Disability Services Act 2006
Queensland Disability
Services Act
2006 Current as at [Not applicable]
Indicative reprint note This is an
unofficial version of a
reprint of this Act that incorporates all proposed
amendments to the Act included in the
Disability Services and Other Legislation (Worker
Screening) Amendment
Bill 2018. This
indicative reprint
has been prepared for
information only— it is not an authorised reprint of the
Act . The point-in-time date for this
indicative reprint is the introduction date for the
Disability Services
and Other Legislation (Worker
Screening) Amendment
Bill 2018—20 March 2018. Detailed
information about indicative reprints is available on the
Information page
of the
Queensland legislation website.
©
State of Queensland 2018 This work is licensed under a Creative
Commons Attribution 4.0 International License.
Not
authorised —indicative only
Queensland Disability
Services Act 2006 Contents Part 1
Division 1 1
2 3 4
5 Division 2 6
7 8 Division 3
9 10 11
12 13 14
15 16 16A
Part
2 Division 1 17
18 Division 2 Page
Preliminary Introduction Short title . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . 19 Commencement . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
19 Act binds all persons . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
19 Contravention of this Act does not create civil cause of action . .
19
Act does not
affect other
rights or
remedies . . . . . . . . . . . . . . . .
20
Objects Objects of
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
20
How
objects are mainly achieved . . . . . . . . . . . . . . . . . . . . . . . .
20
Finite resources available . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Interpretation Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
Notes in text . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
21
What
is a disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
What
are disability services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Meaning of
service provider . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
Meaning of funded
service provider . . . . . . . . . . . . . . . . . . . . . .
23
Meaning of non-government
service provider . . . . . . . . . . . . . . .
23
Meaning of funded
non-government service
provider .
. . . . . . . .
24
Meaning of NDIS
non-government service
provider .
. . . . . . . . . 24
Disability rights Human rights
principle Persons
encouraged to have regard to human rights principle
. .
24
Principle that people with a disability have the same human rights as
others . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 24 Service delivery
principles
Disability Services Act 2006
Contents Not
authorised —indicative
only 19 20
21 22 23
24 25 26
27 28 29
30 31 32
Part
3 33 34 35
Part
4 36 37 38
39 Part 5 Division 1
40 41 42
43 44 Division 2
Page
2 Service delivery principles to be promoted
by service providers . 26 Focus on the
development of the individual . . . . . . . .
. . . . . . . . 26 Participation in planning and
operation of services . . . . . . . . . . . 26
Focus on a lifestyle the same as other
people and appropriate for age 26
Coordination and integration of services
with general services . 27
Services to be tailored to meet individual
needs and goals . . . . 27
People with a disability experiencing
additional barriers . . . . . . . 27
Promotion of competency, positive image and
self-esteem . . . . 27
Inclusion
in the
community . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
No
single service provider to exercise control over life of person with
disability . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . .
28 Consideration for others involved with
people with a disability . . 28
Service providers to make information
available . . . . . . . . . . . . . 28
Raising and resolving grievances
. .
. . . . . . . . . . . . . . . . . . . . . . 28
Access to advocacy support
. .
. . . . . . . . . . . . . . . . . . . . . . . . . .
29 Complaints
about the
delivery of
disability services by funded service providers Complaints by
consumers . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 29 Chief executive may refer matters to
complaints agency . . . . . . 29
Complaints agency to inform chief executive
about actions taken for complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
Funding to people
with a
disability Purpose of pt
4 . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . 30
Definitions for pt 4 . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . 30
Approval for funding . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
31 Individual
funding agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Screening of particular persons
engaged by
department or particular funded service
providers Preliminary Main purpose of
pt 5 . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . 32 Safety of people
with a disability to be paramount consideration 32
This
part does not apply to persons engaged to provide disability
services to children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
This
part does not apply to registered health practitioners
. .
. . . 33 This part applies despite the Criminal
Law (Rehabilitation of Offenders) Act 1986
.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
33
Interpretation
Disability Services Act 2006
Contents Not
authorised
—indicative only
44A 45 46
47 48 Division 3
49 Division 4 50
Division 5 51
52 53 54
55 56 57
58 Division 6 59
60 61 62
63 64 Division 7
Subdivision 1 65
Meaning of sole trader . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . 33
Persons engaged by the department at a
service outlet . . . . . . . 34
Persons engaged by a funded non-government
service provider or an NDIS non-government service provider
at a service outlet . . . . . 34
What
is a serious offence . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . 36 What is a
disqualifying offence . . . . . . . . . . . . . . . . . . .
. . . . . . . 37 Risk management strategies
Risk
management strategies about persons engaged by funded
non-government service providers
or NDIS
non-government service providers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Screening of persons engaged
by the
department at
a service
outlet Undertaking
screening of
persons engaged by department at
a service outlet . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Issue of prescribed notices for funded non-government service providers
and NDIS
non-government service
providers Division does
not apply
to holders
of WWC
positive notice . . . . 40
Application
for prescribed notice
. . . . . . . . . . . . . . . . . . . . . . . . . 41
Notice of change of engagement,
or name
and contact
details in prescribed
notice application .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Decision on
application .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Decision-making under s 54 in relation to
discretionary matters . 46 Actions of chief
executive after making decision on application .
47 Chief executive to invite submissions
from engaged person about particular information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
48
Currency of prescribed notice and positive
notice card . . . . . . . . 48
Issue of exemption notices for funded
non-government service providers and NDIS non-government service
providers Application
for exemption
notice .
. . . . . . . . . . . . . . . . . . . . . . . .
49
Notice of change of engagement,
or name
and contact
details in exemption
notice application .
. . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Decision on application .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Obtaining advice
from chief
executive (employment screening) .
52
Actions of chief executive after making
decision on application . 53
Currency of exemption notice
. .
. . . . . . . . . . . . . . . . . . . . . . . . .
54 Obligations
and offences
relating to
prescribed notices and
exemption notices Engagement of
persons by funded non-government service provider or
NDIS non-government
service provider Starting
engagement of certain regular
engaged persons other
than volunteers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
55
Page 3
Disability Services Act 2006
Contents Not
authorised —indicative
only 66 67
67A 67B 68
69 70 Subdivision
2 71
72 Subdivision 3 73 74
75 76 77
Subdivision 4 78 79
80 81 Division 8
82 83 84
85 86 87
88 Page 4 Starting
engagement of new engaged persons other than volunteers 56
Continuing engagement of persons other than
volunteers . . . . . 58
Restriction on sole trader providing
disability services . . . . . . . . 58
Currency of prescribed notice for sole
trader . . . . . . . . . . . . . . .
59 Starting engagement of volunteers . .
. . . . . . . . . . . . . . . . . . . . . 59
Currency of prescribed notice
for volunteer
continuing engagement 60 Prohibited engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
61
Obligations if
holder of
negative notice or negative exemption notice, or
prescribed notice or exemption notice application is
withdrawn Person holding
negative notice or negative exemption
notice not
to apply for, or start or continue in, regulated engagement
etc. . . . . . . . .
62
Person who has
withdrawn consent to screening not
to start
or continue in regulated
engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . 63 Changes
in police
information Acquiring police
information . . . . . . . . . . . . . . . . . . . . . . . . . . . .
63
Effect of conviction for serious offence . . . . . . . . . . . . . . . . . . . . 64
Change in police information of person
engaged by funded non-government service provider
or NDIS
non-government service provider
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
64
Change in police
information of person engaged by department 66 Change in police information of
other persons . . . . . . . . . . . . . . 66
General False or
misleading disclosure
. . . . . . . . . . . . . . . . . . . . . . . . . . 67
False or misleading
documents .
. . . . . . . . . . . . . . . . . . . . . . . . . 68
Return of cancelled positive notice
to chief
executive .
. . . . . . . .
68
Return of cancelled positive exemption
notice to
chief executive 69 Cancellation of
prescribed notices and exemption notices
etc. Cancellation
of negative
notice or
negative exemption notice
and issuing of positive notice or positive
exemption notice . . . . . . . . . . . . . .
69 Chief executive may cancel a
prescribed notice and substitute another prescribed
notice . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Chief executive may cancel an exemption notice and substitute another exemption
notice . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Cancellation of
positive notice if relevant disqualified
person .
. .
75
Suspension
of positive
notice if
charged with
disqualifying offence or
subject to temporary or interim order . . . . . . . . . . . . . . . . . . . . .
76
Ending of suspension
and issue
of further
prescribed notice . . .
78
Suspension of
a positive
exemption notice if WWC positive notice
Not
authorised
—indicative only
Disability Services Act 2006
Contents 89
90 91 92
93 94 Division 9
95 96 Division
10 97 98 99
100 101 102
103 104 105
106 107 Division
11 Subdivision 1 108
109 110 Subdivision
2 111
112 suspended . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
79 Ending of suspension and issue of
further exemption notice or prescribed notice . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . 81 Notifying holder of expiry of positive
exemption notice . . . . . . . . 83
Request to cancel positive notice or
positive exemption notice . 84
Replacement of positive notice, positive
notice card or positive exemption
notice .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
85
Change of details for positive notice, positive
notice card
or positive exemption notice
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Replacement notice etc. if change in engagement
details . . . . . 88
Persons who hold
or held
a WWC
positive notice Application of div 8 to person who holds WWC positive notice
and prescribed notice
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Person who holds
negative exemption notice
but no
longer holds
WWC positive notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
89
Disqualified persons Who is a
disqualified person . . . . . . . . . . . . . . . . . . . . . . . . . . . .
90
Offences for disqualified person . . . . . . . . . . . . . . . . . . . . . . . . .
91
Application for an eligibility declaration .
. . . . . . . . . . . . . . . . . . . 92
Notice of change of name and contact details in eligibility application 92
Chief
executive’s decision on eligibility application .
. . . . . . . . . .
93
Eligibility declaration taken to have been issued . . . . . . . . . . . . .
94
Withdrawing eligibility application generally . . . . . . . . . . . . . . . .
94
Deemed withdrawal of eligibility
application if identity can not be established . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 95 Deemed withdrawal of eligibility
application if particular requests not complied with
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
95
Expiry of eligibility declaration .
. . . . . . . . . . . . . . . . . . . . . . . . . .
96
Reversal of decision refusing
an eligibility declaration . . . . . . . .
96
Miscellaneous Reviews and
appeals against particular decisions Definitions for
sdiv 1
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Person may apply
for review
of part
5 reviewable
decision . . . .
99
Effect of applicant for a review becoming
a disqualified person .
100
Provisions
about investigative information Police commissioner
may decide
that information about
a person
is investigative
information . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 100 Delegation by police commissioner of
power under s 111 restricted 102 Page
5
Disability Services Act 2006
Contents Not
authorised —indicative
only 113 114
115 Subdivision 3 116
117 118 119
Subdivision 4 120 121
122 123 124
125 126 127
Subdivision 5 128 129
Subdivision 6 130 Subdivision
7 131
132 133 134
135 Page 6 Decision by
police commissioner that information is investigative
information . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
102 Court to decide matters afresh
. .
. . . . . . . . . . . . . . . . . . . . . . . . 103
Consequence of decision on appeal . . . . .
. . . . . . . . . . . . . . . . . 104
Obtaining police information or information
related to police information about a person
Persons to whom ss 117 and 118 applies . . . . . . . . . . . . . . . . . . 105
Chief executive may obtain information from
police commissioner 106 Obtaining information from director of
public prosecutions . . . . . 110
Obtaining information from chief executive
(corrective services) 112 Obtaining report
about person’s mental health Application of sdiv 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
Chief executive may request
person to
undergo examination by registered health practitioner
etc. . . . . . . . . . . . . . . . . . . . . . .
. . 114 Nominating registered health
practitioner to conduct examination 115
Registered health practitioner obtaining
information from Mental Health Court . . . .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
115
Registered health practitioner obtaining information from
Mental Health Review Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
118
Use of information
obtained from Mental
Health Court or Mental Health Review Tribunal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
121
Chief executive may obtain report about
person’s
mental health from
registered
health practitioner .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 122 Chief executive to bear medical costs
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 122 Obtaining
other information about
person’s
mental health Chief executive may obtain particular information from
Mental Health Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Chief executive may obtain particular information from
Mental Health Review
Tribunal .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 125 Obtaining information about changes
in police
information Notice of change
in police
information about a person . . . . . . . . 128
Other miscellaneous provisions Chief executive
to give notice to funded non-government service provider or NDIS
non-government service
provider about making
screening
decision about engaged
person . . . . . . . . . . . . . . . . . 130
Withdrawal
of engaged
person’s
consent to
screening .
. .
. .
. .
. 132 Compliance with requirement
to end,
or not
start, a
person’s
engagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Guidelines for dealing with
information . . . . . . . . . . . . . . . . . . . .
136
Use of information
obtained under this part about a person . . . .
136
Disability Services Act 2006
Contents Not
authorised —indicative only
136 137 138
Part
6 Division 1 139
140 141 142
143 144 145
146 147 Division 2
148 149 150
Division 3 Subdivision
1 151
152 153 154
Subdivision 2 155 156
157 158 159
Chief executive must give police
commissioner a person’s current address
. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . 137 Disqualification order . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
137 Register of persons engaged by
particular entities or for whom particular applications are
made . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 138 Positive behaviour support and
restrictive practices Preliminary Purpose of pt
6 . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . 139
Service providers to which pt 6 applies . .
. . . . . . . . . . . . . . . . . . 140
Principles
for performing functions etc.
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
140
Principles for providing disability services
to particular adults
. .
. 141 Explanation of
operation of pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Definitions for pt 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
143
Meaning of chemical restraint
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 148 Meaning of contain . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
Meaning of mechanical restraint .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
149
Important concepts for using restrictive practices Assessment
of an
adult .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 150 Who is appropriately qualified to
assess an
adult .
. .
. .
. .
. .
. .
. 151 What is a positive behaviour support
plan .
. .
. .
. .
. .
. .
. .
. .
. .
. 152 Containment and seclusion Requirements for
containing or secluding
an adult Containing or secluding an
adult under
containment or seclusion
approval . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
154 Containing or secluding an adult for
respite services or community access services
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
155
Containing or
secluding an adult under short
term approval . . . . 156
Containing or
secluding an adult before decision
on short
term approval 156
Multidisciplinary assessment and
development of positive
behaviour support plan Application of
sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Chief executive to decide whether multidisciplinary assessment of
adult will be
conducted . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
158
Notice of decision
not to
conduct assessment . . . . . . . . . . . . . .
159
Development
of positive
behaviour support plan
following assessment 159 Participation of psychiatrist
or senior
practitioner in development
of plan 161 Page
7
Disability Services Act 2006
Contents Not
authorised —indicative
only Subdivision 3 160
161 162 163
164 Subdivision 4 165 Division 4
Subdivision 1 166
167 168 169
170 171 Subdivision
2 172
173 174 175
Subdivision 3 176 177
Subdivision 4 178 179
Page
8 Changing a positive behaviour support
plan Application of sdiv 3 . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
161 Who may change positive behaviour
support plan . . . . . . . . . . . 162
When
chief executive must decide whether positive behaviour
support plan should be changed . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . 162
Requirements for chief executive’s decision
about whether change should
be made .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 162 Action of chief executive after
deciding whether change
should be
made 163
General requirements for containment
or seclusion Relevant service
provider to
ensure adult’s needs are met . . . . 166
Use
of restrictive practices other than containment or
seclusion Requirements for
using chemical, mechanical or physical restraint,
or
restricting access Using chemical,
mechanical or physical restraint, or restricting access,
with consent of guardian etc.
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
166
Using chemical, mechanical or
physical restraint, or
restricting access, for respite
services or community access
services .
. .
. .
. .
. .
. .
167
Using chemical restraint
(fixed
dose) for
respite services . . . . . . 168
Using chemical, mechanical or
physical restraint, or
restricting access, if
consent ended .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
169
Using chemical, mechanical or
physical restraint, or
restricting access, under short
term approval . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170
Using chemical, mechanical or
physical restraint, or
restricting access, before decision
on short
term approval . . . . . . . . . . . . . . . . . . . . 170
Assessment of
adult and
positive behaviour support
plan Application of
sdiv 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Requirements for
development of positive
behaviour support plan— assessment
and consultation . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Changing a positive behaviour
support plan . . . . . . . . . . . . . . . . 174
Requirement for relevant service provider to
consider whether plan should
be changed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174
Requirements if
adult subject to forensic order,
treatment support order or
treatment authority Requirement for
relevant service provider
to notify
guardian . . . 175
Requirement for
relevant service provider
to notify
relevant director 176
Short term approvals given
by chief
executive Short term
approval for use of restrictive practices other than
containment
or seclusion .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
177
Period for which short term approval has
effect . . . . . . . . . . . . .
180
Not
authorised —indicative only
Disability Services Act 2006
Contents Division 5
180 181 182
183 184 Division 6
185 186 187
188 Division 7 Subdivision
1 189
190 Subdivision 2 191
192 193 194
195 Subdivision 3 196 197
198 Subdivision 4 199 200
Part
6A Division 1 Use of
restrictive practices for respite services or community
access services Purpose of div
5 . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . 180
Requirement to develop respite/community
access plan . . . . . . 180
Obtaining information about the adult . . .
. . . . . . . . . . . . . . . . . . 182
Consultation . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 182 Risk
assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Review of particular chief executive
decisions Application
of div
6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Definitions for div 6
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
184
Application for
review by
chief executive .
. .
. .
. .
. .
. .
. .
. .
. .
. .
184
Review of relevant decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
184
Miscellaneous
provisions Immunity for
use of
restrictive practices Immunity from
liability—relevant service
provider .
. .
. .
. .
. .
. .
. 185 Immunity from liability—individual acting
for relevant service
provider 185
Requirements for relevant service
providers Requirement to give statement about use of
restrictive practices 187 Requirement to
give information to guardian or informal decision-maker
188 Requirement to keep and implement
procedure .
. .
. .
. .
. .
. .
. .
190
Requirement to keep records and other
documents . . . . . . . . . . 191
Notification requirements about approvals
given for use of restrictive practices
.
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
192
Confidentiality provisions Definitions for
sdiv 3 . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . 193 Relevant service
provider may request confidential information from
health professional, chief executive
(health)
or health
service chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
194
Relevant
service providers must
maintain confidentiality . . . . . .
195
Reporting and
provision of particular
information Requirement
to give
information about use of restrictive
practice to
chief executive .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
196
Chief executive may
give information about
use of
restrictive practice 196 Investigation, monitoring and
enforcement Preliminary Page
9
Not authorised —indicative
only Disability Services Act 2006
Contents 200A
200B 200C Division 2
200D 200E Division 3
Subdivision 1 200F
Subdivision 2 200G
Subdivision 3 200H 200I
200J 200K Subdivision
4 200L
200M 200N 200O
200P 200Q Subdivision
5 200R
200S 200T 200U
200V Subdivision 6 200W 200X
Part
7 Division 1 Purpose of
part . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . References to
exercise of powers . . . . . . . . . . . . . . . . . . . . . . .
. Reference to document includes reference to
reproductions from electronic document . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
Functions of authorised officers
Existing functions of authorised officers in
relation to funding . . . Additional functions of authorised
officers in relation to NDIS non-government
service providers . . . . . . . . . . . . . . . . . . . . . . . Powers of authorised officers for
particular functions Preliminary Application of
division for particular functions . . . . . . . . . . . . . .
. General power of entry General power
to enter
places . . . . . . . . . . . . . . . . . . . . . . . . . .
Entry by
consent Application
of subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Incidental entry to ask for access
. . . . . . . . . . . . . . . . . . . . . . . . Matters
authorised officer must tell occupier . . . . . . . . . . . . . . . . Consent acknowledgement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Entry
under warrant Application
for warrant
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. Issue of warrant
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
Electronic application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Additional procedure if electronic
application . . . . . . . . . . . . . . . Defect
in relation to a warrant . . . . . . . . . . . . . . . . . . . . . . . . . . .
Entry procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General powers of authorised
officer after entering
place Application
of subdivision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
General powers .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. Power to require
reasonable help . . . . . . . . . . . . . . . . . . . . . . . . Offence to contravene help requirement
. .
. .
. .
. .
. .
. .
. .
. .
. .
. Failure to answer questions . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Additional information-obtaining power Power to require information .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. Offence to
contravene information requirement . . . . . . . . . . . . . Legal proceedings Application 197
197 197 198
198
199 199
200
200
201
201
202
202
203
204
205
206
206
207
208
208
209
209
210
Page
10
201 Division 2 202
203 204 205
Division 3 206
207 208 209
210 211 212
213 214 Part 8
Division 1 215
Division 2 216
217 218 219
220 Division 3 221
222 223 224
225 226 227
Disability Services Act 2006
Contents Application of
pt 7 . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . 211
Evidence Appointments and
authority . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 211 Signatures . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
211 Evidentiary provisions . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . .
212 Positive notice card is evidence of
holding positive notice . . . . .
212
Proceedings Indictable and
summary offences . . . . . . . . . . . . . . . . . . . . . . . .
212
Proceedings for
indictable offences . . . . . . . . . . . . . . . . . . . . . .
213
Limitation on who may summarily hear
indictable offence proceedings 214
Proceeding for offences . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . 214
When
proceeding may start . . . . . . . . . . . . . . . . . . .
. . . . . . . . . 214 Allegations of false or misleading
information or document . . . . 214
Forfeiture on conviction . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . 215
Dealing with forfeited
thing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 215
Responsibility for acts or omissions
of representative . . . . . . . .
