relation to the disability—
(a)is applying for, or is receiving—
(i)funding for disability services from the department; or
(ii)disability services from another entity the person knows is a funded service provider; and
(b)has received, or may receive, an amount relating to the disability.
(2)The person must notify the chief executive in the approved form—
(a)if action has been taken to claim an amount relating to the disability—of the type of action taken; and
(b)if an amount has been paid—of the date it was paid and the amount; and
(c)if part or all of the amount relates to future care—of the amount that relates to future care.

Maximum penalty—200 penalty units.

(3)Subsection (4) applies to a person who, on behalf of a person with disability, applies for—
(a)funding for disability services from the department; or
(b)disability services from another entity the person applying knows is a funded service provider.
(4)The person who applies for funding on behalf of a person with disability must notify the chief executive in the approved form of the matters mentioned in subsection (2).

Maximum penalty—200 penalty units.

(5)In this section—
an amount relating to the disability includes an amount relating to the disability resulting from any of the following—
(a)a proceeding in a court;
(b)action taken for compensation under the Workers’ Compensation and Rehabilitation Act 2003 or an Act or law of another State, a Territory or the Commonwealth corresponding to that Act;
(c)an insurance claim;
(d)any other action taken under the common law or under an Act or law of a State or Territory or the Commonwealth.

s 226 amd 2019 No. 19 s 39; 2020 No. 39 s 70 sch 1

227Confidentiality of police, disciplinary, mental health and other protected information

(1)This section applies to a person who—
(a)is or has been a public service employee employed in the department; and
(b)in that capacity, was given, or given access to, protected information about another person.
(2)The following information is protected information about a person—
(a)police information about the person and information related to the police information;
(b)domestic violence information about the person and information related to the domestic violence information;
(c)disciplinary information about the person;
(d)NDIS disciplinary or misconduct information about the person;
(e)information about the person’s mental health, including, for example, information given to the chief executive under part 5, division 8, subdivision 6;
(f)other information about the person given to the chief executive to help the chief executive decide whether the person poses an unacceptable risk of harm to people with disability, including information about the person given to the chief executive—
(i)by the NDIS commission; or
(ii)by an NDIS worker screening unit; or
(iii)by a prescribed entity under section 138R.
(3)The person must not use the protected information, or disclose or give access to the protected information to anyone else, unless the use, disclosure or giving of access is allowed under subsection (4).

Maximum penalty—100 penalty units or 2 years imprisonment.

(4)The person may use the protected information, or disclose or give access to the protected information to another person, if the use, disclosure or giving of access—
(a)is for the performance of the chief executive’s screening functions; or
(b)is expressly permitted under part 5; or
(c)happens with the consent of the person to whom the information relates; or
(d)is otherwise required under an Act.

s 227 amd 2010 No. 5 s 151; 2019 No. 19 s 40

sub 2020 No. 39 s 19

228Confidentiality of other information

(1)This section applies to confidential information other than protected information under section 227(2).
(2)If a person gains confidential information through involvement in this Act’s administration, the person must not disclose the information to anyone, other than under subsection (4), (5) or (6).

Maximum penalty—100 penalty units.

(3)A person gains information through involvement in this Act’s administration if the person gains the information because of being, or an opportunity given by being—
(a)the chief executive; or
(b)an employee in the department; or
(c)a person contracted by the chief executive to provide disability services or NDIS supports or services for the department; or
(d)a person contracted by the department for the purpose of conducting a multidisciplinary assessment, or developing a positive behaviour support plan, under part 6, division 3; or
(e)a person authorised by the chief executive to carry out research related to the objects of this Act; or
(f)a member of a Ministerial advisory committee.
(4)A person may disclose information to someone else—
(a)for administering, monitoring or enforcing compliance with, this Act; or
(b)to discharge a function under another law; or
(c)for a proceeding in a court or tribunal; or
(d)if authorised under another law or a regulation made under this Act; or
(e)if—
(i)the person is authorised in writing by the person to whom the information relates; and
(ii)the person to whom the information relates is an adult when the authorisation is given; or
(f)to protect a person with disability from abuse, neglect or exploitation.
(5)Also, a person may disclose information to—
(a)another department, a funded service provider, an NDIS service provider or another entity to enable the department, service provider or entity to provide for the needs of a person with disability; or
(b)the Commonwealth or another entity for the purposes of an agreement with the Commonwealth.
(6)The chief executive may—
(a)disclose information to the NDIS commissioner if satisfied the disclosure would assist in the performance of the commissioner’s functions under the National Disability Insurance Scheme Act 2013 (Cwlth); or
(b)disclose information to an entity responsible for the administration or enforcement of a corresponding law if satisfied the disclosure would assist in the performance of the entity’s functions relating to the corresponding law.