215
Miscellaneous Records
Funded non-government service
provider or
NDIS non-government service provider
must keep records . . . . . . . . . . . . . . . . . . . . .
. 216 Locking of gates, doors and
windows Application of div 2 . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . .
217 Definitions for div 2
. .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 217 Immunity from liability—relevant
service provider . . . . . . . . . . . . 218
Immunity
from liability—individual acting
for relevant service
provider 219
Department’s policy about locking of gates,
doors and windows 219 Other matters Disability
service plans for departments . . . . . . . .
. . . . . . . . . . . 220 Establishment of
Ministerial advisory committees . . . . . . . . . . . .
221 Membership
of advisory
committee .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
221
Dissolution .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 221 Other
matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
222
Person with a
disability must advise
chief executive about
compensation 222
Confidentiality of information about
criminal history and related Page 11
Not authorised —indicative only
Disability Services Act 2006
Contents Not
authorised —indicative
only 228 229
230 231 232
233 234 235
236 237 238
239 240 241
241A 241B Part 9
Division 1 242
Division 2 243
244 245 246
247 248 Division 3
Subdivision 1 249 250
Page
12 information . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
223 Confidentiality of other
information . . . . . . . . . . . . . . . . . . . . . .
. 225 Power to require information or
documents . . . . . . . . . . . . . . . .
226 Protection from liability for giving
information . . . . . . . . . . . . . . .
226 Chief executive to advise
on-disclosure . . . . . . . . . . . . . . . . . . .
227 Chief
executive may enter into arrangement
about giving and receiving information with
police commissioner . . . . . . . . . . . . . . . . . . . .
. 228 Chief executive may enter into
arrangements about giving and receiving information
about eligible persons
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
228
Delegation by Minister . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
229
Delegation by chief executive . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Protecting officials from liability
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
230
Approval of forms . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
230 Service
of documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 230
Regulation-making power . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Review of Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 231
Review of Guardianship and Administration
Act 2000,
ch 5B
. .
. 231 Review of impact of NDIS on Act
. . . . . . . . . . . . . . . . . . . . . . . . 232
Expiry of pt 6A
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 232 Repeal and transitional provisions Repeal
Repeal of Disability Services Act
1992 . . . . . . . . . . . . . . . . . . . .
232
Transitional provisions for
Act No.
12 of
2006 Definitions for
div 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
232
Screening of persons engaged
by funded
non-government service providers at the
commencement . . . . . . . . . . . . . . . . . . . . . . . .
. 233 Certain non-government service
providers taken to be approved under part 6 and to
be funded
non-government service
providers . . . .
233
When grants
of financial assistance under
the repealed Act
continue 234
Queensland disability service
standards to continue
in force . . .
235
Disability
sector quality system
to continue
in force . . . . . . . . . . 235
Transitional provisions for
Disability Services and
Other Legislation Amendment Act
2008 and
Justice and
Other Legislation Amendment
Act 2010 Preliminary Interpretation
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
236
Declaration about transitional
period .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 237
Not
authorised —indicative only
Disability Services Act 2006
Contents Subdivision
2 251 252 Subdivision
3 253 254 255
256 257 Subdivision
4 258
259 Division 4 260
Division 5 Subdivision
1 261
Subdivision 2 262
263 264 265
266 267 Subdivision
3 268
269 270 271
272 Immunity from liability for use of
restrictive practices before commencement Immunity of
previous service provider . . . . . . . . . . . . . . . . . . . .
. 238 Immunity of individual acting for
previous service provider . . . . . 238
Immunity from liability for use of
restrictive practices during transitional
period Immunity of
relevant service provider . . . . . . . . . . . . . . . . . . . . . 239
Requirement to assess adult if no authorised
guardian . . . . . . . 240
Immunity for individual acting for relevant
service provider . . . . . 241 Relationship of
subdivision with pt 6 . . . . . . . . . . . . . . . . . . . . .
. 241 Circumstances in
which subdivision stops
applying . . . . . . . . . .
241
Other provisions Requirements
for department’s
policy about use of restrictive
practices during
transitional period . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . 242 Short term approvals not to be given
during transitional period . 243
Transitional provision for Criminal Code and
Other Acts Amendment Act
2008 References in
schs 2
and 4
to Criminal
Code offence . . . . . . . .
244
Transitional provisions for
Criminal History Screening
Legislation Amendment Act
2010 Preliminary Definition for div
5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
244
Transitional provisions relating to previous
part 9 Definitions for sdiv 2 . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
244 Notice
about change in criminal history
not given
at the
commencement 245
Request for prescribed police information
not complied with at the commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
245
Particular
prescribed police information obtained but
not used
before commencement
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
246
Notice not given by prosecuting
authority at the commencement 246 Use
of particular information obtained before
commencement . .
247
Transitional provisions relating
to particular amendments of
part 5 Explanation of sdiv 3 . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
247 Definitions for
sdiv 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
New
serious offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
Existing applications for prescribed
notice . . . . . . . . . . . . . . . . . 249
Continuation
if chief
executive acting on own initiative
. .
. .
. .
. .
249
Page 13
Disability Services Act 2006
Contents Not
authorised —indicative
only 273 274
275 276 277
Subdivision 4 278
279 280 281
282 283 284
285 286 287
288 289 290
291 292 293
294 295 296
297 298 Subdivision
5 299
Page
14 Replacement of positive notice or positive
notice card . . . . . . . . 249
Existing reviews and appeals
. .
. . . . . . . . . . . . . . . . . . . . . . . . .
250 Police commissioner’s decision that
information is investigative information . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . 250 References to exemption notices etc. .
. . . . . . . . . . . . . . . . . . . . 251
References to eligibility declarations
etc. . . . . . . . . . . . . . . . . . .
252 Transitional provisions relating to
other amendments of part 5 Explanation of sdiv 4 . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . .
252 Definitions for
sdiv 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 252
Obtaining particular information from
police commissioner about particular persons . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
253 Existing applications for prescribed
notice about a disqualified person who is not a relevant
disqualified person . . . . . . . . . . . . . . . . . . 254
Existing applications for prescribed
notice about a relevant disqualified person . . .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
255
Other existing applications for
prescribed notice . . . . . . . . . . . . .
255
Existing
positive notices held
by disqualified persons who
are not relevant disqualified persons . . . . . . . . . . . . . . . . . . . . . . . . . . . . 256
Existing
positive notices held
by relevant
disqualified person because
of temporary or
interim order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
Existing
positive notices held
by other
relevant disqualified person 257
Currency of existing prescribed
notices . . . . . . . . . . . . . . . . . . . 258
Existing applications to cancel negative notice
by relevant
disqualified person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
258
Other existing applications to
cancel a
negative notice . . . . . . . . 259
Continuation if chief executive acting on
own initiative . . . . . . . . 259
Application of s 97 and sch 8, definition
relevant disqualified person 260
Application of
s 98
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
260
Existing reviews and appeals by disqualified
person . . . . . . . . . 260
Other existing reviews and appeals
. .
. . . . . . . . . . . . . . . . . . . . 261
Disqualification orders for acts done or
omissions made before commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
261
Continuing engagement of volunteers . . . .
. . . . . . . . . . . . . . . . . 262
Provision about persons engaged to provide
disability services only to children
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
262
Provision about holders of CCYPCG positive
notice .
. .
. .
. .
. .
. 263 Other transitional provision References to
Youth Justice Act 1992 . . . . . . . . . . . . . . . . . . .
. 264
Disability Services Act 2006
Contents Not
authorised —indicative only
Division 6 300
Division 7 Subdivision
1 301 Subdivision 2 302
303 304 305
306 307 Subdivision
3 308 309 310
311 312 Subdivision
4 313
314 315 Subdivision
5 316
317 318 Provision for
the Health Practitioner Registration and Other Legislation
Amendment Act 2013 Application of pt 5 to former registered
speech pathologist . . . . 264
Transitional provisions for Criminal Law
(Child Exploitation and Dangerous Drugs) Amendment Act
2013 Interpretation Definitions for div
7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
Prescribed notice applications and
prescribed notices Existing prescribed notice application by
new relevant disqualified person . .
. . .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
266
Existing prescribed notice application if
person charged with new disqualifying offence or is new disqualified person
but not
new relevant disqualified
person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 266
Other existing prescribed
notice applications . . . . . . . . . . . . . . . 268
Current positive notice for new relevant
disqualified person . . . . 268
Current positive notice
for new
disqualified person other
than new relevant disqualified person . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
269
Other current positive
notices . . . . . . . . . . . . . . . . . . . . . . . . . . . 270
Exemption notice applications and exemption
notices Existing exemption notice application by new
relevant disqualified person or person charged with
a new
disqualifying offence . . . .
270
Existing exemption notice application
if person
is new
disqualified person but
not new
relevant disqualified person
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 271 Other existing exemption notice
applications . . . . . . . . . . . . . . . 271
Current positive
exemption notice for person whose
CCYPCG positive notice is
cancelled . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 272
Other positive exemption
notices . . . . . . . . . . . . . . . . . . . . . . . .
272
Existing applications for cancellation
or ending
suspension of prescribed
notices and
exemption notices Existing
applications to cancel negative
notice or
negative exemption notice . . . .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
273
Existing
application to end suspension of
positive notice for person other
than
new relevant disqualified person . . . . . . . . . . . . . . . . . . . . .
274
Existing
application to end suspension
of positive
exemption notice for
person other than new relevant
disqualified person . . . . . . . . . . 274
Eligibility applications and eligibility
declarations Existing eligibility application .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 274 Current eligibility declaration for
new relevant disqualified person
or person charged
with new
disqualifying offence . . . . . . . . . . . . . . 275
Current eligibility declaration for
person convicted of
new serious
offence 275 Page 15
Disability Services Act 2006
Contents Not
authorised —indicative
only 319 320
Subdivision 6 321
322 323 324
325 326 327
Subdivision 7 328 329
330 Division 8 331
Division 9 332
333 334 335
336 337 338
Division 10 339
340 Division 11 Page 16
Other eligibility declarations
. .
. . . . . . . . . . . . . . . . . . . . . . . . . .
276 Existing application for reversal of
decision refusing an eligibility declaration . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . 276 Reviews and appeals
Undecided reviews and appeals by new
disqualified persons . . 277
Review of part 5 reviewable decision about
new disqualified person 278 Appeal by new
disqualified person against decision of tribunal on review
of
part 5 reviewable decision . . . . . . . . . . . . . . . . . . . . . . . . . . . .
278
Existing appeal by chief executive against
decision of tribunal on review of part 5 reviewable decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Appeal by chief executive against
decision of
tribunal on
review of
part 5 reviewable decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279
Existing reviews and appeals
against part 5 reviewable decisions by
persons other than new disqualified
persons . . . . . . . . . . . . . . . 280
Review of part 5
reviewable decision about
person other than new disqualified person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
280
Miscellaneous Chief executive
acting on
own initiative .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 281 Disqualification orders for acts done or omissions
made before commencement .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 281 Effect of conviction or charge for new disqualifying offence . . . .
282
Transitional provision for Disability
Services (Restrictive Practices) and Other
Legislation Amendment Act 2014
Notice about use
of restrictive practices . . . . . . . . . . . . . . . . . . . 283
Transitional provisions for
Communities Legislation (Funding Red Tape
Reduction) Amendment Act
2014 Definitions for
div 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
283
Funding
agreements continue in force
. . . . . . . . . . . . . . . . . . . . 284
Obligation to enter agreement about
assistance continues . . . . 285
Contraventions of funding agreement or Act
before commencement 285
Interim managers . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . .
286 Confidentiality obligation continues
to apply to authorised officers and interim managers
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. 287 Reviews . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
287
Transitional provisions for
Disability Services and
Other Legislation Amendment Act
2016 Warrant may
be executed
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
. .
288
Offences against pt 6A may continue
to be
prosecuted . . . . . . . 288
Transitional provisions for Disability
Services and Other
Not authorised —indicative only
341 342 343
344 Schedule 2 Schedule 3
Schedule 4 Schedule 5
Schedule 6 Schedule 7
Schedule 8 Disability
Services Act 2006 Contents Legislation
(Worker Screening) Amendment Act 2018 Definitions for
division . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 288 Prescribed notices or exemption
notices issued to sole traders before commencement . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 289 Certification by prescribed persons
before commencement . . . . 289
Delayed application of particular
provisions . . . . . . . . . . . . . . . .
290 Current serious offences
. .
. . . . . . . . . . . . . . . . . . . . . . . . . . .
291 Repealed or expired serious
offences . . . . . . . . . . . . . . . . . .
303 Current
disqualifying offences . . . . . . . . . . . . . . . . . . . . . . . .
307
Repealed or expired disqualifying offences . . . . . . . . . . . . . .
317
Offences that may form basis of investigative information . 321
Repealed or
expired offences that
may form basis of investigative
information . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 326 Dictionary . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 328 Page 17
Not authorised— indicative
only
Disability Services Act 2006
Disability Services Act 2006
Part
1 Preliminary [s 1] An
Act to protect
and promote the
rights of
people with
a disability, and for other
purposes Not authorised —indicative only
Part
1 Preliminary Division 1
Introduction 1
Short
title This Act may be cited as the
Disability Services Act 2006
. 2 Commencement This Act
commences on a day to be fixed by proclamation. 3
Act
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. 4 Contravention 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. Current as at
[Not applicable] Page 19
Not authorised —indicative
only Disability Services Act 2006
Part 1
Preliminary [s 5] 5 Act 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. Division 2
Objects 6
Objects of Act The objects of
this Act are— (a) to acknowledge the
rights of
people with
a disability including by
promoting their inclusion in the life of the community
generally; and (b) to ensure that people with a
disability have choice and control in accessing relevant
disability services; and (c) to
ensure that
disability services
funded by
the department are
safe, accountable and
respond to
the needs of people with a disability;
and (d) to safeguard the rights of adults with
an intellectual or cognitive disability including
by regulating the
use of restrictive practices
by funded 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. 7 How objects are
mainly achieved The objects are mainly achieved by—
Page
20 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
1 Preliminary [s 8] (a)
stating the human rights principle and
supporting rights applying to people with a disability;
and (b) stating the principles for service
delivery to people with a disability to be promoted by service
providers; and (c) regulating disability services funded
by the department to enable consumer choice and ensure the
quality, safety, responsiveness and accountability of the
services; and (d) helping to protect people with a
disability using services funded by
the department from
abuse, neglect
and exploitation; and (e)
stating requirements for when funded service
providers may use restrictive practices in relation to
adults with an intellectual or cognitive disability.
8 Finite 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 a disability; (b) there is a need
to distribute the resources fairly having regard to the
State’s priorities. Division 3 Interpretation 9
Definitions The dictionary
in schedule 8 defines particular words used in this Act.
10 Notes in text A note in the
text of this Act is part of the Act. Current as at
[Not applicable] Page 21
Not authorised —indicative
only Disability Services Act 2006
Part 1
Preliminary [s 11] 11
What
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.
12 What are disability
services Disability services
,
for people with a 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. Page 22 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
1 Preliminary [s 13] 13
Meaning of service
provider (1) A service
provider is a person providing services for
people with a disability. (2)
The
service provider may provide the services— (a)
specifically to people with a disability;
or (b) generally to people in the community,
including people with a disability. (3)
The service provider
may provide the
services with
the intention of making a profit.
14 Meaning of funded service
provider (1) A funded service
provider is— (a) a
service provider
that receives
funds from
the department to provide disability
services; or (b) a service
provider that
provides disability services
prescribed by
regulation to
a participant under
the participant’s plan.
(2) A funded
service provider
includes the
department to
the extent it provides disability
services. (3) However, a funded service provider
does not include— (a) another department receiving
funds from
the department; or (b)
another department providing
disability services
prescribed by
regulation to
a participant under
the participant’s plan.
15 Meaning of non-government
service provider (1) A non-government service
provider is
a service provider,
other than the State, providing disability
services. (2) A non-government service
provider may
be a local
government. Current as at
[Not applicable] Page 23
Not authorised —indicative
only Disability Services Act 2006
Part 2
Disability rights [s 16] 16
Meaning of funded
non-government service provider (1)
A funded non-government service
provider is
a non-government service
provider receiving
recurrent or
one-off funds
from the
department to
provide disability services.
(2) It is immaterial whether other funds
or resources are also used by the non-government service provider
to provide disability services. 16A
Meaning of NDIS
non-government service provider An
NDIS non-government service
provider is
a non-government service
provider that
provides disability services
prescribed by
regulation to
a participant under
the participant’s plan.
Part
2 Disability rights Division 1
Human rights principle 17
Persons encouraged to have regard to human
rights principle Persons
are encouraged to
have regard
to the human
rights principle in
matters relating to people with a disability. 18
Principle that people with a disability have
the same human rights as others (1)
People with a disability have the same human
rights as other members of
society and
should be
empowered to
exercise their
rights. (2) People with a disability have the
right to— (a) respect for their human worth and
dignity as individuals; and Page 24
Current as at [Not applicable]
Disability Services Act 2006
Part
2 Disability rights [s 18] Not
authorised —indicative only
(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 people
with a disability have the right to— (a)
services supporting their
achieving quality
of life in
a way that
supports their
family unit
and their full
participation in society; and
(b) receive services
in a way
that results
in the minimum
restriction of their rights and
opportunities; and (c) receive services in a way that
respects the confidentiality of their
information; and (d) receive services in a safe, accessible
built environment appropriate to their needs; and
(e) pursue grievances about
services without
fear of
the services being
discontinued or
recrimination from
service providers; and (f)
support to
enable them
to pursue grievances about
services; and (g)
support, and
access to
information, to
enable them
to participate in decisions affecting
their lives. (4) People with a disability have the
right to receive 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). Current as at [Not applicable]
Page
25
Disability Services Act 2006
Part 2
Disability rights [s 19] Division 2
Service delivery principles
Not authorised —indicative
only 19 Service 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 a
disability. (2) For subsection
(1), the application and
promotion of
the principles is encouraged to the extent
they reasonably apply to a service provider.
20 Focus 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. 21 Participation in planning and
operation of services (1) Services should
be designed and implemented so that people with
a disability are
encouraged, and
able, to
participate continually in
the planning and operation of the services they receive.
(2) Services provided to people with a
disability should provide opportunities for consultation in
relation to the development of major policy
changes. 22 Focus 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
a 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. Page 26 Current as at
[Not applicable]
Disability Services Act 2006
Part
2 Disability rights [s 23] 23
Coordination 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. Not
authorised —indicative only
24 Services to be tailored to meet
individual needs and goals (1)
Services should be tailored to meet the
individual needs and goals of people with a
disability. (2) To be
responsive to
the needs and
goals of
people with
a disability, innovation and
flexibility are
encouraged when
designing services. 25
People with a disability experiencing
additional barriers Services should
be designed and
implemented to
meet the
needs of
people with
a 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. 26 Promotion of competency, positive
image and self-esteem Services should
be designed and implemented to— (a)
promote recognition of the competence of
people with a disability; and (b)
promote a
positive image
of people with
a disability; and
(c) enhance the self-esteem of people with
a disability. Current as at [Not applicable]
Page
27
Disability Services Act 2006
Part 2
Disability rights [s 27] 27
Inclusion in the community
Services should be designed and implemented
to promote the inclusion of
people with
a disability in
the life of
the community. Not
authorised —indicative
only 28 No 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 a
disability. 29 Consideration for others involved with
people with a disability Services should
be designed and implemented to— (a)
have sufficient regard
to the needs
of families, carers
and
advocates of people with a disability; and (b)
recognise the demands on the families of
people with a disability; and (c)
take
into account the implications for, and demands on,
the
families of people with a disability. 30
Service 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. 31
Raising and resolving grievances
Services should be designed and implemented
to ensure that appropriate ways exist for people with a
disability and their Page 28 Current as at
[Not applicable]
Disability Services Act 2006
Part
3 Complaints about the delivery of disability services by funded
service providers [s 32] advocates
to raise grievances about
services and
have them
resolved. Not
authorised —indicative only
32 Access to advocacy support
Services should
be designed and
implemented to
ensure people with a
disability have access to necessary independent advocacy
support so
they can
participate adequately in
decision-making about the services they
receive. Part 3 Complaints about
the delivery of disability services by funded
service providers 33
Complaints by consumers (1)
The
following may make a complaint to the chief executive
about the delivery of disability services by
a funded service provider— (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. 34 Chief executive may refer matters to
complaints agency The chief executive may— (a)
liaise with a complaints agency about
matters relating to people with a disability; and
(b) refer matters
relating to
people with
a disability to
a complaints agency; and
(c) enter into
an arrangement with
a complaints agency
aimed at avoiding inappropriate duplication
of activities. Current as at [Not applicable]
Page
29
Not authorised —indicative
only Disability Services Act 2006
Part 4
Funding to people with a disability [s 35]
35 Complaints 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 a 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. Part 4
Funding to people with a disability 36
Purpose of pt 4 The purpose of
this part is to enable people with a disability to
receive funding to obtain relevant
disability services. 37 Definitions 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 Page 30
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
4 Funding to people with a disability [s 38]
(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
a disability, means
disability services,
and care and
support associated with the
person’s disability. 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.
38 Approval for funding
(1) The Minister may approve funding
to— (a) a person with a disability, to enable
the person to obtain relevant disability services;
or (b) a relevant person for a person with a
disability, to enable the relevant person to obtain relevant
disability services for the person with a 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. Current as at [Not applicable]
Page
31
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 39]
39 Individual 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. Part 5
Screening of particular persons
engaged by department or particular
funded service providers Division 1
Preliminary 40
Main
purpose of pt 5 The main purpose of this part is to enable
the chief executive to obtain the
criminal history
of, and related
information about, persons
engaged or to be engaged at a service outlet by the department,
a funded non-government service provider or an NDIS
non-government service provider. 41
Safety of people with a disability to be
paramount consideration The paramount
consideration in making a decision under this part is the
right of people with a disability to live lives free
from
abuse, neglect or exploitation. Page 32
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 42]
42 This part does not apply to persons
engaged to provide disability services to children
This
part does not apply in relation to persons engaged or to
be engaged by
the department, a
funded non-government service provider
or an NDIS non-government service provider to provide
disability services only to children. Note—
For
employment screening of persons engaged or to be engaged by
the department or a funded non-government
service provider to provide disability services
to children, see
the Working with
Children Act,
chapter 8. 43
This
part does not apply to registered health practitioners This
part does
not apply to
the engagement of
a registered health
practitioner to the extent the engagement relates to the
health practitioner’s functions
as a registered health
practitioner. 44
This
part applies despite the Criminal Law (Rehabilitation
of
Offenders) Act 1986 This part applies to a person despite
anything in the Criminal Law
(Rehabilitation of Offenders) Act 1986 .
Division 2 Interpretation 44A
Meaning of sole trader A
sole
trader is an individual who— (a)
is
an NDIS non-government service provider; and (b)
in providing disability services
as an NDIS
non-government service provider, provides
the disability services personally. Current as at
[Not applicable] Page 33
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 45]
45 Persons engaged by the department at a
service outlet Each of
the following persons
at a service
outlet of
the department is
engaged by
the department at
the service outlet—
(a) a public service employee in the
department; (b) a person
contracted by
the chief executive
to provide disability
services for the department; (c)
members of committees established under
section 222; (d) a person working in the department as
a volunteer or as a student on work experience.
46 Persons engaged by a funded
non-government service provider or an NDIS non-government
service provider at a service outlet (1)
For
this part, a funded non-government service provider or an
NDIS
non-government service provider is engaging a person
at a
service outlet of the service provider if the provider has
an agreement with the person for the person to
carry out work at the outlet. (2)
Without limiting subsection (1), each of the
following persons at a service
outlet of
a funded non-government service
provider or
an NDIS non-government service
provider is
engaged by the service provider—
(a) an employee of the service provider
employed under a contract of service; (b)
a
volunteer of the service provider; (c)
a person employed
by the service
provider under
a contract for services;
(d) a member of a board, management
committee or other governing body of the service
provider; (e) an executive officer of the service
provider; (f) a student on work experience with the
service provider. Page 34 Current as at
[Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 46]
Not authorised —indicative only
(3) Also, for this part, an NDIS
non-government service provider who
is a sole
trader is
taken to
be engaged by
the service provider to
carry out work at a service outlet of the service
provider if the sole trader carries out, or
is to carry out, the work at the outlet.
(4) It is immaterial for this
section— (a) whether the agreement is written or
unwritten; and (b) the time for which the person is
engaged to carry out the work; and (c)
whether the agreement provides for the
person to carry out work on 1 occasion or on an ongoing
basis, whether regularly or irregularly.
(5) Also, for this section, the nature of
the work is immaterial. (6) However,
the following are
not engaged by
a funded non-government service
provider or
an NDIS non-government
service provider— (a) a consumer of the service provider
even if the consumer carries out
work at
a service outlet
of the service
provider; (b)
a
tradesperson who— (i) from time to time performs work at a
service outlet of the service provider; and
(ii) is
not an employee
of the service
provider employed under a
contract of service. (7) Also, a
volunteer is not engaged by a funded non-government
service provider or an NDIS non-government
service provider if— (a) the volunteer is
a relative of a person with a disability who is receiving
disability services at a service outlet of the service
provider; and (b) the volunteer is at the service outlet
only to help with the care of the person.
(8) In this section— Current as at
[Not applicable] Page 35
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 47]
cousin means a first
cousin. parent , of a person,
includes— (a) in any case—the spouse of a parent of
the person; and (b) for an
Aboriginal person—a
person who,
under Aboriginal tradition, is
regarded as
a parent of
the person; and (c)
for
a Torres Strait Islander—a person who, under Island
custom, is regarded as a parent of the
person. relative , of a person
with a disability— (a) means the
person’s parent,
grandparent, great
grandparent, brother, sister, uncle, aunt,
niece, nephew or cousin; and (b)
for
an Aboriginal person—includes a person who, under
Aboriginal tradition, is regarded as a
relative mentioned in paragraph (a); and (c)
for a Torres
Strait Islander—includes a
person who,
under Island custom, is regarded as a
relative mentioned in paragraph (a); and (d)
for
a person with a parent who is not a natural parent—
includes anyone who would be a relative
mentioned in paragraph (a) if the parent were a natural
parent. Example for paragraph (d)—
The
daughter of a person’s step-parent is a relative of the
person. 47 What is a serious
offence (1) A serious
offence is— (a) an offence
against a provision of an Act mentioned in schedule 2 or 3,
column 1, subject to any qualification relating to the
provision mentioned opposite in column 3; or
(b) an offence of counselling or procuring
the commission of an offence of a kind mentioned in
paragraph (a); or Page 36 Current as at
[Not applicable]
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Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 48]
(c) an offence of attempting, or of
conspiring, to commit an offence of a kind mentioned in
paragraph (a); or (d) an offence
that has,
as an element,
an intention to
commit an offence of a kind mentioned in
paragraph (a); or (e) an
offence that,
at the time
it was committed, was
an offence of a kind mentioned in
paragraph (a); or (f) another offence
that is
a reportable offence
under the
Child Protection (Offender
Reporting and
Offender Prohibition Order)
Act 2004 that
is not otherwise
a serious offence under this Act;
or (g) an offence under a law of another
jurisdiction that, if it had been
committed in
Queensland, would
have constituted an
offence mentioned
in paragraphs (a)
to (f). Note—
Column 2 in schedules 2 and 3 is included
for information purposes only and states a section heading for
the provision mentioned opposite in column
1. (2) For this section, it is immaterial if
a provision mentioned in schedule 2 or 3, column 1, for an Act
has been amended from time to time or that the provision was
previously numbered with a different number. 48
What
is a disqualifying offence (1)
A disqualifying offence
is— (a) an offence
against a provision of an Act mentioned in schedule 4 or 5,
column 1, subject to any qualification relating to the
provision mentioned opposite in column 3; or
(b) an offence of counselling or procuring
the commission of an offence of a kind mentioned in
paragraph (a); or (c) an offence of attempting, or of
conspiring, to commit an offence of a kind mentioned in
paragraph (a); or Current as at [Not applicable]
Page
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only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 49]
(d) an offence
that has,
as an element,
an intention to
commit an offence of a kind mentioned in
paragraph (a); or (e) an
offence that,
at the time
it was committed
was an offence of a
kind mentioned in paragraph (a); or (f)
an
offence under a law of another jurisdiction that, if it
had been committed
in Queensland, would
have constituted an
offence mentioned
in paragraphs (a)
to (e). Note—
Column 2 in schedules 4 and 5 is included
for information purposes only and states a section heading for
the provision mentioned opposite in column
1. (2) For this section, it is immaterial if
a provision mentioned in schedule 4 or 5, column 1, for an Act
has been amended from time to time or that the provision was
previously numbered with a different number. Division 3
Risk
management strategies 49 Risk management
strategies about persons engaged by funded
non-government service providers or NDIS non-government
service providers (1) This section
applies to
a funded non-government service
provider or
an NDIS non-government service
provider who
engages a person at a service outlet of the
service provider. (2) For each year, the funded
non-government service provider or NDIS
non-government service
provider must
develop and
implement a
written strategy
(a risk management strategy
) for persons engaged by the service
provider. Maximum penalty— (a)
for
an individual guilty under chapter 2 of the Criminal
Code
of an offence—20 penalty units; or Page 38
Current as at [Not applicable]
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Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 50]
(b) for a
funded non-government service
provider or
an NDIS non-government service
provider—100 penalty
units. (3)
The
purpose of a risk management strategy is to implement
engagement practices
and procedures in
relation to
people with a
disability to— (a) promote their wellbeing; and
(b) protect them from abuse, neglect or
exploitation. (4) Without limiting
subsection (3), a
regulation may
prescribe the
matters that
are to be
included in
a risk management strategy.
Division 4 Screening of
persons engaged by the department at a service outlet
50 Undertaking screening of persons
engaged by department at a service outlet
(1) This section applies in relation to a
person engaged or to be engaged by
the department at
a service outlet
of the department. Note—
See— •
the Public Service
Act 2008 for
the engagement of
the department’s employees generally;
and • the Working
with Children
Act for the
engagement of
the department’s employees
in regulated employment within
the meaning of that Act.
(2) The chief executive may ask the person
for written consent for the chief executive to undertake
screening of the person under this
part. (3) Subsection (2) applies even if the
person is a public service employee at the time the person is
engaged or is to be engaged by the
department at a service outlet of the department.
Current as at [Not applicable]
Page
39
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 51]
(4) If the person does not give the
consent, or withdraws his or her consent, the
chief executive must ensure the person is not engaged
by the department at
a service outlet
of the department. (5)
If
the person gives the consent, the chief executive may—
(a) if the
person does
not hold a
WWC positive notice—
undertake screening of the person under this
part, and issue a prescribed notice to the
person, as
if the chief
executive were deciding a prescribed notice
application about the person; or (b)
if
the person holds a WWC positive notice—undertake
screening of
the person under
this part,
and issue an
exemption notice to the person, as if the
chief executive were deciding an exemption notice
application about the person. (6)
The
person’s consent to screening may be withdrawn under
section 132(2), (3), (4) or (6) as
if— (a) for a
person who
does not
hold a
WWC positive notice—a
prescribed notice application has been made about the
person; or (b) for a
person who
holds a
WWC positive notice—an
exemption notice application has been made
about the person. Division 5
Issue of prescribed notices for
funded non-government service
providers and NDIS non-government
service providers 51 Division does not apply to holders of
WWC positive notice This division
does not apply in relation to the engagement of a
person who holds a WWC positive
notice. Page 40 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 52]
Note— See division 6
in relation to the engagement of a person who holds a
WWC
positive notice. 52 Application for prescribed
notice (1) A funded
non-government service
provider or
an NDIS non-government service
provider who
proposes to
start engaging,
or continue engaging,
a person (the
engaged person
) at
a service outlet of the service provider, may apply
to the chief
executive for
a prescribed notice
about the
engaged person. (2)
The
application must be— (a) in the approved
form; and (b) signed by, or on behalf of, the funded
non-government service provider
or NDIS non-government service
provider; and (c)
signed by
the engaged person,
unless the
engaged person is a sole
trader; and (d) accompanied by the prescribed
fee. (3) The approved form must include
provision for— (a) identifying information about the
engaged person; and (b) certification by
the following entity
that the
entity has
sighted documents, relating
to proof of
the engaged person’s
identity, prescribed by regulation— (i)
for an application by
a funded non-government service
provider or
an NDIS non-government service
provider, other
than a
sole trader—the service
provider; (ii) for an
application by a sole trader—a prescribed person;
and (c) the engaged
person’s consent
to screening under
this part; and
Current as at [Not applicable]
Page
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 52]
(d) a declaration by the engaged person
that he or she is not a disqualified person.
(4) On receiving the application, the
chief executive may ask the funded
non-government service
provider, NDIS
non-government service
provider or
engaged person
for further information that
the chief executive
reasonably considers
necessary to establish the engaged person’s identity.
(5) If a
funded non-government service
provider or
an NDIS non-government service
provider asks
a person to
sign an
application under subsection (1) about the
person, the service provider must
warn the
person that
it is an
offence for
a disqualified person
to sign the
application as
an engaged person.
Maximum penalty—10 penalty units.
(6) For an application under subsection
(1)— (a) the engaged
person is
liable to
pay the funded
non-government service
provider or
NDIS non-government
service provider the fee mentioned in subsection
(2)(d); and (b) if the service provider pays the fee,
the amount of the fee is a
debt payable
by the engaged
person to
the service provider. (7)
Subsection (6) applies subject to—
(a) a written
agreement entered
into between
the funded non-government service
provider or
NDIS non-government service
provider and
the engaged person;
or (b) an industrial instrument under
the Industrial Relations
Act
2016 ; or (c)
another document
that regulates
wages and
conditions of
employment and
is enforceable under
any of the
following— (i)
the Fair Work Act 2009 (Cwlth);
Page
42 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 53]
(ii) the
Fair Work
(Transitional Provisions and
Consequential Amendments) Act 2009
(Cwlth); (iii)
the repealed Workplace
Relations Act
1996 (Cwlth).
(8) Subsections (5) to (7) do not apply to
a sole trader. 53 Notice of change of engagement, or
name and contact details in prescribed notice
application (1) This section applies if a prescribed
notice application is made about an
engaged person
and any of
the following (each
a relevant change
) happens before
the chief executive
has issued a prescribed notice to the
engaged person in relation to the
application— (a) the engaged person’s name or contact
details, as stated in the application, change;
(b) the engaged
person’s engagement, as
stated in
the application, ends. (2)
The
engaged person must give notice, in the approved form, to
the
chief executive of the relevant change within 14 days after
the
relevant change happens. Maximum penalty—10 penalty
units. (3) The approved form mentioned in
subsection (2) must provide for an engaged
person to give notice withdrawing the person’s consent to
screening under this part. 54 Decision on
application (1) This section applies if a prescribed
notice application is made about an engaged person.
(2) The chief
executive must
decide the
application by
issuing either of the
following unless the application is withdrawn— (a)
a notice declaring
the application for
the prescribed notice is
approved (a positive notice );
Current as at [Not applicable]
Page
43
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 54]
Not authorised —indicative
only (b) a
notice declaring
the application for
the prescribed notice is
refused (a negative notice ).
(3) Subject to
subsection (4), the
chief executive
must issue
a positive notice to the engaged person
if the chief executive— (a) is
not aware of
any police information about
the engaged person; or (b)
is
not aware of a conviction of the engaged person for
any
offence but is aware that there is 1 or more of the
following about the engaged person—
(i) investigative information;
(ii) a charge for an
offence other than a disqualifying offence;
(iii) a charge for a
disqualifying offence that has been dealt with other
than by a conviction; or Note for subparagraph (iii)—
See sections 86 and
132(6) in
relation to
charges for
disqualifying offences that have not been
dealt with. (c) is aware of a conviction of the
engaged person for an offence other than a serious
offence. (4) The chief executive is required to
issue a positive notice under subsection
(3)(b) or (c) unless the chief executive is satisfied it
is an exceptional case
in which it
would not
be in the
best interests of
people with a disability for the chief executive to
issue a positive notice. (5)
If
the chief executive is satisfied under subsection (4) that it
is an exceptional case, the chief executive
must issue a negative notice. (6)
Subject to
subsection (8), the
chief executive
must issue
a positive notice to the engaged person
if the chief executive— (a) has, under
section 82, cancelled a negative notice issued to the engaged
person; or (b) has issued
an eligibility declaration to
the engaged person and the
eligibility declaration has not expired. Page 44
Current as at [Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 54]
Not authorised —indicative only
(7) The chief
executive must
issue a
negative notice
to the engaged person
if the chief executive is aware the person is a relevant
disqualified person,
other than
only because
the person is subject to either or both of
the following— (a) a temporary offender prohibition
order; (b) an interim sexual offender
order. (8) Subject to
subsection (11), the
chief executive
must issue
a negative notice
to an engaged
person to
whom subsection
(6)(a) or (b) applies if the chief executive is aware
of any police
information about
the person, other
than information
known to the chief executive at the time of taking
the
action mentioned in the subsection. (9)
Subject to
subsection (11), the
chief executive
must issue
a negative notice to the engaged person
if the chief executive is aware the person— (a)
is a
relevant disqualified person because the person is
subject to
a temporary offender
prohibition order
or interim sexual offender order;
or (b) has been a relevant disqualified
person at any time but is no longer
a relevant disqualified person
(other than
a person who was a relevant disqualified
person by reason of a conviction, sentence or order that was
set aside on appeal); or (c)
has
been convicted of a serious offence. (10)
Subject to
subsection (11), the
chief executive
must issue
a negative notice to the engaged person
if the chief executive is aware the person has been convicted of
a serious offence. (11) The
chief executive
is required to
issue a
negative notice
under subsection (8), (9) or (10) unless the
chief executive is satisfied it is an exceptional case in which
it would not harm the best interests
of people with
a disability for
the chief executive to
issue a positive notice. (12) If the chief
executive is satisfied under subsection (11) that it
is an exceptional case,
the chief executive
must issue
a positive notice. Current as at
[Not applicable] Page 45
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 55]
55 Decision-making under s 54 in relation
to discretionary matters (1)
This
section applies if the chief executive is deciding whether
or
not there is an exceptional case for a person. (2)
If the chief
executive is
aware that
a person has
been convicted of, or
charged with, an offence, the chief executive must have regard
to the following— (a) in relation to the commission, or
alleged commission, of an offence by the person—
(i) whether it is a conviction or a
charge; and (ii) whether the
offence is a serious offence and, if it is, whether it is a
disqualifying offence; and (iii) when the offence
was committed or is alleged to have been
committed; and (iv) the
nature of
the offence and
its relevance to
engagement that involves people with a
disability; and (v) in the case of a
conviction—the penalty imposed by
the court and
if it decided
not to impose
an imprisonment order for the offence, or
decided not to make a disqualification order under
section 137, the court’s reasons for its decision;
(b) any information about
the person given
to the chief
executive under section 118 or 119;
(c) a report, if any, about the person’s
mental health given to the chief executive under section
126; (d) any information about
the person given
to the chief
executive under section 128 or 129;
(e) anything else
relating to
the commission, or
alleged commission, of
the offence that
the chief executive
reasonably considers to be relevant to the
assessment of the engaged person. Page 46
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 56]
(3) If the
chief executive
is aware of
investigative information about a person,
the chief executive must have regard to the following— (a)
when the
acts or
omissions constituting the
alleged offence
to which the
investigative information relates
were
committed; (b) anything else relating to the
commission of the acts or omissions that the chief executive
reasonably considers relevant to the assessment of the
engaged person. 56 Actions of chief executive after
making decision on application (1)
After making a decision about a prescribed
notice application, the chief executive
must issue
a prescribed notice
to the engaged
person. (2) If the
prescribed notice
is a negative
notice, the
prescribed notice
must be
accompanied by
a notice stating
the following— (a)
the reasons for
the chief executive’s decision
on the application; (b)
the
relevant review and appeal information. (3)
The notice must
also include a
copy of
part 5,
division 11,
subdivision 1. (4)
After the chief executive issues the
prescribed notice to the engaged person under this section, the
chief executive must give notice to the funded
non-government service provider or NDIS
non-government service
provider stating
whether the
engaged person was given a positive notice
or negative notice. (5) Subsection (4)
does not
apply in
relation to
an NDIS non-government
service provider who is a sole trader. (6)
Within 14 days after a prescribed notice is
issued under this section to
an engaged person
who previously held
another prescribed
notice, or an exemption notice, the engaged person
must
give the chief executive— Current as at [Not applicable]
Page
47
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 57]
(a) the previously held
prescribed notice
or exemption notice;
and (b) if the
engaged person
previously held
a prescribed notice
that was
a positive notice—the positive
notice card previously
held by the engaged person. Maximum penalty
for subsection (6)—10 penalty units. 57
Chief
executive to invite submissions from engaged person about
particular information (1) This section
applies if, for a prescribed notice application, the
chief executive
must decide
whether or
not there is
an exceptional case for a person.
(2) If the chief executive proposes to
decide the application by issuing a
negative notice,
the chief executive
must give
the engaged person a notice—
(a) stating the police information about
the engaged person that the chief executive is aware of;
and (b) inviting the engaged person to give
the chief executive, within a stated time, a written
submission about why the chief executive should not issue a
negative notice. (3) The stated time must be reasonable
and, in any case, at least 7 days after the
chief executive gives the notice to the engaged person.
(4) Before deciding
the application, the
chief executive
must consider
any submission received
from the
engaged person
within the stated time. 58
Currency of prescribed notice and positive
notice card (1) A negative notice remains current
until it is cancelled under division
8. (2) A positive notice remains current for
3 years after it is issued, unless it is
earlier cancelled under division 8. Page 48
Current as at [Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 59]
(3) A positive
notice card
relating to
a positive notice
remains current for the
same period as the positive notice. Not
authorised —indicative only
Division 6 Issue of
exemption notices for funded non-government service
providers and NDIS non-government
service providers 59 Application for exemption
notice (1) A funded
non-government service
provider or
an NDIS non-government service
provider who
proposes to
start engaging, or
continue engaging, a person who holds a WWC positive notice
(the engaged person ) at a service
outlet of the service provider,
may apply to
the chief executive
for an exemption notice
about the engaged person. (2) The application
must be— (a) in the approved form; and
(b) signed by, or on behalf of, the funded
non-government service provider
or NDIS non-government service
provider; and (c)
signed by
the engaged person,
unless the
engaged person is a sole
trader. (3) The approved form must include
provision for— (a) identifying information about the
engaged person; and (b) certification by
the following entity
that the
entity has
sighted documents, relating
to proof of
the engaged person’s
identity, prescribed by regulation— (i)
for an application by
a funded non-government service
provider or
an NDIS non-government service
provider, other
than a
sole trader—the service
provider; (ii) for an
application by a sole trader—a prescribed person;
and Current as at [Not applicable]
Page
49
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 60]
(c) a declaration by the engaged person
that— (i) he or she holds a WWC positive notice;
and (ii) his
or her WWC
positive notice
has not been
suspended under the Working with Children
Act; and (d) the
engaged person’s
consent to
screening under
this part.