s 228 amd 2008 No. 23 s 9; 2014 No. 12 s 64;2016 No. 9 s 46; 2019 No. 19 s 41; 2020 No. 39 ss 20, 70 sch 1

229Power to require information or documents

(1)The chief executive may give notice to a funded service provider or an NDIS service provider requiring the service provider to give the chief executive, within a stated reasonable time, information or a document relating to the provision of disability services or NDIS supports or services to consumers of the service provider.
(2)The funded service provider or NDIS service provider must comply with the notice.
(3)For a requirement to give a document, the funded service provider or NDIS service provider may comply with the requirement by giving a copy of the document certified as a true copy of the document.

s 229 amd 2016 No. 9 s 47; 2020 No. 39 s 21

230Protection from liability for giving information

(1)This section applies to the giving of information to the chief executive, by a funded service provider or an NDIS service provider under this Act.
(2)A funded service provider or an NDIS service provider, or a person on behalf of the service provider, may give the information despite any other law that would otherwise prohibit or restrict the giving of the information.
(3)If a person, acting honestly on reasonable grounds, gives the information to the chief executive, the person is not liable, civilly, criminally or under an administrative process, for giving the information.
(4)Also, merely because the person gives the information, the person can not be held to have—
(a)breached any code of professional etiquette or ethics; or
(b)departed from accepted standards of professional conduct.
(5)Without limiting subsections (3) and (4)—
(a)in a proceeding for defamation, the person has a defence of absolute privilege for publishing the information; and
(b)if the person would otherwise be required to maintain confidentiality about the information under an Act, oath or rule of law or practice, the person—
(i)does not contravene the Act, oath or rule of law or practice by giving the information; and
(ii)is not liable to disciplinary action for giving the information.
(6)In this section—
information includes a document.

s 230 amd 2016 No. 9 s 48; 2020 No. 39 s 70 sch 1

231Chief executive to advise on-disclosure

(1)This section applies to information or a document that the chief executive has obtained from a funded service provider or an NDIS service provider under section 229.
(2)The chief executive must advise the funded service provider or NDIS service provider before giving the information or document to another entity, unless the chief executive considers that doing so would not be in the best interests of a consumer to whom the information or document relates.

s 231 amd 2016 No. 9 s 49; 2020 No. 39 s 70 sch 1

232[Repealed]

s 232 om 2020 No. 39 s 22

233Chief executive may enter into arrangements about giving and receiving information about eligible persons

(1)The purpose of this section is to facilitate the monitoring and reconciliation of funding under this Act and other Acts, including the National Disability Insurance Scheme Act 2013 (Cwlth), by sharing information about persons who may be eligible persons.
(2)If the chief executive requests auditing information about persons who may be eligible persons from the chief executive of another department, the other chief executive must comply with the request.
(3)To facilitate the giving of auditing information about persons who may be eligible persons, the chief executive and the chief executive of the other department may enter into a written arrangement by which the auditing information is given or received.
(4)Without limiting subsection (3), the arrangement may provide for the electronic transfer of auditing information about persons who may be eligible persons.
(5)However, if auditing information about persons who may be eligible persons is to be electronically transferred and, under this Act, there is a limitation on who may access the information or the purposes for which the information may be used, the arrangement must provide for the limitation.
(6)Without limiting section 228(5), the chief executive may disclose to the chief executive of another department under the arrangement mentioned in subsection (3) the fact that an eligible person has become, or will not become, a participant under the National Disability Insurance Scheme Act 2013 (Cwlth).
(7)In this section—
auditing information, about a person who may be an eligible person, means each of the following—
(a)the person’s full name;
(b)the person’s unique agency client identifier, if any;
(c)the person’s date of birth;
(d)the person’s gender;
(e)the person’s residential address;
(f)the name and full contact details of the person’s carer or guardian and details of any relationship between the person and the person’s carer or guardian.
eligible person means a person receiving services funded or delivered by a department who may meet the access criteria under the National Disability Insurance Scheme Act 2013 (Cwlth), section 21.