(4) On receiving the application, the
chief executive may ask the funded
non-government service
provider, NDIS
non-government service
provider or
engaged person
for further information that
the chief executive
reasonably considers
necessary to establish the engaged person’s identity.
60 Notice of change of engagement, or
name and contact details in exemption notice
application (1) This section
applies if
an exemption notice
application is
made
about an engaged person and any of the following (each
a relevant change
) happens before
the chief executive
has issued an exemption notice to the
engaged person in relation to the application—
(a) the engaged person’s name or contact
details, as stated in the application, change;
(b) the engaged
person’s engagement, as
stated in
the application, ends. (2)
The
engaged person must give notice, in the approved form, to
the
chief executive of the relevant change within 14 days after
the
relevant change happens. Maximum penalty—10 penalty
units. (3) The approved form mentioned in
subsection (2) must provide for an engaged
person to give notice withdrawing the person’s consent to
screening under this part. Page 50 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 61]
61 Decision on application
(1) This section
applies if
an exemption notice
application is
made
about an engaged person. (2) The
chief executive
must decide
the application by
issuing either of the
following unless the application is withdrawn— (a)
a notice declaring
the application for
the exemption notice is
approved (a positive exemption notice
); (b) a
notice declaring
the application for
the exemption notice is
refused (a negative exemption notice
). (3) The chief
executive must issue a positive exemption notice to
the
engaged person if— (a) the chief
executive is
not aware of
any police information
about the engaged person; and (b)
the
chief executive— (i) has, under
section 62, been
advised that
the engaged person is the holder of a WWC
positive notice whose
WWC positive notice
is not suspended under
the Working with Children Act; and
(ii) has
not, under
section 62, been
advised to
undertake further screening of the engaged
person under this part. Note—
If a
person’s WWC positive notice is suspended under the Working
with
Children Act after the application is made, the person’s consent
to employment screening may be withdrawn under
section 132(7). (4) If subsection
(3) does not
apply, the
chief executive
must decide the
application in the way the chief executive would be
required to decide the application if it
were a prescribed notice application. (5)
For
subsection (4), sections 54(3) to (12), 55 and 57 apply in
relation to making the decision as
if— Current as at [Not applicable]
Page
51
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 62]
(a) a reference
in the sections
to a prescribed notice
application were
a reference to
an exemption notice
application; and (b)
a
reference in the sections to issuing a positive notice
were
a reference to issuing a positive exemption notice;
and (c) a reference in
the sections to issuing a negative notice were a reference
to issuing a negative exemption notice. 62
Obtaining advice from chief executive
(employment screening) (1)
This section
applies if
an exemption notice
application is
made
about a person who claims to be the holder of a WWC
positive notice. (2)
For
deciding the application, the chief executive may ask the
chief executive
(employment screening) to
advise the
chief executive— (a)
whether or
not the person
is the holder
of a WWC
positive notice and, if so, the expiry date
of the WWC positive notice; and (b)
whether or not the person’s WWC positive
notice has been suspended under the Working with
Children Act; and (c) if the person is
the holder of a WWC positive notice— whether
the chief executive
may need to
undertake further
screening of the person under this part. (3)
For
subsection (2), the chief executive’s request may include
the
following information— (a) the
person’s name
and any other
name that
the chief executive
believes the person may use or may have used; (b)
the
person’s gender and date and place of birth; (c)
the
person’s address; (d) any number or date given by the person
about the WWC positive notice the person holds or claims
to hold. Page 52 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 63]
(4) The chief
executive (employment screening) must
comply with the
request. (5) However— (a)
the chief executive
(employment screening) may
give advice
under subsection
(2)(c) only if
the chief executive
(employment screening) is
aware of
police information
about the person; and (b) if paragraph (a)
applies, the advice must be that the chief executive may
need to undertake further screening of the person under
this part. (6) If the chief executive (employment
screening) gives the chief executive advice under subsection
(2)(c), the advice must be accompanied by
a notice stating
that no
adverse inference
about the
person’s criminal
history or
suitability for
engagement, or
continued engagement, in
regulated engagement may
be drawn by the fact the advice was given. (7)
In
this section— chief executive
(employment screening) means
the chief executive
of the department in
which the
Working with
Children Act is administered.
63 Actions of chief executive after
making decision on application (1)
After making
a decision about
an exemption notice
application, the
chief executive
must issue
an exemption notice to the
engaged person. (2) If the
exemption notice
is a negative
exemption notice,
the exemption notice must be accompanied
by a notice stating the following— (a)
the reasons for
the chief executive’s decision
on the application; (b)
the
relevant review and appeal information. (3)
The notice must
also include a
copy of
part 5,
division 11,
subdivision 1. Current as at
[Not applicable] Page 53
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 64]
(4) After the chief executive issues the
exemption notice to the engaged person under this section, the
chief executive must give notice to the funded
non-government service provider or NDIS
non-government service
provider stating
whether the
engaged person
was given a
positive exemption
notice or
negative exemption notice.
(5) Subsection (4)
does not
apply in
relation to
an NDIS non-government
service provider who is a sole trader. (6)
Within 14 days after an exemption notice is
issued under this section to
an engaged person
who previously held
another exemption notice
or a prescribed notice, the engaged person must give the
chief executive— (a) the previously held
exemption notice
or prescribed notice;
and (b) if the
engaged person
previously held
a prescribed notice
that was
a positive notice—the positive
notice card previously
held by the engaged person. Maximum penalty
for subsection (6)—10 penalty units. 64
Currency of exemption notice
(1) A negative
exemption notice
remains current
until it
is cancelled under division 8.
(2) A positive exemption notice remains
current while its holder holds a
WWC positive notice,
unless it
is earlier cancelled
under division 8. Page 54
Current as at [Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 65]
Division 7 Obligations and
offences relating to prescribed notices and
exemption notices Not
authorised —indicative only
Subdivision 1 Engagement of
persons by funded non-government service provider or
NDIS
non-government service provider 65
Starting engagement of certain regular
engaged persons other than volunteers (1)
This
section applies in relation to a person if— (a)
the
person is not engaged by a funded non-government
service provider
or an NDIS
non-government service
provider at a service outlet of the service
provider but has previously been engaged by the service
provider at a service outlet of the service provider;
and (b) it is less than 1 year since the
person was last engaged by the service provider at a service
outlet of the service provider; and (c)
after considering any agreement relating to
a proposed engagement of the person and the person’s
engagement during the period when the person was last
engaged by the service provider
at a service
outlet of
the service provider,
the service provider
reasonably expects
that the
person is
likely to
carry out
work as
part of
the proposed engagement for
the minimum frequency
for regulated engagement; and
(d) under the
proposed engagement, the
person is
to be engaged
by the service
provider other
than as
a volunteer. (2)
The funded non-government service
provider or
NDIS non-government
service provider must not engage the person at a service
outlet of the service provider unless— Current as at
[Not applicable] Page 55
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 66]
(a) the person
has a current
positive notice
or current positive
exemption notice and the service provider has notified, in the
approved form, the chief executive that the service
provider is proposing to engage the person at a service outlet
of the service provider; or (b)
the
service provider has applied for a prescribed notice
or exemption notice,
or a further
prescribed notice
or exemption notice, about the
person. Maximum penalty— (a)
for
an individual guilty under chapter 2 of the Criminal
Code
of an offence—50 penalty units; or (b)
for a funded
non-government service
provider or
an NDIS non-government service
provider—250 penalty
units. (3)
The approved form
for subsection (2)(a) must
include provision
for— (a) identifying information about the
person; and (b) certification by
the funded non-government service
provider or NDIS non-government service
provider that the service provider has sighted the
documents, relating to proof of
the person’s identity,
prescribed under
a regulation. (4)
This
section does not apply to a sole trader. 66
Starting engagement of new engaged persons
other than volunteers (1)
This
section applies in relation to a person if— (a)
the
person is not engaged by a funded non-government
service provider
or an NDIS
non-government service
provider at a service outlet of the service
provider; and (b) a funded non-government service
provider or an NDIS non-government service
provider proposes
to engage the person at a
service outlet of the service provider; and Page 56
Current as at [Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 66]
Not authorised —indicative only
(c) after considering any agreement
relating to the proposed engagement, the
service provider
reasonably expects
that
the person is likely to carry out work as part of the
proposed engagement for
the minimum frequency
for regulated engagement; and
(d) under the
proposed engagement, the
person is
to be engaged
by the service
provider other
than as
a volunteer. (2)
The funded non-government service
provider or
NDIS non-government
service provider must not engage the person at a service
outlet of the service provider unless— (a)
the person has
a current positive
notice or
current positive
exemption notice and the service provider has notified, in the
approved form, the chief executive that the service
provider is proposing to engage the person at a service outlet
of the service provider; or (b)
the
service provider has applied for a prescribed notice
or exemption notice,
or a further
prescribed notice
or exemption notice, about the
person. Maximum penalty— (a)
for
an individual guilty under chapter 2 of the Criminal
Code
of an offence—50 penalty units; or (b)
for a funded
non-government service
provider or
an NDIS non-government service
provider—250 penalty
units. (3)
The approved form
for subsection (2)(a) must
include provision
for— (a) identifying information about the
person; and (b) certification by
the funded non-government service
provider or NDIS non-government service
provider that the service provider has sighted the
documents, relating to proof of
the person’s identity,
prescribed under
a regulation. (4)
This
section does not apply to a sole trader. Current as at
[Not applicable] Page 57
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only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 67]
67 Continuing engagement of persons other
than volunteers (1) This section applies in relation to a
person if— (a) the person
is engaged by
a funded non-government service
provider or
an NDIS non-government service
provider at a service outlet of the service
provider other than as a volunteer; and (b)
after considering any
agreement relating
to the engagement and
the hours or
times that
the person previously
carried out work for the service provider at a service
outlet of
the service provider,
the service provider
reasonably expects that the person is likely to carry
out work as
part of
the engagement for
the minimum frequency for regulated
engagement; and (c) the person
does not
have a
current positive
notice or
current positive exemption notice.
(2) The funded
non-government service
provider or
NDIS non-government
service provider must not continue to engage the person at a
service outlet of the service provider unless the
service provider
has applied for
a prescribed notice
or exemption notice, or a further
prescribed notice or exemption notice, about
the person. Maximum penalty— (a)
for
an individual guilty under chapter 2 of the Criminal
Code
of an offence—50 penalty units; or (b)
for a funded
non-government service
provider or
an NDIS non-government service
provider—250 penalty
units. (3)
This
section does not apply to a sole trader. 67A
Restriction on sole trader providing
disability services A person who
is a sole
trader must
not provide disability services
as an NDIS
non-government service
provider at
a service outlet of the service provider
unless— Page 58 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 67B]
(a) the person
has a current
positive notice
or current positive
exemption notice; or (b) the
person holds
a WWC positive
notice that
is not suspended under
the Working with Children Act and the person has
applied for an exemption notice. Maximum
penalty—250 penalty units. 67B Currency of
prescribed notice for sole trader (1)
This
section applies if— (a) a sole
trader providing
disability services
as an NDIS
non-government service provider at a service
outlet of the service provider has a positive notice
(the previous notice
);
and (b) the sole trader applied for a further
prescribed notice or exemption notice
at least 30
days before
the previous notice expires;
and (c) the application has not been
decided. (2) Despite section
58(2), the
previous notice
remains current
from the
day it would
otherwise end
under that
subsection until
the application is
decided or
withdrawn, unless
the previous notice is earlier cancelled
under division 8. 68 Starting engagement of
volunteers (1) A funded
non-government service
provider or
an NDIS non-government
service provider must not engage a volunteer at a service
outlet of the service provider unless— (a)
the volunteer has
a current positive
notice or
current positive
exemption notice and the service provider has notified, in the
approved form, the chief executive that the service
provider is proposing to engage the volunteer at a service
outlet of the service provider; or (b)
the
volunteer holds a WWC positive notice that is not
suspended under the Working with Children
Act and the Current as at [Not applicable]
Page
59
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only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 69]
service provider
has applied for
an exemption notice
about the volunteer. Maximum
penalty— (a) for an individual guilty under chapter
2 of the Criminal Code of an offence—50 penalty units;
or (b) for a
funded non-government service
provider or
an NDIS non-government service
provider—250 penalty
units. Note—
See section 46(7)
for particular volunteers who
are not volunteers engaged by a
non-government service provider. (2)
The approved form
mentioned in
subsection (1)(a) must
include provision for— (a)
identifying information about the volunteer;
and (b) certification by
the funded non-government service
provider or NDIS non-government service
provider that the service provider has sighted documents,
relating to proof of
the volunteer’s identity,
prescribed under
a regulation. 69
Currency of prescribed notice for volunteer
continuing engagement (1)
This
section applies if— (a) a volunteer
engaged by
a funded non-government service
provider or
an NDIS non-government service
provider at a service outlet of the service
provider has a positive notice (the previous
notice ); and (b)
the service provider
applied for
a further prescribed notice
or an exemption
notice about
the volunteer at
least 30 days before the previous notice
expires; and (c) the application has not been
decided. (2) Despite section
58(2), the previous notice
remains current
from the
day it would
otherwise end
under that
subsection Page 60
Current as at [Not applicable]
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Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 70]
until the
application is
decided or
withdrawn unless
the previous notice is earlier cancelled
under division 8. Note— See, however,
section 86 for the effect of a suspension of a positive
notice. 70
Prohibited engagement (1)
This
section applies if a person (the engaged
person ) does not have a current
positive notice or current positive exemption notice.
(2) A funded
non-government service
provider or
an NDIS non-government service
provider must
not engage, or
continue to engage, the engaged person at a
service outlet of the service provider if the service
provider— (a) has applied for a prescribed notice or
exemption notice about the engaged person and has been
notified by the chief executive, other than as provided
under paragraph (b)(i), that
the engaged person
has withdrawn the
engaged person’s consent to screening under
this part; or (b) has been
given— (i) a notice
of deemed withdrawal relating
to the engaged person
under section 132(5); or (ii) a notice under
section 131(3) because of a change in
police information mentioned
in section 131(3)(g); or
(c) is aware
that a
negative notice
or negative exemption
notice has
been issued
to the engaged
person and
is current. Maximum
penalty— (a) for paragraph (a)— (i)
for an individual guilty
under chapter
2 of the
Criminal Code of an offence—40 penalty
units; or Current as at [Not applicable]
Page
61
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only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 71]
(ii) for
a funded non-government service
provider or
an NDIS non-government service
provider—200 penalty units;
or (b) for paragraphs (b) and (c)—
(i) for an
individual guilty
under chapter
2 of the
Criminal Code of an offence—200 penalty
units or 2 years imprisonment; or (ii)
for a funded
non-government service
provider or
an
NDIS non-government service provider—1000 penalty
units. (3) This section does not apply to a sole
trader. Subdivision 2 Obligations if
holder of negative notice or negative exemption
notice, or prescribed notice or
exemption notice application is
withdrawn 71
Person holding negative notice or negative
exemption notice not to apply for, or start or
continue in, regulated engagement etc. (1)
A
person who has a current negative notice or current negative
exemption notice must not—
(a) sign an
application as
an engaged person
under section 52 or
59; or (b) apply for, or start or continue in,
regulated engagement. Maximum penalty—500 penalty
units or
5 years imprisonment. (2)
However, if the person held a positive
notice but a negative notice or
negative exemption
notice was
substituted for
the positive notice under section 83(1),
85 or 87, a court may not find the person contravened subsection
(1) unless the court is Page 62 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 72]
satisfied that
notice of
the substitution was
given to
the person. (3)
Also, if
the person held
a positive exemption
notice but
a negative exemption
notice was
substituted for
the positive exemption notice
under section 84(1) or 89, a court may not find the person
contravened subsection (1) unless the court is satisfied
that notice
of the substitution was
given to
the person. 72
Person who has withdrawn consent to
screening not to start or continue in regulated
engagement A person must not start or continue in
regulated engagement if— (a)
a prescribed notice
application or
exemption notice
application about a person was made;
but (b) the person withdrew the person’s
consent to screening under this part before a prescribed
notice or exemption notice was issued to the person.
Maximum penalty— (a)
if
the person’s consent to screening is withdrawn under
section 132(2)—100 penalty
units or
1 year’s imprisonment;
or (b) otherwise—500 penalty units or 5 years
imprisonment. Subdivision 3 Changes in
police information 73 Acquiring police information
For
a person who does not have police information, there is
taken to be a change in the person’s police
information if the person acquires police information.
Current as at [Not applicable]
Page
63
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 74]
74 Effect of conviction for serious
offence (1) This section applies to a person with
a current positive notice or positive exemption notice if the
person is convicted of a serious offence. (2)
The person must
immediately return
the positive notice
or positive exemption
notice to
the chief executive, unless
the person has a reasonable excuse.
Maximum penalty—100 penalty units.
(3) Until and unless a prescribed event
happens for the person, the person must not
start or continue in regulated engagement. Maximum
penalty—500 penalty
units or
5 years imprisonment. (4)
For
subsection (3), a prescribed event happens for a
person if the person’s positive
notice or
positive exemption
notice is
cancelled and
the person is
issued a
new positive notice
or positive exemption notice.
(5) In this
section, a
reference to
a person’s positive
notice is
taken to
include a
reference to
any positive notice
card relating to the
notice. 75 Change in police information of person
engaged by funded non-government service provider or
NDIS non-government service provider
(1) Subsections (2) to (4) apply to a
person engaged by a funded non-government service
provider or
an NDIS non-government
service provider, other than a sole trader, if there is a
change in the person’s police information. (2)
The person must
immediately disclose
to the funded
non-government service
provider or
NDIS non-government service provider
that there has been a change in the person’s police
information. Maximum penalty—100 penalty units.
(3) On receiving
the disclosure, the
funded non-government service
provider or
NDIS non-government service
provider Page 64
Current as at [Not applicable]
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Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 75]
must
not continue to engage the person at a service outlet of
the
service provider without applying for a prescribed notice
or
exemption notice, or further prescribed notice or exemption
notice, about the person.
Maximum penalty— (a)
for
an individual guilty under chapter 2 of the Criminal
Code
of an offence—100 penalty units; or (b)
for a funded
non-government service
provider or
an NDIS non-government service
provider—500 penalty
units. (4)
To
remove any doubt, it is declared that— (a)
it
is not a requirement of subsection (2) that the person
give the
funded non-government service
provider or
NDIS
non-government service provider any information about the change
other than that a change has happened; and
(b) it is not a requirement of subsection
(3) that the funded non-government service
provider or
NDIS non-government service
provider stop
engaging the
person at
a service outlet
of the service
provider on
receiving the disclosure.
(5) Subsections (6) and (7) apply to a
person who is a sole trader if—
(a) the person
is providing disability services
as an NDIS
non-government service provider at a service
outlet of the service provider; and
(b) there is a change in the person’s
police information. (6) The person
must immediately disclose
to the chief
executive that
there has
been a
change in
the person’s police
information. Maximum
penalty—100 penalty units. (7) To remove any
doubt, it is declared that it is not a requirement
of
subsection (6) that the person give the chief executive any
Current as at [Not applicable]
Page
65
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 76]
information about
the change other
than that
a change has
happened. Not
authorised —indicative
only 76 Change in police
information of person engaged by department
(1) This section applies to a person
engaged by the department at a service outlet
of the department if there is a change in the person’s police
information. (2) The person must immediately disclose
to the chief executive that there
has been a
change in
the person’s police
information. Maximum
penalty—100 penalty units. (3) If the chief
executive receives information about a change in
the
person’s police information under subsection (2), the chief
executive may,
under section
50, ask the person
for written consent for the
chief executive to undertake screening of the person under
this part. (4) To remove any doubt, it is declared
that it is not a requirement of subsection
(2) that the person give the chief executive any
information about
the change other
than that
a change has
happened. 77
Change in police information of other
persons (1) This section applies if—
(a) a person has a current positive notice
or current positive exemption notice; and (b)
there has
been a
change in
the person’s police
information since the notice was issued;
and (c) the person
is not engaged
at a service
outlet by
the department, a funded non-government
service provider or an NDIS non-government service
provider. (2) Before starting
engagement with
a funded non-government service provider
or an NDIS non-government service provider at
a service outlet
of the service
provider, the
person must
Page
66 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 78]
notify the service provider that there has
been a change in the person’s police information since the
person’s current positive notice or current exemption notice was
issued. Maximum penalty—100 penalty units.
(3) Subsection (2)
does not
apply in
relation to
an NDIS non-government
service provider who is a sole trader. (4)
On receiving the
disclosure, the
funded non-government service
provider or
NDIS non-government service
provider must not engage
the person at a service outlet of the service provider
without applying
for
a further prescribed notice or exemption notice
about the person. Maximum penalty— (a)
for
an individual guilty under chapter 2 of the Criminal
Code
of an offence—100 penalty units; or (b)
for a funded
non-government service
provider or
an NDIS non-government service
provider—500 penalty
units. (5)
Subsection (6) applies if the person is a
sole trader. (6) Before providing
disability services
as an NDIS
non-government service
provider at
a service outlet
of the service
provider, the
person must
notify the
chief executive
that there
has been a
change in
the person’s police
information since
the person’s current
positive notice
or current exemption notice was
issued. Maximum penalty—100 penalty units.
Subdivision 4 General
78 False or misleading disclosure
A
person must not— (a) give a
funded non-government service
provider or
an NDIS non-government service
provider who
is Current as at [Not applicable]
Page
67
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 79]
proposing to engage the person information
for this part that is false or misleading in a material
particular; or (b) state anything to the chief executive
for this part that the person knows
is false or
misleading in
a material particular. Maximum
penalty—100 penalty
units or
2 years imprisonment. 79
False
or misleading documents (1) A person must
not give the chief executive a document for this
part containing information the
person knows
is false or
misleading in a material particular.
Maximum penalty—100 penalty
units or
2 years imprisonment. (2)
Subsection (1) does not apply to a person if
the person, when giving the document— (a)
tells the
chief executive, to
the best of
the person’s ability, how it
is false or misleading; and (b)
if
the person has, or can reasonably obtain, the correct
information—gives the correct
information. 80 Return of cancelled positive notice to
chief executive (1) This section applies to a person with
a current positive notice ( old
notice ) if the chief executive cancels the notice
and issues a negative notice or negative exemption
notice to the person. (2) The person must
immediately return the old notice and any positive notice
card issued to the person to the chief executive,
unless the person has a reasonable
excuse. Maximum penalty—100 penalty units.
Page
68 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 81]
81 Return of cancelled positive exemption
notice to chief executive (1)
This section
applies to
a person with
a current positive
exemption notice ( old
notice ) if the chief
executive cancels the
notice and
issues a
negative exemption
notice to
the person. (2)
The
person must immediately return the old notice to the chief
executive, unless the person has a
reasonable excuse. Maximum penalty—100 penalty units.
Division 8 Cancellation of
prescribed notices and exemption notices etc.
82 Cancellation of negative notice or
negative exemption notice and issuing of positive notice or
positive exemption notice (1)
This section
applies if
the chief executive
has issued a
negative notice or negative exemption notice
to a person and the notice is current. (2)
However, this
section does
not apply to
the person if
the person is a relevant disqualified
person. (3) The person
may apply to
the chief executive
to cancel the
notice. (4)
The
application may not be made less than 2 years after the
issue of the notice or any previous
application by the person under this section, unless—
(a) the decision
to issue the
negative notice
or negative exemption
notice was
based on
wrong or
incomplete information;
or (b) the negative
notice or
negative exemption
notice was
issued because
the person was
a relevant disqualified person
and the person
is no longer
a relevant disqualified
person. (5) The application must be—
Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
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(a) in the approved form; and
(b) signed by the person; and
(c) accompanied by
the fee prescribed under
a regulation for the
application. (6) The person may state in the
application anything the person considers
relevant to the chief executive’s decision including,
in
particular, any change in the person’s circumstances since
the
negative notice or negative exemption notice was issued.
(7) Sections 54, 55, 56 and 57 apply to
the application as if— (a) the
application were
an application for
a prescribed notice;
and (b) a reference in the provisions to
issuing a positive notice were a reference to granting the
application; and (c) a reference in the provisions to
issuing a negative notice were a reference to refusing the
application. (8) If the
chief executive
grants the
application, the
chief executive
must— (a) for an application relating to a
negative notice—cancel the negative
notice and
issue a
positive notice
to the person;
or (b) for an
application relating
to a negative
exemption notice—cancel
the negative exemption notice and issue a positive
exemption notice to the person. (9)
However, the chief executive may issue a
positive notice or positive exemption
notice under
subsection (8) only
if the chief
executive is
satisfied the
person is
proposing, if
the positive notice or positive exemption
notice is issued, to be engaged in regulated
engagement. 83 Chief executive may cancel a
prescribed notice and substitute another prescribed
notice (1) The chief
executive may
cancel a
positive notice
(the cancelled
notice )
about a
person and
substitute a
negative notice if the
chief executive is satisfied that— Page 70
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Screening of particular persons engaged by department or particular
funded service providers [s 83]
(a) the decision on the application for
the cancelled notice was based
on wrong or
incomplete information and,
based on the correct or complete
information, the chief executive should issue the negative
notice; or (b) it is
appropriate to
cancel the
positive notice
having regard
to— (i) information received under section
117, 118, 119 or 130 about
the person, other
than information known
to the chief
executive at
the time the
cancelled notice was issued; or
(ii) a
decision of
a court made
after the
cancelled notice
was issued, including
the reasons for
the decision, relating to an offence
committed by the person. (2)
If
the person is engaged by a funded non-government service
provider or an NDIS non-government service
provider at the time the
negative notice
is substituted, the
chief executive
must
give notice of the substitution to the service provider.
(3) Subsection (2) does not apply if the
person is a sole trader. (4) The
chief executive
may cancel a
negative notice
(the cancelled
notice ) about a
person and,
subject to
subsection (7), substitute
it with a positive notice if— (a)
the
chief executive is satisfied that the decision on the
application for the cancelled notice was
based on wrong or incomplete information and, based on the
correct or complete information, the chief executive
should issue a positive notice to the person; or
(b) the negative notice was issued because
the person was a relevant disqualified person and the person
is no longer a relevant disqualified person; or
(c) the chief executive is satisfied that
it is appropriate to cancel the negative notice having
regard to information not known to the chief executive at
the time the negative notice was issued. Current as at
[Not applicable] Page 71
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Screening of particular persons engaged by department or particular
funded service providers [s 83]
(5) In making
a decision under
subsection (1)
or (4), the
chief executive must
make the decision as if it were a decision about
an
application for a prescribed notice and, for that purpose,
sections 54, 55
and 56 apply
to the decision
under this
section. (6)
If
the chief executive proposes to substitute a negative notice
as
mentioned in subsection (1), the chief executive must first
comply with section 57 as if—
(a) the reference in section 57(2) to
deciding the application by issuing
a negative notice
were a
reference to
substituting a negative notice for a
positive notice; and (b) the reference in
section 57(4) to deciding the application were a reference
to substituting a negative notice for a positive
notice. (7) If, for
subsection (4),
the chief executive’s decision
under subsection (5)
is that the person should be issued a positive notice, the
chief executive may issue a positive notice to the
person only
if the chief
executive is
satisfied the
person is
proposing, if
the positive notice
is issued, to
be engaged in
regulated engagement. (8)
The chief executive
may cancel a
person’s negative
notice under subsection
(4) even if— (a) a positive
notice is
not issued to
the person under
subsection (7) until a later time; or
(b) a positive
notice is
never issued
to the person
under subsection
(7). (9) The chief executive may act under
subsection (4) only on the chief executive’s own
initiative. Note— For
the chief executive’s power
to cancel a
negative notice
on application by a person, see section
82. Page 72 Current as at
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 84]
84 Chief executive may cancel an
exemption notice and substitute another exemption notice
(1) The chief executive may cancel a
positive exemption notice (the cancelled
notice ) about a person and substitute a
negative exemption notice if the chief executive is
satisfied that— (a) the decision on the application for
the cancelled notice was based
on wrong or
incomplete information and,
based on the correct or complete
information, the chief executive should
issue a
negative exemption
notice to
the
person; or (b) it is
appropriate to
cancel the
cancelled notice
having regard
to— (i) information received under section
117, 118, 119 or 130 about
the person, other
than information known
to the chief
executive at
the time the
cancelled notice was issued; or
(ii) a
decision of
a court made
after the
cancelled notice
was issued, including
the reasons for
the decision, relating to an offence
committed by the person. (2)
If
the person is engaged by a funded non-government service
provider or an NDIS non-government service
provider at the time the
negative exemption
notice is
substituted, the
chief executive must
give notice of the substitution to the service provider.
(3) Subsection (2) does not apply if the
person is a sole trader. (4) The
chief executive
may cancel a
negative exemption
notice (the
cancelled notice
) about a
person and,
subject to
subsection (7), substitute a positive
exemption notice if— (a) the chief
executive is satisfied that the decision on the application for
the cancelled notice was based on wrong or incomplete
information and, based on the correct or complete
information, the chief executive should issue a positive
exemption notice to the person; or Current as at
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Screening of particular persons engaged by department or particular
funded service providers [s 84]
(b) the negative
exemption notice
was issued because
the person was a relevant disqualified
person and the person is no longer a relevant disqualified
person; or (c) the chief executive is satisfied that
it is appropriate to cancel the negative exemption notice
having regard to information not known to the chief executive
at the time the negative exemption notice was
issued. (5) In making
a decision under
subsection (1)
or (4), the
chief executive must
make the decision as if it were a decision about
an exemption notice
application and,
for that purpose,
sections 61, 62
and 63 apply
to the decision
under this
section. (6)
If the chief
executive proposes
to substitute a
negative exemption
notice as
mentioned in
subsection (1), the
chief executive must
first comply with section 57 as if— (a)
the
reference in section 57(2) to deciding the application
by issuing a
negative notice
were a
reference to
substituting a negative exemption notice for
a positive exemption notice; and (b)
the
reference in section 57(4) to deciding the application
were a
reference to
substituting a
negative exemption
notice for a positive exemption
notice. (7) If, for
subsection (4),
the chief executive’s decision
under subsection (5)
is that the person should be issued a positive exemption
notice, the
chief executive
may issue a
positive exemption
notice to
the person only
if the chief
executive is
satisfied the
person is
proposing, if
the positive exemption
notice is issued, to be engaged in regulated
engagement. (8) The chief executive may cancel a
person’s negative exemption notice under
subsection (4) even if— (a) a positive
exemption notice is not issued to the person under subsection
(7) until a later time; or (b) a positive
exemption notice is never issued to the person under subsection
(7). Page 74 Current as at
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 85]
(9) The chief executive may act under
subsection (4) only on the chief executive’s own
initiative. Note— For the chief
executive’s power to cancel a negative exemption notice
on
application by a person, see section 82. 85
Cancellation of positive notice if relevant
disqualified person (1)
This
section applies if a person who is the holder of a positive
notice, including
a positive notice
that is
suspended under
section 86, becomes a relevant disqualified
person other than only because
the person is
subject to
either or
both of
the following— (a)
a
temporary offender prohibition order; (b)
an
interim sexual offender order. (2)
The
chief executive must cancel the positive notice held by the
person and substitute a negative
notice. (3) At the time the chief executive gives
the person the negative notice, the
chief executive
must give
the person a
further notice
stating— (a) the person
can not apply
under section
82 for the cancellation of
the negative notice, even after 2 years; and
(b) the relevant review and appeal
information. (4) Also, if the person is engaged by a
funded non-government service provider
or an NDIS
non-government service
provider, the chief executive must give
notice to the service provider stating the person was given
a negative notice. (5) Subsection (4) does not apply if the
person is a sole trader. Current as at [Not applicable]
Page
75
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 86]
Not authorised —indicative
only 86 Suspension of
positive notice if charged with disqualifying
offence or subject to temporary or interim order
(1) The chief executive must, by notice,
suspend a positive notice held by a person if the person—
(a) is charged with a disqualifying
offence; or (b) becomes a
relevant disqualified person
because the
person is
subject to
a temporary offender
order or
interim sexual offender order.
(2) The notice about the suspension must
state the following— (a) the positive
notice held by the person is suspended; (b)
the
reason for the suspension; (c) how long the
suspension will continue; (d) the effect of
the suspension; (e) the person
must return
the positive notice,
and the positive notice
card, to the chief executive within 7 days after the notice
is given to the person; (f) the relevant
review and appeal information. (3)
Until the suspension ends, the person whose
positive notice is suspended and
who is given
a notice under
subsection (1) must
not apply for,
or start or
continue in,
regulated engagement. Maximum
penalty—500 penalty
units or
5 years imprisonment. (4)
Within 7
days after
a person is
given notice
under subsection (1),
the person must return each of the following to the chief
executive— (a) the positive notice;
(b) the positive notice card relating to
the positive notice. Maximum penalty—100 penalty
units. (5) Also, if the person is engaged by a
funded non-government service provider
or an NDIS
non-government service
Page
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 86]
provider, the chief executive must give
notice to the service provider stating that the positive
notice held by the person is suspended and
the effect of the suspension. (6)
Subsection (5) does not apply if the person
is a sole trader. (7) A notice
under subsection
(5) to a funded
non-government service provider
or an NDIS non-government service provider must state
that— (a) the service provider must not allow
the person to work at a service outlet of the service provider;
and (b) the service
provider must
not terminate the
person’s engagement or
continued engagement solely or mainly because the
person’s positive notice is suspended. (8)
A funded non-government service
provider or
an NDIS non-government
service provider to whom a notice is given under subsection
(5) must not allow the person engaged by the service
provider to
work at
a service outlet
of the service
provider. Maximum
penalty— (a) for an individual guilty under chapter
2 of the Criminal Code of
an offence—200 penalty
units or
2 years imprisonment;
or (b) for a
funded non-government service
provider or
an NDIS non-government service
provider—1000 penalty units. (9)
A funded non-government service
provider or
an NDIS non-government
service provider to whom a notice is given under
subsection (5) about
a person must
not terminate the
person’s engagement or
continued engagement solely
or mainly because the service provider is
given the notice. (10) Without
limiting subsection
(3) and despite section
58(2), a positive notice
remains current
during the
period of
suspension even if it would otherwise end
under section 58(2) during that period. Current as at
[Not applicable] Page 77
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Screening of particular persons engaged by department or particular
funded service providers [s 87]
87 Ending of suspension and issue of
further prescribed notice (1)
This
section applies to a positive notice held by a person that
is
suspended under section 86 (the suspended
notice ). (2) The suspension
ends if— (a) the suspended
notice is
cancelled under
another provision of
this division; or (b) on the chief executive’s own
initiative or on application by the
person— (i) the chief
executive cancels
the suspended notice
and issues a
further positive
notice or
a negative notice to the
person; or (ii) the chief
executive cancels the suspended notice as mentioned in
subsection (5). (3) In making
a decision to
cancel the
suspended notice
and, subject to
subsection (5), issue a further positive notice or a
negative notice to the person, the chief
executive must make the decision as if it were a decision about
an application for a prescribed notice and, for that
purpose, sections 54, 55 and 56 apply to the
decision under this section. (4)
If
the chief executive proposes to issue a negative notice, the
chief executive must first comply with
section 57. (5) The chief executive may cancel the
suspended positive notice without issuing a further prescribed
notice to the person if the chief
executive is
satisfied that
the person is
no longer proposing to be
engaged in regulated engagement, even if a further positive
notice is issued to the person. (6)
Despite an application made by the person as
mentioned in subsection (2)(b), the chief executive is
not required to decide the application— (a)
while a
charge against
the person for
a disqualifying offence is
pending; or Page 78 Current as at
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 88]
(b) while the
person is
a relevant disqualified person
because the
person is
subject to
a temporary offender
prohibition order or interim sexual offender
order; or (c) if the
person has
been convicted
of a disqualifying offence
and— (i) the period
allowed for
an appeal relating
to the conviction or
sentence of the person has not ended; or
(ii) an appeal
relating to the conviction or sentence has started but has
not been decided; or (d) if
the person is
subject to
a final offender
prohibition order,
disqualification order
or final sexual
offender order
and— (i) the period
allowed for
an appeal relating
to the order has not
ended; or (ii) an appeal
relating to the order has started but has not been
decided. 88 Suspension of a positive exemption
notice if WWC positive notice suspended
(1) This section applies if—
(a) a person holds a positive exemption
notice on the basis the person also holds a WWC positive notice;
and (b) the WWC
positive notice
is suspended under
the Working with Children Act.
(2) The chief
executive must
suspend the
person’s positive
exemption notice by notice given to the
person. (3) The notice about the suspension must
state the following— (a) the
positive exemption
notice held
by the person
is suspended; (b)
the
reason for the suspension; (c) how long the
suspension will continue; Current as at [Not applicable]
Page
79
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 88]
Not authorised —indicative
only (d) the effect of
the suspension; (e) the person must return the positive
exemption notice to the chief executive within 7 days after the
notice about the suspension is given to the
person; (f) the relevant review and appeal
information. (4) Until the
suspension ends,
the person whose
positive exemption
notice is
suspended and
who is given
a notice under subsection
(2) must not apply for, or start or continue in, regulated
engagement. Maximum penalty—500 penalty
units or
5 years imprisonment. (5)
Within 7
days after
a person is
given notice
under subsection
(2), the person must
return the
person’s positive
exemption notice to the chief
executive. Maximum penalty—100 penalty units.
(6) Also, if the person is engaged by a
funded non-government service provider
or an NDIS
non-government service
provider, the chief executive must give
notice to the service provider stating the following—
(a) the positive
exemption notice
held by
the person is
suspended; (b)
how
long the suspension will continue; (c)
the
effect of the suspension; (d) that the service
provider must not allow the person to work at a
service outlet of the service provider while the
person’s positive exemption notice is
suspended; (e) the service
provider must
not terminate the
persons engagement or
continued engagement solely or mainly because
the person’s positive
exemption notice
is suspended. (7)
Subsection (6) does not apply if the person
is a sole trader. (8) A funded
non-government service
provider or
an NDIS non-government service
provider to
whom notice
is given Page 80
Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded service providers [s 89]
under subsection (6) must not allow the
person to work at a service outlet
of the service
provider while
the person’s positive
exemption notice is suspended. Maximum
penalty— (a) for an individual guilty under chapter
2 of the Criminal Code of an offence—200 penalty units;
or (b) for a
funded non-government service
provider or
an NDIS non-government service
provider—1000 penalty units. (9)
A funded non-government service
provider or
an NDIS non-government
service provider to whom a notice is given under
subsection (6) about
a person must
not terminate the
person’s engagement or
continued engagement solely
or mainly because the service provider is
given the notice. 89 Ending of suspension and issue of
further exemption notice or prescribed notice
(1) This section applies to a positive
exemption notice held by a person that
is suspended under
section 88 (the
suspended notice
). (2) The suspension
ends if— (a) the suspended
notice is
cancelled under
another provision of
this division; or (b) the suspended
notice ceases
to have effect
under section 64(2)
because the person’s WWC positive notice is cancelled
under the Working with Children Act; or (c)
on
the chief executive’s own initiative or on application
by
the person— (i) the chief
executive cancels
the suspended notice
and issues a
further positive
exemption notice
or negative exemption notice to the
person; or (ii) the chief
executive cancels the suspended notice as mentioned in
subsection (6). (3) If subsection (2)(b) applies—
Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded service providers [s 89]
(a) the chief executive may, on the chief
executive’s own initiative or
on application by
the person, issue
a positive notice or negative notice to
the person; and (b) in making
a decision under
paragraph (a),
the chief executive must
make the decision as if it were a decision about
a prescribed notice
application and,
for that purpose,
sections 54, 55
and 56 apply
in relation to
making the decision. (4)
In making a
decision under
subsection (2)(c) to
cancel the
suspended notice
and, subject
to subsection (6), issue
a replacement notice
to the person,
the chief executive
must make the
decision as if it were a decision about an exemption
notice application and, for that purpose,
sections 61, 62 and 63 apply in relation to making the
decision. (5) If the chief executive proposes to
issue a negative notice or negative exemption
notice under
subsection (3) or
(4), the
chief executive must first comply with
section 57 as if— (a) the reference in section 57(2) to
deciding the application by issuing a negative notice were a
reference to issuing a negative notice or negative exemption
notice under this section; and (b)
the
reference in section 57(4) to deciding the application
were
a reference to cancelling the suspended notice and
issuing a
prescribed notice
or exemption notice
under this
section. (6) The chief
executive may
cancel the
suspended positive
exemption notice without issuing a further
exemption notice or a prescribed notice to the person if the
chief executive is satisfied that the person is no longer
proposing to be engaged in regulated engagement, even if a
positive exemption notice or positive notice is issued to the
person. (7) If the
chief executive
issues a
negative notice
or negative exemption notice
to the person under this section, the chief executive must
give the person a notice stating— Page 82
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Screening of particular persons engaged by department or particular
funded service providers [s 90]
(a) the reasons for the chief executive’s
decision to issue a negative notice
or negative exemption
notice to
the person; and (b)
the
relevant review and appeal information. (8)
Also, if the person is engaged by a funded
non-government service provider or an NDIS non-government
service provider and the chief executive issues a further
exemption notice or a prescribed notice
to the person
under this section,
the chief executive must
give notice to the service provider stating— (a)
the
person’s suspended notice has been cancelled under
this section
or, if subsection
(2)(b) applies, ceased
to have effect under section 64;
and (b) whether the
person has
been issued
a positive notice,
negative notice,
positive exemption
notice or
negative exemption
notice. (9) Subsection (8) does not apply if the
person is a sole trader. (10) Despite an
application made by the person as mentioned in subsection
(2)(c), the chief executive is not required to decide
the application while
the person’s WWC
positive notice
is suspended under the Working with
Children Act. 90 Notifying holder of expiry of positive
exemption notice (1) This section applies if—
(a) a person was issued a positive
exemption notice; and (b) the person no
longer holds a WWC positive notice that is current under
the Working with Children Act. (2)
The
chief executive must give the person a notice stating that
the person’s positive
exemption notice
has ceased to
have effect under
section 64. (3) The notice must also advise the person
that a prescribed notice application may be made about the
person if the person does not hold
a WWC positive
notice and
is not a
disqualified person.