s 233 ins 2014 No. 12 s 65

sub 2016 No. 9 s 50

amd 2019 No. 19 s 81 sch 1; 2020 No. 39 s 70 sch 1

234Delegation by Minister

(1)The Minister may delegate the Minister’s powers under this Act to an appropriately qualified person who is a public service employee.
(2)However, the Minister must not delegate the review of the Act under section 240.

s 234 amd 2014 No. 12 s 66

235Delegation by chief executive

The chief executive may delegate the chief executive’s powers under this Act to an appropriately qualified person who is a public service employee.

s 235 amd 2014 No. 12 s 67

236Protecting officials from liability

(1)An official is not civilly liable for an act done, or omission made, honestly and without negligence under this Act.
(2)If subsection (1) prevents a civil liability attaching to an official, the liability attaches instead to the State.
(3)In this section—
official means—
(a)the Minister; or
(b)the chief executive; or
(c)a public service employee; or
(d)a member of a Ministerial advisory committee; or
(e)a person acting under the direction of an official.

s 236 amd 2014 No. 12 s 68

237Approval of forms

The chief executive may approve forms for use under this Act.

238Service of documents

(1)If a document is required or permitted under this Act to be given to a person, the document may be given to the person by fax transmission directed and sent to—
(a)the last fax number given to the giver of the document by the person as the facsimile transmission number for service of documents on the person; or
(b)the fax transmission number operated—
(i)at the address of the person last known to the giver of the document; or
(ii)if the person is a corporation, at the corporation’s registered office under the Corporations Act.
(2)A document given under subsection (1) is taken to have been given on the day the document is transmitted.

239Regulation-making power

(1)The Governor in Council may make regulations under this Act.
(2)A regulation may—
(a)provide for arrangements between the chief executive and the chief executive (working with children) in relation to receiving, withdrawing, dealing with and deciding combined applications; and
(b)prescribe fees payable under this Act, the matters for which fees are payable and provide for the refund or waiver of the fees; and
(c)impose a penalty of not more than 20 penalty units for a contravention of a provision of a regulation.

s 239 amd 2019 No. 19 s 42; 2020 No. 39 s 23

240Review of Act

The Minister must review the efficacy and efficiency of this Act as soon as practicable after the end of 5 years after the commencement of this section.

241Review of Guardianship and Administration Act 2000, ch 5B

When the Minister conducts the review required under section 240, the Minister and the Minister responsible for administering the Guardianship and Administration Act 2000, acting jointly, must review the efficacy and efficiency of chapter 5B of that Act.

s 241 ins 2008 No. 23 s 10

241AReview of impact of NDIS on Act

(1)The Minister must review the efficacy and efficiency of this Act in the light of amendments of the Act made by the Disability Services and Other Legislation Amendment Act 2016.
(2)The review must be completed by 30 June 2019.

s 241A ins 2016 No. 9 s 51

241AAReview of particular matters

(1)The Minister must review—
(a)section 32A; and
(b)section 140; and
(c)the chief executive’s functions under part 6, division 3, subdivisions 2 and 3; and
(d)section 216.
(2)The review must be completed within 1 year after the commencement.

s 241AA ins 2019 No. 19 s 43

241B[Repealed]

s 241B ins 2016 No. 9 s 51

om 2019 No. 19 s 44

Part 9 Repeal and transitional provisions

pt 9 hdg prev pt 9 hdg om 2010 No. 5 s 83

Division 1 Repeal

pt 9 div 1 hdg prev div 1 hdg om 2010 No. 5 s 83

242Repeal of Disability Services Act 1992

The Disability Services Act 1992 No. 24 is repealed.

Division 2 Transitional provisions for Act No. 12 of 2006

pt 9 div 2 hdg prev div 2 hdg om 2010 No. 5 s 83

pres div 2 hdg amd 2008 No. 23 s 11

sub 2008 No. 55 s 150 sch

243Definitions for div 2

In this division—
commencement means the commencement of this part.
repealed Act means the Disability Services Act 1992.

244Screening of persons engaged by funded non-government service providers at the commencement

(1)This section applies to a funded non-government service provider who is engaging a person at a service outlet of the service provider at the commencement.
(2)Section 65 does not apply to the continued engagement of the person until the earliest of the following—
(a)the end of the period after the commencement prescribed under a regulation;
(b)if an application for a prescribed notice about the person is made within that period and is not withdrawn—the day a prescribed notice is issued to the person;
(c)if an application for a prescribed notice about a person is made within that period and is withdrawn—the day of the withdrawal.
(3)For subsection (2)(a), a regulation must—
(a)name each funded non-government service provider; and
(b)assign a category to the service provider; and
(c)state the period after the commencement, not exceeding 6 months, that applies to the category.
(4)The category must relate to the type of disability services provided by the service provider and is for the purposes of this section only.
(5)A particular category may be assigned to a funded non-government service provider even though the service provider also falls within another category.

245Certain non-government service providers taken to be approved under part 6 and to be funded non-government service providers

(1)This section applies to a non-government service provider that, at the commencement, is receiving financial assistance under the repealed Act that is recurrent funding.
(2)The service provider is, from the commencement, taken to be—
(a)an approved non-government service provider for this Act; and
(b)a funded non-government service provider for this Act.

Note—

The definition approved non-government service provider and part 6 were omitted from this Act by the Communities Legislation (Funding Red Tape Reduction) Amendment Act 2014.

s 245 amd 2014 No. 12 s 69

246When grants of financial assistance under the repealed Act continue

(1)This section applies to a non-government service provider that, at the commencement, is receiving financial assistance under the repealed Act that is recurrent funding.
(2)Subject to subsection (4), the service provider may continue to receive recurrent funding under this Act.
(3)If the service provider has, before the commencement, signed an agreement under the repealed Act known as a general service agreement, that agreement is taken to be a funding agreement under this Act.

Note—

The definition funding agreement was omitted from this Act by the Communities Legislation (Funding Red Tape Reduction) Amendment Act 2014.
(4)If the service provider has not signed a general service agreement before the commencement, funding must stop 3 months after the commencement unless—
(a)the Minister approves funding under this Act; and
(b)a funding agreement is signed by the service provider.
(5)No compensation is payable to a service provider if funding to the service provider stops under subsection (4).

s 246 amd 2014 No. 12 s 70

247Queensland disability service standards to continue in force

(1)The prescribed standards are taken to be service standards made and notified under this Act and take effect for this Act from the commencement.

Note—

The definition service standards was omitted from this Act by the Communities Legislation (Funding Red Tape Reduction) Amendment Act 2014.
(2)The prescribed standards may be amended and repealed under this Act.
(3)In this section—
prescribed standards means the standards called the Queensland disability service standards that were approved by the Minister administering the Disability Services Act 1992 in December, 2003.

s 247 amd 2014 No. 12 s 71

248Disability sector quality system to continue in force

(1)The prescribed system is taken to be the disability sector quality system approved under this Act and takes effect for this Act from the commencement.