Current as at [Not applicable]
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83
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 91]
(4) Also, if the person is engaged by a
funded non-government service provider or an NDIS
non-government service provider at a service
outlet of the service provider, the chief executive
must
give the service provider a notice stating that—
(a) the positive
exemption notice
held by
the person has
ceased to have effect under section 64;
and (b) a prescribed notice application may be
made about the person if
the person does
not hold a
WWC positive notice and is
not a disqualified person. (5) Subsection (4)
does not apply if the person is a sole trader. (6)
A person who
is given notice
under subsection
(2) that the
person’s positive exemption notice has
ceased to have effect must immediately return the positive
exemption notice to the chief executive, unless the person has
a reasonable excuse. Maximum penalty for subsection (6)—100
penalty units. 91 Request to cancel positive notice or
positive exemption notice (1)
A person, including
a person whose
positive notice
is suspended under
section 86 or
whose positive
exemption notice is
suspended under section 88, may, by notice, ask the
chief executive
to cancel the
person’s positive
notice or
positive exemption notice.
(2) After receiving the notice, the chief
executive must— (a) cancel the positive notice or positive
exemption notice; and (b) give the person
a notice stating that— (i) the positive
notice or positive exemption notice has been cancelled;
and (ii) the person must
not apply for, or start or continue in, regulated
engagement. (3) The person
must not
apply for,
or start or
continue in,
regulated engagement unless
the chief executive
issues a
Page
84 Current as at [Not applicable]
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Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 92]
further positive
notice or
positive exemption
notice to
the person. Maximum
penalty—500 penalty
units or
5 years imprisonment. (4)
If
the person is engaged by a funded non-government service
provider or
an NDIS non-government service
provider, the
chief executive must give notice about the
cancellation of the person’s positive
notice or
positive exemption
notice to
the service provider. (5)
Subsection (4) does not apply if the person
is a sole trader. (6) A notice
under subsection
(4) must state
that a
funded non-government service
provider or
an NDIS non-government
service provider to whom the notice is given must not engage,
or continue to engage, the person at a service outlet of the
service provider. 92 Replacement of positive notice,
positive notice card or positive exemption notice
(1) If a person’s current positive notice,
positive notice card, or positive exemption notice, is lost or
stolen, the person must, within 14 days after the loss or
theft— (a) give the chief executive notice of the
loss or theft; and (b) if the person has a current positive
notice and a positive notice card and only the notice is
lost or stolen, or only the card is lost or stolen, return the
card or the notice that is not lost or stolen to the chief
executive; and (c) either— (i)
apply for a replacement notice or card;
or (ii) ask
the chief executive
to cancel the
person’s positive notice
or positive exemption notice under section
91. Maximum penalty—10 penalty units.
Current as at [Not applicable]
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(2) An application under
subsection (1)(c)(i) must
be in the
approved form and accompanied by the fee
prescribed under a regulation for the application.
(3) The chief executive must—
(a) cancel— (i)
for a lost
or stolen positive
notice—the lost
or stolen notice
and any positive
notice card
issued for it;
or (ii) for a lost or
stolen positive notice card—the lost or stolen card and
the positive notice for which it was issued;
or (iii) for a lost or
stolen positive exemption notice—the lost or stolen
notice; and (b) if the
person makes
an application under
subsection (1)(c)(i)—issue to the
person— (i) for a lost positive notice or positive
notice card—a replacement positive notice and, if the
person had a positive notice
card for
the person’s previous
positive notice, a replacement positive
notice card; or (ii) for
a lost or
stolen positive
exemption notice—a
replacement positive exemption
notice. (4) The chief executive must issue the
replacement notice or card with a different registration number
to the number of the lost or stolen notice or card.
(5) If the person’s lost or stolen notice
or card is returned to, or otherwise recovered by, the person
after the application for a replacement
notice or card, the person must give the replaced
notice or card to the chief executive within
14 days after it is returned to, or otherwise recovered by, the
person. Maximum penalty—10 penalty units.
(6) The chief
executive must
give notice
to the police
commissioner about
the fact that
a current positive
notice, Page 86
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Screening of particular persons engaged by department or particular
funded service providers [s 93]
current positive
notice card,
or current positive
exemption notice, has been
lost or stolen. Not authorised —indicative only
93 Change of details for positive notice,
positive notice card or positive exemption notice
(1) This section
applies if
the holder of
a positive notice
or positive exemption notice does any of
the following (each of which is a relevant
change )— (a) changes a name
the holder has previously given to the chief
executive; (b) starts to use a different name to the
name or names the holder has previously given to the chief
executive; (c) changes contact
details previously given
to the chief
executive. (2)
The
holder must give notice, in the approved form, to the chief
executive about the relevant change within
14 days after the relevant change. Maximum
penalty—10 penalty units. (3) If the chief
executive considers it is appropriate to do so, the
chief executive may issue to the
holder— (a) for the
holder of
a positive notice—a
replacement positive
notice and,
if the holder
also has
a positive notice card, a
replacement positive notice card; or (b)
for the holder
of a positive
exemption notice—a
replacement positive exemption
notice. (4) If the chief executive issues the
holder a replacement positive notice, positive
notice card or positive exemption notice, the holder
must return
the replaced notice
or card to
the chief executive
within 14
days after
receiving the
replacement notice or
card. Maximum penalty—10 penalty units.
(5) The chief executive must cancel the
previously held positive notice, positive notice card or
positive exemption notice if the chief executive
has issued a replacement notice or card. Current as at
[Not applicable] Page 87
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funded service providers [s 94]
94 Replacement notice etc. if change in
engagement details (1) This section applies if the holder of
a positive notice that is not suspended changes the person’s
engagement by a funded non-government service
provider or
an NDIS non-government service
provider from
engagement as
a volunteer to
engagement as
other than
a volunteer (the
relevant change ).
(2) The holder must give notice, in the
approved form, to the chief executive about
the relevant change within 14 days after the change.
Maximum penalty—10 penalty units.
(3) If, under
subsection (6), the
notice is
accompanied by
the prescribed application fee, the chief
executive must issue to the holder a new positive notice and,
if the holder also has a positive notice card, a new positive
notice card. (4) If the chief executive issues to the
holder a new positive notice or positive
notice card under subsection (3), the holder must
return the person’s previously held notice
or card to the chief executive within
14 days after
receiving the
new notice or
card. Maximum
penalty—10 penalty units. (5) The chief
executive must cancel the previously held positive
notice or positive notice card if the chief
executive has issued a new notice or card.
(6) The notice under subsection (2) must
be accompanied by the prescribed application fee
if the application for
the positive notice was
made— (a) before 1 July 2010; or
(b) on the basis the holder was engaged,
or to be engaged, in regulated engagement as a
volunteer. (7) In this section— prescribed application fee
, for a
notice given
under subsection
(2), means the
prescribed fee
for a prescribed Page 88
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Screening of particular persons engaged by department or particular
funded service providers [s 95]
notice application about
a person engaged
in regulated engagement other
than as a volunteer. Not authorised —indicative only
Division 9 Persons who hold
or held a WWC positive notice 95
Application of div 8 to person who holds WWC
positive notice and prescribed notice
(1) This section applies if—
(a) a person
holds a
current positive
notice or
current negative notice;
and (b) the person also holds a WWC positive
notice. (2) The person’s positive notice or
negative notice continues in effect subject
to section 58. (3) Division 8
continues to
apply in
relation to
the person’s positive notice
or negative notice while it remains current. (4)
If, under a
provision of
division 8,
the chief executive
is required or permitted to issue a
positive notice to the person and the chief
executive is aware the person also holds a WWC positive
notice, the
chief executive
must instead
issue a
positive exemption notice to the
person. (5) If, under
a provision of
division 8,
the chief executive
is required or permitted to issue a
negative notice to the person and
the chief executive
is aware the
person holds
a WWC positive
notice, the
chief executive
must instead
issue a
negative exemption notice to the
person. (6) This section applies despite section
51. 96 Person who holds negative exemption
notice but no longer holds WWC positive notice
(1) This section applies if—
(a) a person was issued a negative
exemption notice on the basis the person held a WWC positive
notice; and Current as at [Not applicable]
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(b) the person no longer holds a WWC
positive notice. (2) The negative
exemption notice
continues in
effect despite
section 59(1). (3)
If, after cancelling the
negative exemption
notice under
section 82 or
84(4), the
chief executive
is required or
permitted to
issue a
positive exemption
notice to
the person and the chief
executive is aware the person does not hold a WWC positive
notice, the chief executive must instead issue a
positive notice to the person.
Division 10 Disqualified
persons 97 Who is a disqualified
person (1) A person is a disqualified
person if the person— (a)
has
been or is convicted of a disqualifying offence; or
(b) is subject to— (i)
offender reporting obligations; or
(ii) an offender
prohibition order; or (iii) a
disqualification order; or (iv) a sexual
offender order. (2) However, a person to whom subsection
(1)(a) applies is not a disqualified person if the chief
executive issued an eligibility declaration to
the person and the eligibility declaration has not
expired. Notes—
1 Under section 102, a person who is
issued a positive notice, or whose negative
notice or negative exemption notice is cancelled, is
taken to be issued with an eligibility
declaration. 2 See section
106 for when an
eligibility declaration expires,
including if the person is charged with a
disqualifying offence or becomes a relevant disqualified person
after the declaration was issued. Page 90
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Screening of particular persons engaged by department or particular
funded service providers [s 98]
98 Offences for disqualified
person (1) A disqualified person must not—
(a) sign an
application as
an engaged person
under section 52;
or (b) apply for, or start or continue in,
regulated engagement. Maximum penalty—500 penalty
units or
5 years imprisonment. (2)
If
the chief executive is satisfied a person who has signed an
application as mentioned in subsection
(1)(a) is a disqualified person, the chief executive must give
a notice to the person stating the following—
(a) the chief
executive is
satisfied the
person is
a disqualified person;
(b) the application is invalid;
(c) the person
must not
apply for,
or start or
continue in,
regulated engagement. (3)
Also, the
chief executive
must give
a notice stating
the following to the funded non-government
service provider or NDIS non-government service
provider who
made the
application— (a)
that
the chief executive is satisfied that the person for
whom the
application has
been made
is a disqualified person;
(b) the service provider must not allow
the person to start or continue in
engagement by
the service provider
at a service outlet
of the service provider. (4) Subsection (3)
does not apply if the person is a sole trader. (5)
Subsection (1)(b) applies even though it is
not an offence for a funded non-government service
provider or
an NDIS non-government service
provider to
engage the
disqualified person at a
service outlet of the service provider. Current as at
[Not applicable] Page 91
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funded service providers [s 99]
99 Application for an eligibility
declaration (1) The purpose of this section is to
allow a person who may be a disqualified person
to apply to
the chief executive
for a declaration (
eligibility declaration )
that the
person is
not a disqualified
person and is eligible to sign an application as an
engaged person under section 52.
(2) A person may make an application
( eligibility application ) to
the
chief executive for an eligibility declaration. (3)
The
person can not make an eligibility application less than 2
years after making a previous eligibility
application that has been refused, unless—
(a) the decision to refuse the previous
eligibility application was based on wrong or incomplete
information; or (b) the previous eligibility declaration
was refused because the person was
a relevant disqualified person
and the person is no
longer a relevant disqualified person. (4)
The
eligibility application must be— (a)
in
the approved form; and (b) signed by the
person; and (c) accompanied by the prescribed
fee. (5) The approved form must include
provision for— (a) identifying information about the
person; and (b) certification by a prescribed person
that the prescribed person has sighted the documents, relating
to proof of the person’s identity, prescribed under a
regulation. 100 Notice of change of name and contact
details in eligibility application (1)
This section
applies if,
after a
person makes
an eligibility application, the
person’s name or contact details, as stated in the
application, change
before the
chief executive
issues an
eligibility declaration or
a notice relating
to the application under section
101. Page 92 Current as at
[Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 101]
(2) Within 14 days after the change
happens, the person must give notice of it, in
the approved form, to the chief executive. Maximum
penalty—10 penalty units. Not authorised
—indicative only
101 Chief executive’s decision on
eligibility application (1) The chief
executive may issue an eligibility declaration to a
person only if the person—
(a) has been convicted of a disqualifying
offence; and (b) is not a relevant disqualified
person. (2) The chief executive must decide the
eligibility application as if it
were a
decision about
an application for
a prescribed notice and, for
that purpose, sections 54, 55 and 57 apply to the
decision. (3) For subsection (2), sections 54, 55
and 57 apply as if— (a) a reference
in the sections
to a prescribed notice
application were a reference to an
eligibility application; and (b)
a
reference in the sections to issuing a positive notice
were a
reference to
issuing an
eligibility declaration; and
(c) a reference in the sections to issuing
a negative notice were a
reference to
refusing to
issue an
eligibility declaration. (4)
If the eligibility application is
granted, the
chief executive
must
issue the eligibility declaration to the person.
(5) If the
eligibility application is
refused, the
chief executive
must
give the person a notice stating— (a)
the
reasons for the refusal; and (b)
if
the reasons include investigative information— (i)
that, within 28 days after the person is
given the notice, the
person may
appeal to
a Magistrates Court
about the
police commissioner’s decision
Current as at [Not applicable]
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that the
information is
investigative information; and
(ii) how
the person may
appeal to
the Magistrates Court.
(6) If the
chief executive
considers the
person has
not been convicted of a
disqualifying offence, the chief executive must give notice to
the person stating the following— (a)
the chief executive
may only issue
an eligibility declaration if
the person has
been convicted
of a disqualifying
offence; (b) the chief
executive does
not consider the
person has
been
convicted of a disqualifying offence and, for that
reason, the chief executive can
not
issue an eligibility declaration to the person;
(c) if the
person is
not a disqualified person
for another reason, a
prescribed notice application may be made for the
person; (d) the eligibility application will not
be further dealt with by the chief executive.
(7) There is no review or appeal under
this Act in relation to a decision of the chief executive under
this section to refuse an eligibility application.
102 Eligibility declaration taken to have
been issued The chief executive
is taken to
have issued
an eligibility declaration to a
disqualified person if the chief executive— (a)
issues a positive notice to the person;
or (b) cancels a negative notice or negative
exemption notice issued to the person. 103
Withdrawing eligibility application
generally A person may withdraw the person’s
eligibility application at any time
before the
chief executive
issues an
eligibility Page 94
Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded service providers [s 104]
declaration or
a notice relating
to the application under
section 101. Not
authorised —indicative only
104 Deemed withdrawal of eligibility
application if identity can not be established
A
person is taken to have withdrawn the person’s eligibility
application if— (a)
the
chief executive gives the person a notice— (i)
asking the person to provide, within a
reasonable stated time,
stated information that
the chief executive
reasonably needs
to establish the
person’s identity; and (ii)
warning the
person that,
if the person
does not
comply with
the request, the
person’s eligibility application may
be taken to have been withdrawn; and
(b) the person does not comply with the
request within the stated time; and (c)
the
chief executive can not establish with certainty the
person’s identity; and (d)
the
chief executive gives the person a notice stating that
the person is
taken to
have withdrawn
the eligibility application. 105
Deemed withdrawal of eligibility application
if particular requests not complied with
A
person is taken to have withdrawn the person’s eligibility
application if— (a)
the
chief executive gives the person— (i)
a notice asking
the person to
provide, within
a reasonable stated
time, stated
information, including by way
of a submission, about a stated matter that the
chief executive reasonably believes is relevant to
the application; or Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
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(ii) a notice under
section 121; or (iii) a
notice asking
the person to
give the
necessary consent for
section 123 or 124; or (iv) a
notice asking
the person to
give the
necessary consent for
section 128 or 129; and (b) the notice
includes a warning that, if the person does not comply
with the
notice, the
person’s eligibility application may
be taken to have been withdrawn; and (c)
the
person does not comply with the notice; and (d)
the
chief executive gives the person a notice stating that
the person is
taken to
have withdrawn
the eligibility application. 106
Expiry of eligibility declaration
An
eligibility declaration issued to a person expires if, after
it is issued— (a)
the
person— (i) is charged with a disqualifying
offence; or (ii) is convicted of
a serious offence; or (iii) becomes a
relevant disqualified person; or (iv)
is issued with
a negative notice
or negative exemption
notice; or (b) any positive notice or positive
exemption notice held by the person is cancelled.
107 Reversal of decision refusing an
eligibility declaration (1) The
chief executive
may revoke a
decision to
refuse an
eligibility application and issue an
eligibility declaration if the chief executive
is satisfied— (a) the decision on the application was
based on wrong or incomplete information; and
Page
96 Current as at [Not applicable]
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Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 108]
(b) based on the correct or complete
information, the chief executive decides
under section
101 that the
chief executive may
issue the eligibility declaration. (2)
The chief executive
may exercise the
power under
subsection (1) on
the chief executive’s own
initiative or
on application by
the person whose
eligibility application was
refused. Division
11 Miscellaneous Subdivision
1 Reviews and appeals against
particular decisions 108
Definitions for sdiv 1 In this
subdivision— issue —
(a) in relation
to a negative
notice—includes substitute a
negative notice after cancelling a positive
notice; and (b) in relation
to a negative
exemption notice—includes substitute a
negative exemption notice after cancelling a positive
exemption notice. part 5 reviewable decision
,
about a person, means— (a) a
decision of
the chief executive
as to whether
or not there is an
exceptional case for the person if, because of the decision,
the chief executive— (i) issued
a negative notice
or negative exemption
notice to the person; or (ii)
refused to
cancel a
negative notice
or negative exemption notice
issued to the person; or (b) a decision of
the chief executive that the person has been charged with a
disqualifying offence if— Current as at [Not applicable]
Page
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(i) because of the decision, the positive
notice held by the person was suspended under section 86;
and (ii) the person
claims he or she has not been charged with the
disqualifying offence; and (iii) the
person has
applied for
a cancellation of
the suspension under
section 87 and
that application has been
refused; or (c) a decision of the chief executive that
the person’s WWC positive notice has been suspended under the
Working with Children Act if— (i)
because of
the decision, the
positive exemption
notice held
by the person
was suspended under
section 88; and (ii)
the
person claims his or her WWC positive notice has
not been suspended
under the
Working with
Children Act; and (iii)
the person has
applied for
a cancellation of
the suspension under
section 89 and
that application has been
refused; or (d) a relevant disqualified person
decision if— (i) because of the decision, the chief
executive issued a negative notice or negative exemption
notice to the person; and (ii)
the person claims
he or she
is not the
person to
whom the
conviction, reporting
obligations or
order in relation to which the decision was
made relates; and (iii)
the person has
applied for
a cancellation of
the negative notice or negative exemption
notice under section 82, and that application has been
refused. prescribed period , for a review
of a part 5 reviewable decision about a person,
means 28 days after the person is given notice of the
following— Page 98 Current as at
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Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 109]
(a) for a
part 5
decision mentioned
in definition part
5 reviewable decision
,
paragraph (a)—the decision; (b)
for a part
5 decision mentioned
in definition part
5 reviewable decision
,
paragraph (b)—the decision on the application
under section 87 about the suspension; (c)
for a part
5 decision mentioned
in definition part
5 reviewable decision
,
paragraph (c)—the decision on the application
under section 89 about the suspension; (d)
for a part
5 decision mentioned
in definition part
5 reviewable decision
,
paragraph (d)—the decision on the application
under section 82 about the negative notice or negative
exemption notice. relevant disqualified person decision
means— (a)
a
decision of the chief executive that a person has been
or
is convicted of a disqualifying offence for which an
imprisonment order was or is imposed;
(b) a decision of the chief executive that
a person is subject to— (i) offender
reporting obligations; or (ii) a final offender
prohibition order; or (iii) a
disqualification order; or (iv) a final sexual
offender order. 109 Person may apply for review of part 5
reviewable decision (1) A person who is not a disqualified
person may apply, within the prescribed period
and as otherwise
provided under
the QCAT Act, to the tribunal for a review
of a part 5 reviewable decision about the person.
(2) If a
person applies
under subsection
(1) to have a
part 5
reviewable decision reviewed, the tribunal
may not— (a) stay the operation of the decision;
or (b) grant an injunction in the proceeding
for the review. Current as at [Not applicable]
Page
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(3) To remove any doubt, it is declared
that there is no review or appeal under
this Act
in relation to
a decision of
the chief executive
to issue, or
refuse to
cancel, a
negative notice
or negative exemption notice about a
person other than because of a part 5 reviewable
decision. Note— There is also no
review or appeal under this Act in relation to a decision
of the chief
executive to
refuse an
eligibility application. See
section 101(7). (4)
This
section does not limit section 113. 110
Effect of applicant for a review becoming a
disqualified person (1)
This section
applies if
a disqualified person
made an
application under
section 109 before
the person became
a disqualified person.
(2) The application and
any proceeding in
relation to
the application must be dismissed—
(a) if a proceeding in relation to the
application is before a court—by the court; or
(b) otherwise—by the tribunal, even if the
dismissal would be contrary to a direction of the Court of
Appeal. (3) Any appeal by the person from a
decision of the tribunal on the application
must be dismissed. Subdivision 2 Provisions about
investigative information 111
Police commissioner may decide that
information about a person is investigative information
(1) The police commissioner may decide
under this section that information about
a person (the
investigated person
) is investigative
information if— Page 100 Current as at
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Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 111]
Not authorised —indicative only
(a) there is or was evidence of acts or
omissions that, at the time of the acts or omissions,
constituted a schedule 6 or 7
offence (the
alleged offence
) by the
investigated person against a
person (the complainant ); and
(b) the police
investigated the
alleged offence
and the investigated person
was formally notified
about the
investigation, including—
(i) by participating in an interview, or
by 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 available that
was capable of establishing each element of the alleged
offence but a decision was made not to charge the
investigated person because— (i)
the complainant died
before the
charge was
brought; or (ii)
either or both of the following
applied— (A) the complainant was unwilling to
proceed; (B) an adult
who, at
the relevant time,
was the complainant’s parent
or guardian decided
that, in the interests of the complainant,
the matter should not proceed.