Note—

The definition disability sector quality system was omitted from this Act by the Communities Legislation (Funding Red Tape Reduction) Amendment Act 2014.
(2)The Minister may approve an amendment of, or the repeal of, the prescribed system under this Act.
(3)Subsection (4) applies if—
(a)the Minister administering the Disability Services Act 1992 has approved an entity as being suitable to accredit another entity for the purpose of the other entity deciding whether a service provider has met the service standards for the prescribed system; and
(b)the approval is in force immediately before the commencement.
(4)The entity is taken to be an entity approved under section 38.
(5)The Minister may revoke the approval of the entity.
(6)In this section—
prescribed system means the process called the disability sector quality system that was approved by the Minister administering the Disability Services Act 1992 in June, 2004.

s 248 amd 2014 No. 12 s 72

Division 3 Transitional provisions for Disability Services and Other Legislation Amendment Act 2008 and Justice and Other Legislation Amendment Act 2010

pt 9 div 3 hdg prev div 3 hdg om 2010 No. 5 s 83

pres div 3 hdg ins 2008 No. 23 s 12

amd 2010 No. 42 s 27

Subdivision 1 Preliminary

pt 9 div 3 sdiv 1 hdg ins 2008 No. 23 s 12

249Interpretation

(1)In this division—
authorised guardian, for an adult with an intellectual or cognitive disability in relation to a restrictive practice, means a guardian for the adult—
(a)appointed before the commencement under the Guardianship and Administration Act 2000; and
(b)who is authorised under that Act, in accordance with the terms of the guardian’s appointment, to make decisions about the use of the restrictive practice in relation to the adult.

Note—

See also the GAA, section 265.
commencement means the commencement of this division.
compliance period means—
(a)if the restrictive practice used is containment or seclusion or restricting access—6 months from the day the relevant service provider first uses the restrictive practice in relation to the adult on or after the commencement; or
(b)if the restrictive practice used is chemical, mechanical or physical restraint—9 months from the day the relevant service provider first uses the restrictive practice in relation to the adult on or after the commencement.
previous service provider means—
(a)the State, to the extent the State provided disability services for adults with an intellectual or cognitive disability before the commencement; or
(b)a person other than the State who provided disability services funded by the State for adults with an intellectual or cognitive disability before the commencement.
transitional period means the period starting on the commencement and ending 33 months after the commencement.

s 249 def transitional period amd 2010 No. 42 s 28 (retro)

(2)If the context permits, terms used in this division that are defined for part 6 have the meanings given for part 6.

s 249 ins 2008 No. 23 s 12

amd 2009 No. 48 s 214

250Declaration about transitional period

To remove doubt, it is declared that for all purposes, including for anything done in relation to the transitional period, the transitional period includes, and is taken to have always included, the period from after 30 September 2010 until the commencement of this section.

s 250 ins 2010 No. 42 s 29

Subdivision 2 Immunity from liability for use of restrictive practices before commencement

pt 9 div 3 sdiv 2 hdg ins 2008 No. 23 s 12

251Immunity of previous service provider

A previous service provider is not criminally or civilly liable for using a restrictive practice before the commencement in relation to an adult with an intellectual or cognitive disability if—
(a)the previous service provider acted honestly and without negligence; and
(b)using the restrictive practice was—
(i)necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(ii)the least restrictive way of ensuring the safety of the adult or others; and
(c)within a reasonable time before using the restrictive practice, the previous service provider assessed the adult to identify—
(i)the nature and causes of the adult’s behaviour that caused harm to the adult or others; and
(ii)strategies for managing the adult’s behaviour that caused harm to the adult or others, and for meeting the adult’s needs; and
(d)the previous service provider carried out monitoring in relation to use of the restrictive practice to ensure the safety of the adult.

s 251 ins 2008 No. 23 s 12

252Immunity of individual acting for previous service provider

(1)This section applies to an individual who, acting for a previous service provider before the commencement, used a restrictive practice in relation to an adult with an intellectual or cognitive disability.
(2)The individual is not criminally or civilly liable for using the restrictive practice if—
(a)the individual acted honestly and without negligence; and
(b)use of the restrictive practice was necessary, or the individual reasonably believed use of the restrictive practice was necessary, to prevent the adult’s behaviour causing harm to the adult or others.

s 252 ins 2008 No. 23 s 12

Subdivision 3 Immunity from liability for use of restrictive practices during transitional period

pt 9 div 3 sdiv 3 hdg ins 2008 No. 23 s 12

253Immunity of relevant service provider

(1)A relevant service provider is not criminally or civilly liable for using a restrictive practice during the transitional period in relation to an adult with an intellectual or cognitive disability if—
(a)the relevant service provider acts honestly and without negligence; and
(b)use of the restrictive practice is—
(i)necessary to prevent the adult’s behaviour causing harm to the adult or others; and
(ii)the least restrictive way of ensuring the safety of the adult or others; and
(c)either—
(i)if there is an authorised guardian for the adult in relation to the restrictive practice—the restrictive practice is used in compliance with the consent of the authorised guardian; or
(ii)otherwise—the relevant service provider complies with section 254; and
(d)the relevant service provider carries out monitoring in relation to use of the restrictive practice to ensure the safety of the adult; and
(e)for containment or seclusion—within 60 days after first containing or secluding the adult on or after the commencement, the relevant service provider gives notice to the chief executive in the approved form of the containment or seclusion of the adult; and
(f)from the first day after the end of the compliance period until the last day of the transitional period—the relevant service provider keeps and implements a policy about use of the restrictive practice during the transitional period that is consistent with the department’s policy about use of the restrictive practice mentioned in section 258.
(2)Subsection (1)(b) to (d) does not apply if the restrictive practice is chemical restraint (fixed dose) used in the course of providing respite services to the adult.
(3)This section is subject to section 257.

s 253 ins 2008 No. 23 s 12

254Requirement to assess adult if no authorised guardian

For section 253(1)(c)(ii), the requirements are that the relevant service provider must, during the compliance period, assess the adult to identify—
(a)the nature and causes of the adult’s behaviour that causes harm to the adult or others; and
(b)strategies for managing the adult’s behaviour that causes harm to the adult or others, and for meeting the adult’s needs.

s 254 ins 2008 No. 23 s 12

255Immunity for individual acting for relevant service provider

(1)This section applies to an individual who, acting for a relevant service provider during the transitional period, uses a restrictive practice in relation to an adult with an intellectual or cognitive disability.
(2)The individual is not criminally or civilly liable for using the restrictive practice if—
(a)the individual acts honestly and without negligence; and
(b)use of the restrictive practice is necessary, or the individual reasonably believes use of the restrictive practice is necessary, to prevent the adult’s behaviour causing harm to the adult or others.
(3)Subsection (2)(b) does not apply if the restrictive practice is chemical restraint (fixed dose) used in the course of providing respite services to the adult.
(4)This section is subject to section 257.

s 255 ins 2008 No. 23 s 12

256Relationship of subdivision with pt 6

This subdivision does not limit part 6.

s 256 ins 2008 No. 23 s 12

257Circumstances in which subdivision stops applying

(1)This section provides for the circumstances in which this subdivision stops applying to the use of a restrictive practice by a relevant service provider in relation to an adult with an intellectual or cognitive disability.
(2)If the restrictive practice is not used in the course of providing respite services or community access services to the adult, the circumstances are—
(a)for a restrictive practice considered by the tribunal—the tribunal gives, or refuses to give, an approval under the Guardianship and Administration Act 2000, section 80V or 80X authorising the relevant service provider to use the restrictive practice in relation to the adult; or
(b)for chemical, mechanical or physical restraint—a guardian for a restrictive practice (general) matter for the adult gives, or refuses to give, consent to use of the restrictive practice by the relevant service provider; or
(c)for restricting access—a guardian for a restrictive practice (general) matter, or an informal decision-maker, for the adult gives, or refuses to give, consent to use of the restrictive practice by the relevant service provider.
(3)If the restrictive practice is used in the course of providing respite services or community access services to the adult, the circumstances are a guardian for a restrictive practice (respite) matter, or an informal decision-maker, for the adult gives, or refuses to give, consent to use of the restrictive practice by the relevant service provider.