(2) Evidence of
acts or
omissions includes
information from
a third party if the complainant did not
make a formal complaint at or about the time of the
investigation. (3) For this section, a
schedule 6 or 7 offence is—
(a) an offence against a provision of an
Act mentioned in schedule 6 or 7, column 1, subject to any
qualification relating to the provision mentioned opposite
in column 3; or (b)
an
offence of counselling or procuring the commission
of
an offence of a kind mentioned in paragraph (a); or
Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
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(c) an offence of attempting, or of
conspiring, to commit an offence of a kind mentioned in
paragraph (a); or (d) an offence that has, as an element,
intention to commit an offence of a kind mentioned in paragraph
(a); or (e) an offence
that, at
the time it
was committed, was
an offence of a kind mentioned in
paragraph (a); or (f) an offence under a law of another
jurisdiction that, if it had been
committed in
Queensland, would
have constituted an
offence mentioned
in paragraphs (a)
to (e). Note—
Column 2 in schedules 6 and 7 is included
for information purposes only and states a section heading for
the provision mentioned opposite in column
1. (4) For subsection (3), it is immaterial
if a provision mentioned in schedule 6 or 7,
column 1, for an Act has been amended from time to time or
that the provision was previously numbered with a different
number. 112 Delegation by police commissioner of
power under s 111 restricted Despite
the Police Service
Administration Act
1990 ,
section 4.10, the
police commissioner may
not delegate the
police commissioner’s powers under section
111 other than to a police officer of at least the rank of
superintendent. 113 Decision by police commissioner that
information is investigative information
(1) This section applies if—
(a) the police commissioner decides that
information about a person is investigative information;
and (b) the investigative information is
given, under section 117 or 130, to the chief executive;
and Page 102 Current as at
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(c) after the investigative information is
given to the chief executive, any
of the following
happens (
relevant event
)— (i) a negative
notice or negative exemption notice is issued to the
person; (ii) the
person’s positive
notice is
cancelled and
a negative notice
or negative exemption
notice is
substituted for it; (iii)
the
person’s positive exemption notice is cancelled and a negative
exemption notice is substituted for it;
(iv) the person’s
eligibility application is refused. (2)
The person may
appeal to
a Magistrates Court
about the
decision that
information, given
to the chief
executive as
investigative information, is investigative
information. (3) However, an appeal under subsection
(2) may only be made within 28 days after the person is
given notice of the relevant event.
(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
information about
a person is
investigative information or
that information that
is investigative information may be given
to the chief executive. 114 Court to decide
matters afresh (1) A Magistrates Court hearing an appeal
under section 113 is to decide afresh whether information
given to the chief executive as
investigative information about
a person is
investigative information. (2)
A
person who is the relevant complainant under section 111
must not
be asked or
called on
by the investigated person
under that section to give evidence in
person before the court. Current as at [Not applicable]
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(3) Subsection (2) does not prevent
documentary evidence being tendered and received in evidence by
the court. (4) After hearing
an appeal under
section 113, the
court may
confirm or set aside the decision and the
clerk of the court is to give the appellant notice of the
decision. (5) For subsection (4), the court must
have regard to the matters the police commissioner was required
to have regard to under this Act when the police commissioner
made the decision. 115 Consequence of decision on
appeal (1) This section applies if a Magistrates
Court hears and decides an appeal
against the
police commissioner’s decision
under section 111 that
information given to the chief executive about a person is
investigative information. (2) If
the court sets
aside the
decision appealed
against, the
person may— (a)
if
the person was issued a negative notice or negative
exemption notice on the basis of the
information—apply under section
82 to cancel the
negative notice
or negative exemption notice issued to
the person on the grounds that the decision to issue the
notice was based on wrong information; or (b)
if
the person’s eligibility application was refused on the
basis of
the information—apply under
section 107 for
the
chief executive to revoke the refusal on the grounds
the
refusal was based on wrong information. (3)
If
the court confirms the decision appealed against—
(a) the person who appealed the decision
may apply, within 28 days after receiving the notice under
section 114(4) and as otherwise provided under the QCAT
Act, to the tribunal for a review of a decision of the
chief executive if— (i) the person is
not a disqualified person; and Page 104
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funded service providers [s 116]
(ii) the
decision is
a part 5
reviewable decision
as defined under section 108; and
(b) the notice under section 114(4) must
state how, and the period within
which, the
person may
apply for
the review. (4)
If a
person applies under subsection (3)(a) to have a decision
reviewed, the tribunal may not—
(a) stay the operation of the decision;
or (b) grant an injunction in the proceeding
for the review. (5) In this section— issue
— (a) in
relation to
a negative notice—includes substitute a
negative notice after cancelling a positive
notice; and (b) in relation
to a negative
exemption notice—includes substitute a
negative exemption notice after cancelling a positive
exemption notice. Subdivision 3 Obtaining police
information or information related to police
information about a person
116 Persons to whom ss 117 and 118
applies Sections 117
and 118 apply
in relation to
the following persons—
(a) a person
who has a
current positive
notice or
current positive
exemption notice; (b) a person about whom the chief
executive has received a prescribed notice
application or
exemption notice
application, if the application has not been
withdrawn; (c) a person who has applied to the chief
executive to cancel a negative notice or negative exemption
notice about the person; Current as at
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(d) a person who has applied, under
section 87, to the chief executive to cancel the person’s
positive notice that is suspended and
issue a
further positive
notice to
the person; (e)
a
person who has applied, under section 89, to the chief
executive to
cancel the
person’s positive
exemption notice
that is
suspended and
issue a
further positive
exemption notice or a positive notice to the
person; (f) a person who has made an eligibility
application if— (i) the chief executive has not given the
person written notice under section 101; and
(ii) the application
has not been withdrawn; (g) a
person who
has an eligibility declaration, if
the eligibility declaration has not
expired; (h) a person
who has a
negative notice
or negative exemption notice
if— (i) the person
has made an
application under
section 109 or 115(3) that has not been
decided; or (ii) an appeal to an
entity has been made in relation to an application
under section 109 or 115(3), and the appeal has not
been decided. 117 Chief executive may obtain information
from police commissioner (1)
This
section applies to a person mentioned in section 116.
(2) The chief
executive may
ask the police
commissioner for
information, or
for access to
the police commissioner’s records,
to enable the
chief executive
to learn what
police information
exists, if any, in relation to the person. (3)
For
subsection (2), the chief executive’s request may include
the
following information— (a) the
person’s name
and any other
name that
the chief executive
believes the person may use or may have used; Page 106
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(b) the person’s gender and date and place
of birth; (c) the person’s address;
(d) if the
person is
currently the
holder of
a prescribed notice—any
number or date relevant to the prescribed notice or a
positive notice card; (e) if
the person is
currently the
holder of
an exemption notice—any
number or date relevant to the exemption notice;
(f) whether or not the person is engaged,
or to be engaged, as a volunteer; (g)
the basis on
which the
chief executive
may request information
about the person, including, for example, by referencing the
relevant provision of subsection (1). (4)
If there is
police information about
the person, the
chief executive
may ask the
police commissioner for
a brief description of
the circumstances of
a conviction, charge
or investigative information mentioned in
the police information. (5) The police
commissioner must comply with a request under this
section unless
the police commissioner is,
under subsection (11),
told not to provide the information. (6)
However, the
duty imposed
on the police
commissioner to
comply with
a request applies
only to
information in
the police commissioner’s possession or
to which the
police commissioner has
access. (7) If the
police commissioner gives
the chief executive
information under this section about a
person who is or has been a
relevant disqualified person,
the information must
include the following information about the
person— (a) that the
person is
or has been
a relevant disqualified person;
(b) if the person is or has been subject
to a disqualification order—the duration
and details of
the disqualification order;
Current as at [Not applicable]
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107
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Not authorised —indicative
only (c) if
the person is
or has been
subject to
an offender prohibition
order— (i) a brief description of the conduct
that gave rise to the order; and (ii)
the duration and
details of
the order, including
whether it
is or was
a temporary offender
prohibition order
or a final
offender prohibition order.
(8) If the
police commissioner gives
the chief executive
information under this section about a
person who is or has been the subject of an application for
a disqualification order or named as the respondent for an
application for an offender prohibition
order, and the order was not made, the information
must
include the following information about the person—
(a) that the
person is
or has been
the subject of
an application for a disqualification
order or named as the respondent for an application for an
offender prohibition order and the order was not
made; (b) the reasons why the application was
made; (c) the reasons why the order was not
made; (d) if the application was for an offender
prohibition order and the magistrate or
court hearing
the application decided
not to make
an offender prohibition disqualification
order for the person—the reasons why the offender
prohibition disqualification order was not made.
(9) The police
commissioner need
not disclose investigative information
about the person to the chief executive under this
section if the police commissioner is
reasonably satisfied 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; Page 108 Current as at
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(c) endanger a person’s life or physical
safety; (d) prejudice the
effectiveness of
a lawful method
or procedure for
preventing, detecting, investigating or
dealing with a contravention or possible
contravention of the law. (10)
If the police
commissioner gives
investigative information about the person
to the chief executive under this section, the police
commissioner must give notice, in the approved form,
to
the person that— (a) the police
commissioner has
decided that
information about the person
is investigative information; and (b)
investigative information has
been given
to the chief
executive. (11)
If
the chief executive decides that information requested under
subsection (2) about the person is no longer
required, the chief executive must tell the police commissioner
not to provide the information. (12)
Information given
to the police
commissioner under
this section
must not
be accessed or
disclosed for
any purpose except
for a purpose
under this
part or
any other purpose
relevant to law enforcement.
(13) Information given
to the police
commissioner under
this section must not
be used for any purpose except for a purpose under this
part. (14) However,
subsections (12) and
(13) do
not apply to
information the police commissioner obtained
before the chief executive gave
the information to
the police commissioner under this
section. (15) To
remove any
doubt, it
is declared that,
despite the
Youth Justice
Act 1992 ,
part 9,
the police commissioner may
disclose information to
which that
part applies
to the chief
executive for complying with a request under
subsection (2) or (4). Current as at
[Not applicable] Page 109
Disability Services Act 2006
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Screening of particular persons engaged by department or particular
funded service providers [s 118]
Not authorised —indicative
only 118 Obtaining
information from director of public prosecutions (1)
This
section applies to a person mentioned in section 116.
(2) If the chief executive becomes aware
that the 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— (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 why the
charge was not proceeded with. (3)
The chief executive’s request
may include the
following information— (a)
the person’s name
and any other
name the
chief executive
believes the person may use or have used; (b)
the
person’s gender and date and place of birth. (4)
The director of
public prosecutions may
comply with
a request under
subsection (2) if
the director reasonably believes the
statement, copy or summary may help the chief executive in
making a screening decision about the person. (5)
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 person
about whom the request is made. Example of
evidential material for subsection (5)— a report by an
expert about a person other than the person about whom
the
request is made (6) The director of public prosecutions
must not give information, or a document containing information,
to the chief executive under this section if the director is
reasonably satisfied that giving the information may do any of
the following— Page 110 Current as at
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Not authorised —indicative only
(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) endanger a person’s life or physical
safety; (d) prejudice the
effectiveness of
a lawful method
or procedure for
preventing, detecting, investigating or
dealing with a contravention or possible
contravention of the law; (e)
prejudice a prosecution or another matter
before a court. (7) The giving
of information, or
a document containing information, under
this section
by the director
of public prosecutions is
authorised 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. (8) Without limiting
subsection (7), this
section applies
despite the
Director of Public Prosecutions Act
1984 , section 24A. (9)
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; Current as at
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Screening of particular persons engaged by department or particular
funded service providers [s 119]
(e) a report by an expert about the person
alleged to have committed the offence. 119
Obtaining information from chief executive
(corrective services) (1)
The
chief executive (corrective services) must give the chief
executive notice of each person who is or
becomes subject to a sexual offender order.
(2) The notice must state the
following— (a) the person’s name; (b)
that
the person is subject to a sexual offender order;
(c) any other
information the
chief executive
(corrective services)
reasonably considers is necessary for the chief executive
to perform a
function or
exercise a
power under this
part. (3) The chief
executive (corrective services)
and the chief
executive may
enter into
a written arrangement by
which notices are
given under subsection (1). (4)
Without limiting subsection (3), the
arrangement may provide for giving the notices
electronically. (5) However, if
notices under
subsection (1) are
to be given
electronically and, under an Act, there is a
limitation on who may access the information mentioned in the
notices or the purposes for
which that
information may
be used, the
arrangement must provide for the
limitation. (6) The disclosure of
information by
the chief executive
(corrective services) under this section is
authorised 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. (7) In this section— Page 112
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Screening of particular persons engaged by department or particular
funded service providers [s 120]
chief executive
(corrective services)
means the
chief executive of the
department in which the Corrective Services
Act
2006 is administered. Subdivision
4 Obtaining report about person’s
mental health 120
Application of sdiv 4 (1)
This
subdivision applies if— (a) the chief
executive is deciding whether or not there is an
exceptional case for a person who has
been— (i) charged with or convicted of a serious
offence; or (ii) charged with or
convicted of an offence (other than a serious
offence) relating to or involving a person with a
disability; and (b) the chief executive reasonably
believes it is necessary to consider
a report about
the person’s mental
health prepared under
this section for deciding whether or not there is an
exceptional case for the person. (2)
For subsection (1)(b), the
chief executive
may form the
reasonable belief only if—
(a) in relation
to the charge
or conviction mentioned
in subsection (1)(a)— (i)
the
matter of the person’s mental state relating to the offence has
been or was 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
person to
undertake treatment of a
psychiatric nature; or (iii) a court has been
given a report about the person’s mental
health prepared
by a registered health
practitioner; or Current as at
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Disability Services Act 2006
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Screening of particular persons engaged by department or particular
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(b) the chief
executive has,
under this
part, been
given a
report about
the person’s mental
health prepared
by a registered
health practitioner. Not authorised —indicative
only 121 Chief executive
may request person to undergo examination by
registered health practitioner etc. (1)
The
chief executive may, by notice, ask the person— (a)
to undergo an
examination by
a registered health
practitioner nominated by the chief
executive, and any further examination required by the health
practitioner, so that a report about the person’s mental
health can be given to the chief executive under this
subdivision; and (b) to give
the chief executive
consent to
obtain a
report about
the person’s mental
health from
the registered health
practitioner who conducts the examination. (2)
The notice given
under subsection
(1) 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 conduct the examination; (c)
when
and where the examination is to be conducted; (d)
that the
registered health
practitioner may
require the
person to undergo further examinations so
that a report about the person’s mental health can be
prepared; (e) that, under
section 55(2)(c), the
chief executive
must have
regard to
the report about
the person’s mental
health prepared
under this
subdivision in
deciding whether
or not there
is an exceptional case
for the person;
(f) that the
person may
withdraw the
person’s consent
to employment screening under this part
or, if the person is an applicant for an eligibility
declaration, the person’s eligibility application;
Page
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(g) that, if the person fails to undergo
the examination, and any further
examination required
by the registered health
practitioner, or to give the consent mentioned in
subsection (1)(b), either—
(i) the person’s
consent to
screening under
this part
may be withdrawn
under section
132(4), or the person’s
eligibility application may be withdrawn under
section 105, by
the chief executive
giving notice of the
withdrawal under that section; or (ii)
the chief executive
may decide whether
or not there is an
exceptional case for the person in the absence
of a report
about the
person’s mental
health. (3)
If the person
does not
comply with
the chief executive’s request under
subsection (1), the chief executive may decide whether or not
there is an exceptional case for the person in the absence of a
report about the person’s mental health. Note—
See
also section 105 (in relation to the withdrawal
of an eligibility application) and
section 132(4) (in
relation to
the withdrawal of
a prescribed notice application or
exemption notice application). 122
Nominating registered health practitioner to
conduct examination The
chief executive
may nominate a
registered health
practitioner to conduct an examination under
this subdivision only if the chief executive is reasonably
satisfied the health practitioner has
the necessary qualifications, expertise
or experience to conduct the
examination. 123 Registered health practitioner
obtaining information from Mental Health Court
(1) This section applies if—
(a) the person ( charged
person ) has been charged with, but
not
convicted of— Current as at [Not applicable]
Page
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Not authorised —indicative
only (i) a serious
offence; or (ii) an offence
(other than a serious offence) relating to or involving a
person with a disability; and (b)
the
matter of the charged person’s mental state relating
to the offence
has been referred
to the Mental
Health Court;
and (c) the chief executive is reasonably
satisfied that it may be necessary or desirable for a
registered health practitioner conducting an
examination of the charged person under this subdivision
to have regard to information mentioned in
subsection (2) for
preparing a
report about
the person’s mental health.
(2) The chief executive may, by notice,
ask the charged person to give the Mental Health Court consent
to give the registered health practitioner the following
information— (a) the court’s decision in relation to
the reference; (b) the court’s reasons for its
decision; (c) a copy or written summary of any
expert’s report about the person received in evidence by the
court, including, for example, a
medical report,
psychiatrist’s report
or expert report that accompanied the
reference; (d) transcripts of
any hearing conducted
for the reference
that
the court has directed may be given to a party to the
hearing or another person.
(3) The notice must state the
following— (a) the reasons for the chief executive’s
request; (b) that, if the charged person fails to
give the consent, the person’s consent
to screening under
this part
may be withdrawn
by the chief
executive giving
the person notice of the
withdrawal. (4) If the
charged person
gives the
consent, the
Mental Health
Court may give the information mentioned in
subsection (2) to the chief
executive for
giving it
to the registered health
practitioner. Page 116
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Not authorised —indicative only
(5) However, information or documents
given under this section must not include— (a)
any record of
material given
to the court
under the
Mental Health
Act 2016 ,
section 163,
or of how
the material was taken into account;
or (b) the Mental
Health Court’s
reasons 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 charged person; or (d)
information about
a person other
than the
charged person the
Mental Health Court reasonably considers is not
relevant to
the registered health
practitioner preparing
a report about
the charged person’s
mental health.
(6) Also, the Mental Health Court must not
give information, or a document containing information, under
this section
if the court is
reasonably satisfied that giving the information may
do
any of the following— (a) prejudice an
investigation or a matter before the Mental Health
Court; (b) prejudice the investigation of a
contravention or possible contravention of the law in a
particular case; (c) enable the existence or identity of a
confidential source of information, in
relation to
the enforcement or
administration of the law, to be
ascertained; (d) prejudice the
effectiveness of
a lawful method
or procedure for
preventing, detecting, investigating or
dealing with a contravention or possible
contravention of the law; (e)
prejudice a prosecution or another matter
before another court; (f)
endanger a person’s life or physical
safety; (g) adversely affect a person’s mental
health. Current as at [Not applicable]
Page
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(7) If the chief executive is given
information under this section to give to the
registered health practitioner, the chief executive—
(a) must give
the information to
the registered health
practitioner as soon as possible; and
(b) must not use the information for any
purpose other than giving it to the registered health
practitioner. (8) The giving
of information under this
section by
the Mental Health
Court is
authorised despite
any other Act
or law, including
a law imposing
an obligation to
maintain confidentiality
about the information. Note— See sections 125
and 227 for restrictions on disclosing or giving access
to
information or documents obtained under this section.
(9) Without limiting subsection
(8)— (a) information may be given under this
section even if the information can not be disclosed to the
charged person under a
confidentiality order
under the
Mental Health
Act
2016 , section 696; and (b)
this section
applies in
relation to
an expert’s report
despite the Mental Health
Act 2016 , section 160. (10)
A
decision of the Mental Health Court not to give an expert
report about the charged person under this
section does not prevent the chief executive applying under
the Mental Health Act
2016 ,
section 160(2)
for leave of
the court to
give the
report to the registered health
practitioner. 124 Registered health practitioner
obtaining information from Mental Health Review Tribunal
(1) This section applies if—
(a) the person ( charged
person ) has been charged with, but
not
convicted of— (i) a serious offence; or
(ii) an offence
(other than a serious offence) relating to or involving a
person with a disability; and Page 118
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funded service providers [s 124]
Not authorised —indicative only
(b) the Mental
Health Review
Tribunal has
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 (c) the chief executive is reasonably
satisfied that it may be necessary or desirable for a
registered health practitioner conducting an
examination of the charged person under this subdivision
to have regard to information mentioned in
subsection (2) for
preparing a
report about
the person’s mental health.
(2) The chief executive may, by notice,
ask the charged person to give the Mental Health Review Tribunal
consent to give the registered health practitioner the following
information— (a) the tribunal’s decision on the
review; (b) the tribunal’s reasons for the
decision; (c) a copy or written summary of any
expert’s report about the charged
person received
by the tribunal
in the proceeding for
the review, including, for
example, a
report about
an examination of
the person by
a psychiatrist or
other person
mentioned in
the Mental Health Act
2016 , section 454; (d)
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.