s 257 ins 2008 No. 23 s 12

amd 2009 No. 24 s 72; 2010 No. 5 s 152

Subdivision 4 Other provisions

pt 9 div 3 sdiv 4 hdg ins 2008 No. 23 s 12

258Requirements for department’s policy about use of restrictive practices during transitional period

(1)The department must have a policy about use of each type of restrictive practice during the transitional period.
(2)The policy must outline the procedures a relevant service provider must use to—
(a)if the relevant service provider is required to comply with section 254—assess an adult with an intellectual or cognitive disability; and
(b)ensure an individual acting for the relevant service provider who uses the restrictive practice in relation to the adult—
(i)has sufficient knowledge of the requirements for lawful use of the restrictive practice; and
(ii)has the skills and knowledge required to use the restrictive practice appropriately; and
(c)monitor use of the restrictive practice to safeguard against abuse, neglect or exploitation; and
(d)review use of the restrictive practice at least once every 9 months; and
(e)if the policy is about restricting access—minimise the impact on other persons living at the premises.
(3)Subsection (2) does not limit the matters that may be stated in the policy.
(4)The policy must ensure appropriate regard is had to linguistic and cultural diversity and Aboriginal tradition and Island custom.

Editor’s note—

For definitions Aboriginal tradition and Island custom, see the Acts Interpretation Act 1954, section 36.
(5)The chief executive must keep a copy of the policy available for inspection free of charge by relevant service providers at—
(a)the department’s head office and regional offices; and
(b)other places the chief executive considers appropriate.
(6)Also, the chief executive must publish the policy on the department’s website on the internet.
(7)This section stops applying on the day after the transitional period ends.

s 258 ins 2008 No. 23 s 12

259Short term approvals not to be given during transitional period

(1)Sections 153 and 170 and part 6, division 4, subdivision 4 do not apply during the transitional period.
(2)In this section—
transitional period means the period starting on the commencement and ending on the date of assent of the Criminal History Screening Legislation Amendment Act 2010.

s 259 ins 2008 No. 23 s 12

amd 2010 No. 5 s 153

Division 4 Transitional provision for Criminal Code and Other Acts Amendment Act 2008

pt 9 div 4 hdg prev div 4 hdg om 2010 No. 5 s 83

pres div 4 hdg (prev pt 16 div 3 hdg) ins 2008 No. 55 s 150 sch

renum 2010 No. 5 s 154

260References in schs 2 and 4 to Criminal Code offence

Schedules 2 and 4 apply as if a reference to the Criminal Code, section 208 included a reference to the Criminal Code, section 209 as in force at any time before its repeal by the Criminal Code and Other Acts Amendment Act 2008.

s 260 (prev s 241) ins 2008 No. 55 s 150 sch

renum 2010 No. 5 s 155

Division 5 Transitional provisions for Criminal History Screening Legislation Amendment Act 2010

pt 9 div 5 hdg ins 2010 No. 5 s 156

Subdivision 1 Preliminary

pt 9 div 5 sdiv 1 hdg ins 2010 No. 5 s 156

261Definition for div 5

In this division—
amending Act means the Criminal History Screening Legislation Amendment Act 2010.

s 261 ins 2010 No. 5 s 156

Subdivision 2 Transitional provisions relating to previous part 9

pt 9 div 5 sdiv 2 hdg ins 2010 No. 5 s 156

262Definitions for sdiv 2

In this subdivision—
commencement means the commencement of this section.
engaged by the department means engaged by the department as defined under section 63 of the unamended Act.
prescribed police information means a report or other information mentioned in section 70(2) of the unamended Act.
unamended Act means this Act as in force from time to time before the commencement.

s 262 ins 2010 No. 5 s 156

263Notice about change in criminal history not given at the commencement

(1)This section applies if—
(a)before the commencement, there is a change in the criminal history of a person engaged by the department; and
(b)at the commencement, the person has not disclosed the details of the change to the chief executive as required by section 67 of the unamended Act; and
(c)the person is engaged by the department at a service outlet of the department.
(2)Section 76 applies in relation to the change in the person’s criminal history.

Note—

See also the Public Service Act 2008, sections 155B and 257.