(3) The notice must state the
following— (a) the reasons for the chief executive’s
request; (b) that, if the charged person fails to
give the consent, the person’s consent
to screening under
this part
may be withdrawn
by the chief
executive giving
the person notice of the
withdrawal. (4) If the
person gives
the consent, the
Mental Health
Review Tribunal
may give the
information mentioned
in subsection (2) to
the chief executive
for giving it
to the registered
health practitioner. Current as at [Not applicable]
Page
119
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 124]
(5) However, information or documents
given under this section must not include— (a)
any record of
material given
to the Mental
Health Review
Tribunal under
the Mental Health
Act 2016 ,
section 155 or 742, or of how the material
was taken into account; or (b)
the
Mental Health Review Tribunal’s reasons 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 charged person; or (d)
information about
a person other
than the
charged person the
Mental Health Review Tribunal reasonably considers
is not relevant
to the registered health
practitioner preparing
a report about
the charged person’s mental
health. (6) Also, the
Mental Health
Review Tribunal
must not
give information, or
a document containing information, under this section if the
tribunal is reasonably satisfied that giving the
information may do any of the
following— (a) prejudice a matter before the
tribunal; (b) prejudice the investigation of a
contravention or possible contravention of the law in a
particular case; (c) enable the existence or identity of a
confidential source of information, in
relation to
the enforcement or
administration of the law, to be
ascertained; (d) prejudice the
effectiveness of
a lawful method
or procedure for
preventing, detecting, investigating or
dealing with a contravention or possible
contravention of the law; (e)
prejudice a prosecution or another matter
before a court; (f) endanger a person’s life or physical
safety; (g) adversely affect a person’s mental
health. Page 120 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 125]
(7) If the chief executive is given
information under this section to give to the
registered health practitioner, the chief executive—
(a) must give
the information to
the registered health
practitioner as soon as possible; and
(b) must not use the information for any
purpose other than giving it to the registered health
practitioner. (8) The giving
of information under this
section by
the Mental Health Review
Tribunal is authorised despite any other Act or law,
including a
law imposing an
obligation to
maintain confidentiality
about the information. Note— See sections 125
and 227 for restrictions on disclosing or giving access
to
information or documents obtained under this section.
(9) Without limiting
subsection (8), information may
be given under this
section even if the information can not be disclosed
to
the charged person under a confidentiality order under the
Mental Health Act 2016 , section
722. 125 Use of information obtained from
Mental Health Court or Mental Health Review Tribunal
(1) This section applies if the chief
executive gives a registered health
practitioner information or a document about a person
given to the commissioner—
(a) by the Mental Health Court under
section 123; or (b) by the
Mental Health
Review Tribunal
under section
124. (2) The registered health practitioner
must not— (a) make a record of the information or
information in the document; or (b)
disclose the information or information in
the document to anyone; or (c)
give
anyone access to the document; or Current as at
[Not applicable] Page 121
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 126]
(d) include any details of the
information, or information in the
document, in
the report about
the person’s mental
health prepared under this
subdivision. Maximum penalty—100 penalty units.
126 Chief executive may obtain report
about person’s mental health from registered health
practitioner (1) This section
applies if
a person gives
the chief executive
consent as
mentioned in
section 121(1)(b) in
relation to
an examination of the person conducted
under this subdivision. (2) The chief
executive may ask the registered health practitioner
who conducts the
examination to
give a
report about
the person’s mental
health to
the chief executive, and
the registered health practitioner may
give the report to the chief executive. (3)
The
giving of a report under this section by a registered health
practitioner is
authorised despite
any other Act
or law, including
a law imposing
an obligation to
maintain confidentiality
about the examination. Note— See
section 227 for
restrictions on
disclosing or
giving access
to information or documents obtained
under this part. 127 Chief executive to bear medical
costs (1) The chief executive must bear the
medical costs for obtaining a
report from
a registered health
practitioner under
this subdivision. (2)
In
this section— medical costs , for obtaining
a report from a registered health practitioner under
this subdivision, means
amounts charged
by
the health practitioner to— (a)
conduct an examination for preparing the
report; or (b) prepare the report.
Page
122 Current as at [Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 128]
Subdivision 5 Obtaining other
information about person’s mental health Not
authorised —indicative only
128 Chief executive may obtain particular
information from Mental Health Court (1)
This
section applies if— (a) the chief executive is deciding
whether or not there is an exceptional case for a person (
charged person ) who has
been
charged with, but not convicted of— (i)
a
serious offence; or (ii) an offence
(other than a serious offence) relating to or involving a
person with a disability; and (b)
the
matter of the charged person’s mental state relating
to the offence
has been referred
to the Mental
Health Court;
and (c) the chief executive has the charged
person’s consent to obtain information about
the person from
the Mental Health Court
under this section. (2) The chief executive may ask the Mental
Health Court for the following ( requested
information )— (a) the court’s
decision in relation to the reference; (b)
the
court’s reasons for its decision; (c)
a
copy or written summary of any expert’s report about
the charged person
received in
evidence by
the court, including, for
example, a medical report, psychiatrist’s report or expert
report that accompanied the reference; (d)
transcripts of
any hearing conducted
for the reference
that
the court has directed may be given to a party to the
hearing or another person.
(3) The Mental Health Court may comply
with the request if the court reasonably considers
the requested information may
help
the chief executive in deciding whether or not there is an
exceptional case for the charged
person. Current as at [Not applicable]
Page
123
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 128]
Not authorised —indicative
only (4) However,
the information or
documents given
to the chief
executive for complying with the request
must not include— (a) any record
of material given
to the court
under the
Mental Health
Act 2016 ,
section 163,
or of how
the material was taken into account;
or (b) the Mental
Health Court’s
reasons for
taking material
mentioned in
paragraph (a) into
account or
not taking the material
into account; or (c) information that
can not be
disclosed to
the charged person
under a
confidentiality order
under the
Mental Health Act
2016 , section 696; or (d)
the
content of an expert report about a person other than
the
charged person; or (e) information about
a person other
than the
charged person
that the
Mental Health
Court reasonably considers is not
relevant to the chief executive deciding whether
or not there
is an exceptional case
for the charged
person. (5) Also, the Mental Health Court must not
give information, or a document containing information, to
the chief executive under this section if the court is
reasonably satisfied that giving the information may
do any of the following— (a) prejudice an
investigation or a matter before the Mental Health
Court; (b) prejudice the investigation of a
contravention or possible contravention of the law in a
particular case; (c) enable the existence or identity of a
confidential source of information, in
relation to
the enforcement or
administration of the law, to be
ascertained; (d) prejudice the
effectiveness of
a lawful method
or procedure for
preventing, detecting, investigating or
dealing with a contravention or possible
contravention of the law; (e)
prejudice a prosecution or another matter
before another court; Page 124
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 129]
(f) endanger a person’s life or physical
safety; (g) adversely affect a person’s mental
health. (6) The giving
of information under this
section by
the Mental Health
Court is
authorised 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. (7) Without limiting subsection (6), this
section applies in relation to
an expert’s report
despite the
Mental Health
Act 2016 ,
section 160. (8)
A
decision of the Mental Health Court not to give the chief
executive an expert report about the charged
person under this section does not prevent the chief executive
applying under the Mental Health
Act 2016 , section 160(2)
for leave of the court to give the report to the chief
executive. 129 Chief executive may obtain particular
information from Mental Health Review Tribunal
(1) This section applies if—
(a) the chief executive is deciding
whether or not there is an exceptional case for a person (
charged person ) who has
been
charged with, but not convicted of— (i)
a
serious offence; or (ii) an offence
(other than a serious offence) relating to or involving a
person with a disability; and (b)
the Mental Health
Review Tribunal
has 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 (c) the chief executive has the charged
person’s consent to obtain information about
the person from
the Mental Health Review
Tribunal under this section. Current as at
[Not applicable] Page 125
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 129]
Not authorised —indicative
only (2) The
chief executive
may ask the
Mental Health
Review Tribunal for the
following ( requested information )—
(a) the tribunal’s decision on the
review; (b) the tribunal’s reasons for the
decision; (c) a copy or written summary of any
expert’s report about the charged
person received
by the tribunal
in the proceeding for
the review, including, for
example, a
report about
an examination of
the person by
a psychiatrist or
other person
mentioned in
the Mental Health Act
2016 , section 454; (d)
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.
(3) The Mental
Health Review
Tribunal may
comply with
the request if
the tribunal reasonably considers
the requested information may
help the chief executive in deciding whether or not there is
an exceptional case for the charged person. (4)
However, the
information or
documents given
to the chief
executive for complying with the request
must not include— (a) any record
of material given
to the Mental
Health Review
Tribunal under
the Mental Health
Act 2016 ,
section 155 or 742, or of how the material
was taken into account; or (b)
the
tribunal’s reasons for taking material mentioned in
paragraph (a) into account or not taking the
material into account; or (c)
information that
can not be
disclosed to
the charged person
under a
confidentiality order
under the
Mental Health Act
2016 , section 722; or (d)
the
content of an expert report about a person other than
the
charged person; or (e) information about
a person other
than the
charged person
that the
Mental Health
Review Tribunal
reasonably considers
is not relevant
to the chief
Page
126 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 129]
executive deciding
whether or
not there is
an exceptional case for the charged
person. (5) Also, the
Mental Health
Review Tribunal
must not
give information, or
a document containing information, to
the chief executive under this section if
the tribunal is reasonably satisfied that
giving the
information may
do any of
the following— (a)
prejudice a matter before the
tribunal; (b) prejudice the investigation of a
contravention or possible contravention of the law in a
particular case; (c) enable the existence or identity of a
confidential source of information, in
relation to
the enforcement or
administration of the law, to be
ascertained; (d) prejudice the
effectiveness of
a lawful method
or procedure for
preventing, detecting, investigating or
dealing with a contravention or possible
contravention of the law; (e)
prejudice a prosecution or another matter
before a court; (f) endanger a person’s life or physical
safety; (g) adversely affect a person’s mental
health. (6) The giving
of information under this
section by
the Mental Health Review
Tribunal is authorised 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. Current as at [Not applicable]
Page
127
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 130]
Subdivision 6 Obtaining
information about changes in police information
Not authorised —indicative
only 130 Notice of change
in police information about a person (1)
This
section applies if, for a person in relation to whom any of
the following happens
(the relevant
event ),
the police commissioner reasonably suspects
the person is
a person mentioned in
section 116(a) to (h)— (a) the person’s
criminal history changes; (b) the police
commissioner decides, under section 111, that information about
the person is
investigative information (regardless of
when the
act or omission
relevant to the investigative information
happened or is alleged to have happened);
(c) the person
becomes, or
is no longer,
a relevant disqualified
person; (d) the person is named as the respondent
for an application for an offender prohibition order.
(2) For a relevant event mentioned in
subsection (1)(a) or (b), the police
commissioner may
notify the
chief executive
of the following— (a)
that
the relevant event has happened; (b)
if
subsection (1)(a) applies because the person has been
charged with or convicted of an
offence— (i) the offence
the person has
been charged
with or
convicted of; and (ii)
the
particulars of the offence; and (iii)
the
date of the charge or conviction; (c)
if subsection (1)(b) applies—a
brief description of
the investigative information.
(3) For a relevant event mentioned in
subsection (1)(c) or (d), the police
commissioner must
notify the
chief executive
of the following— Page 128
Current as at [Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 130]
Not authorised —indicative only
(a) that the relevant event has
happened; (b) if subsection
(1)(c) applies because
the person has
become a relevant disqualified person—the
information mentioned in section 117(7);
(c) if subsection (1)(d) applies—the
information mentioned in section 117(8) in relation to the
offender prohibition order. (4)
A notice given
under subsection
(2) or (3) must
state the
following— (a)
the
person’s name and any other name that the police
commissioner believes the person may use or
may have used; (b)
the
person’s gender and date and place of birth. (5)
The
chief executive may confirm the police commissioner’s
suspicions under subsection (1).
(6) The duty
imposed on
the police commissioner to
provide information to
the chief executive under this section applies only to
information in the police commissioner’s possession
or
to which the police commissioner has access. (7)
If the person
is a person
to whom section
75(1) or 77(1) applies,
the chief executive, on
receiving notice
under subsection (2)
or (3), may write to the person to inform the person
of the person’s
obligations under
sections 75(2) and
77(2). (8)
If
the police commissioner gives investigative information to
the chief executive
under this
section, the
police commissioner
must give notice, in the approved form, to the person
that investigative information has
been given
to the chief
executive. (9) For a person who does not have a
criminal history, there is taken to
be a change
in the person’s
criminal history
if the person acquires
a criminal history. (10) To
remove any
doubt, it
is declared that,
despite the
Youth Justice
Act 1992 ,
part 9,
the police commissioner may
Current as at [Not applicable]
Page
129
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 131]
disclose information to
which that
part applies
to the chief
executive under subsection (2) or
(3). Not authorised —indicative
only Subdivision 7 Other
miscellaneous provisions 131 Chief executive
to give notice to funded non-government service provider
or NDIS non-government service provider about
making screening decision about engaged
person (1) This section applies if—
(a) the police commissioner, an engaged
person or another person gives
notice to
the chief executive
that police
information about the engaged person has
changed; or (b) the chief executive otherwise becomes
aware that police information about the engaged person has
changed. (2) However, this
section does
not apply to
a change in
police information
if— (a) the change is that the engaged
person— (i) has been
charged with
or convicted of
a disqualifying offence; or
(ii) has become a
relevant disqualified person; or (b)
both
of the following apply— (i) the
change is
that the
engaged person
has been named as the
respondent in an application for an offender
prohibition order and the proceeding for the offender
prohibition order has not ended; (ii)
an
application for a prescribed notice or exemption
notice about
the engaged person
has been made
under this part and has not been
decided. (3) If the
chief executive
considers the
change in
police information may
be relevant to the engagement of the engaged person
by a funded
non-government service
provider or
an NDIS non-government service
provider, the
chief executive
Page
130 Current as at [Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 131]
Not authorised —indicative only
must give
notice to
the service provider
stating the
following— (a)
the
engaged person’s name and identifying details; (b)
the chief executive
has received police
information about
the engaged person
that the
chief executive
considers relevant
to the engagement of
the engaged person by the
service provider; (c) the chief executive is making a
screening decision about the engaged person;
(d) a reminder of the risk management
requirements under section 49; (e)
a
funded non-government service provider or an NDIS
non-government service provider may not
terminate the engagement of
the engaged person
solely or
mainly because the
service provider is given a notice under this section;
(f) if the
change in
police information is
a change in
criminal history, whether it is a charge or
conviction and whether or not the charge or conviction is
for a serious offence; (g)
if
the change in police information is a conviction for a
serious offence— (i)
that under
section 70, it
is an offence
for the service provider
to engage, or continue to engage, the engaged
person at a service outlet of the service provider;
and (ii) the effect of
section 74. (4) The funded
non-government service
provider or
NDIS non-government service
provider must
not terminate the
engaged person’s
engagement or
continued engagement solely
or mainly because
the service provider
is given the
notice. (5)
This
section does not apply to a sole trader. (6)
In
this section— Current as at [Not applicable]
Page
131
Not authorised —indicative
only Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 132]
engaged person means—
(a) the holder
of a positive
notice, other
than a
positive notice that is
suspended under section 86; or (b)
the
holder of a positive exemption notice, other than a
positive exemption
notice that
is suspended under
section 88; or (c)
a
person about whom a prescribed notice application or
exemption notice application is made if the
application has not been decided or withdrawn.
132 Withdrawal of engaged person’s consent
to screening (1) This section applies if the chief
executive— (a) has received
an application from
a funded non-government service
provider or
an NDIS non-government
service provider for a prescribed notice or
exemption notice
about a
person (the
engaged person
);
and (b) has not
yet issued the
prescribed notice
or exemption notice.
(2) The engaged person may give a notice
to the chief executive withdrawing the engaged person’s
consent to screening under this part. (3)
The engaged person
is taken to
have withdrawn
his or her
consent to screening under this part
if— (a) the chief executive gives the engaged
person a notice— (i) asking the
engaged person
to provide, within
a reasonable stated time, stated
information that the chief executive
reasonably needs
to establish the
engaged person’s identity; and
(ii) warning
the engaged person
that, if
the engaged person does not
comply with the request, the chief executive may
give the engaged person a notice of deemed
withdrawal; and Page 132 Current as at
[Not applicable]
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 132]
Not authorised —indicative only
(b) the engaged
person does
not comply with
the request within the
stated time; and (c) the chief executive can not establish
with certainty the engaged person’s identity; and
(d) the chief
executive gives
the engaged person
and the funded
non-government service
provider or
NDIS non-government service
provider a
notice of
deemed withdrawal
relating to the engaged person. (4)
Also, the engaged person is taken to have
withdrawn his or her consent to screening under this part
if— (a) the chief executive gives the engaged
person— (i) a notice
asking the
person to
provide, within
a reasonable stated
time, stated
information, including by way
of a submission, about a stated matter that the
chief executive reasonably believes is relevant to
the application; or (ii) a notice under
section 121; or (iii) a
notice asking
the person to
give the
necessary consent for
section 123 or 124; or (iv) a
notice asking
the person to
give the
necessary consent for
section 128 or 129; and (b) the notice
includes a warning that, if the engaged person does
not comply with
the notice, the
chief executive
may
give the person a notice of deemed withdrawal; and
(c) the engaged
person does
not comply with
the notice; and
(d) the chief
executive gives
the engaged person
and the funded
non-government service
provider or
NDIS non-government service
provider a
notice of
deemed withdrawal. (5)
Further, the engaged person is taken to have
withdrawn his or her consent to screening under this part
if— (a) the funded
non-government service
provider or
NDIS non-government service
provider has
given the
chief Current as at
[Not applicable] Page 133
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 132]
Not authorised —indicative
only executive notice that the person is no
longer engaged by the service provider or the chief executive
can not obtain information, in
writing, from
the service provider
that the person is
engaged by the service provider; and (b)
the engaged person
has not given
notice to
the chief executive about
the end of the engagement as required under section
53; and (c) the chief
executive gives
the engaged person
and the service provider
a notice of deemed withdrawal relating to the engaged
person. (6) In addition, the engaged person is
taken to have withdrawn his or her consent
to screening under this part if— (a)
the engaged person
gives the
chief executive, or
the chief executive gives the engaged
person, notice that the engaged person is charged with a
disqualifying offence, whether the charge was made before,
when or after the application was made; and
(b) the chief
executive gives
the engaged person
and the funded
non-government service
provider or
NDIS non-government service
provider a
notice of
deemed withdrawal under
this subsection relating to the engaged person.
(7) Additionally for an exemption notice
application, the engaged person is
taken to
have withdrawn
his or her
consent to
screening under this part if—
(a) the engaged
person gives
the chief executive, or
the chief executive gives the engaged
person, notice that the engaged person’s
WWC positive notice
is suspended under the
Working with Children Act; and (b)
the chief executive
gives the
engaged person
and the funded
non-government service
provider or
NDIS non-government service
provider a
notice of
deemed withdrawal. (8)
If the engaged
person withdraws
his or her
consent to
screening under this part before the chief
executive issues a Page 134 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part 5
Screening of particular persons engaged by department or particular
funded service providers [s 133]
prescribed notice
or exemption notice
about the
engaged person—
(a) the chief executive must not issue the
prescribed notice or exemption notice; and (b)
if the engaged
person withdraws
consent by
giving a
notice to the chief executive and the
engaged person is not a sole trader, the chief executive must
give notice of the withdrawal to
the funded non-government service
provider or NDIS non-government service
provider. (9) For subsection (5), a funded
non-government service provider or an NDIS
non-government service provider may give notice to the chief
executive that a stated person— (a)
is
engaged, or continues to be engaged, by the service
provider; or (b)
is
no longer engaged by the service provider. (10)
If the engaged
person is
an NDIS non-government service
provider who is a sole trader, a notice of
deemed withdrawal given to
the person under
subsection (3)(d),
(4)(d), (5)(c),
(6)(b) or
(7)(b) is
taken to
be given also
to the NDIS
non-government service provider.
(11) In this
section— notice of deemed withdrawal
,
relating to the engaged person, means a notice
stating that the engaged person is taken to have
withdrawn his or her consent to screening
under this part. 133 Compliance with requirement to end, or
not start, a person’s engagement (1)
This section
applies if
it would be
a contravention of
a provision of
this part
for a funded
non-government service
provider or
an NDIS non-government service
provider to
engage, or continue to engage, a person
(the engaged person )
at a
service outlet of the service provider. (2)
The funded non-government service
provider or
NDIS non-government service
provider must
comply with
the Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded service providers [s 134]
provision despite another Act or law or any
industrial award or agreement. (3)
The funded non-government service
provider or
NDIS non-government
service provider does not incur any liability because,
in compliance with
the provision, the
service provider does
not engage, or continue to engage, the engaged person at a
service outlet of the service provider. (4)
A
person whose positive notice is suspended under section 86,
or whose positive
exemption notice
is suspended under
section 88, may
be engaged by
the funded non-government service
provider or
NDIS non-government service
provider other than at a
service outlet of the service provider until the
suspension ends. 134
Guidelines for dealing with
information (1) The chief executive must make
guidelines, consistent with this Act,
for dealing with
information obtained
by the chief
executive under this part.
(2) The purpose of the guidelines is to
ensure— (a) natural justice is afforded to the
persons about whom the information is obtained; and
(b) only relevant information is used in
making screening decisions; and (c)
screening decisions, based on the
information, are made consistently. (3)
The
chief executive must give a copy of the guidelines to a
person on request. 135
Use
of information obtained under this part about a person
The
chief executive must not use information obtained under
this
part about a person, other than for this part. Page 136
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Screening of particular persons engaged by department or particular
funded service providers [s 136]
136 Chief executive must give police
commissioner a person’s current address (1)
The
chief executive must, on written application of the police
commissioner, give
the police commissioner information about an address
for a person if— (a) the chief executive has an address for
the person that is different to
the address stated
by the police
commissioner in the application; and
(b) the police commissioner is, under this
part, required to give a notice to the person.
(2) Information given
to the police
commissioner under
this section
must not
be used, disclosed
or accessed for
any purpose except to give a notice under
this part to the person. 137 Disqualification
order (1) This section applies if a person is
convicted of— (a) a disqualifying offence and the court
that convicts the person does not impose an imprisonment order
for the offence; or (b)
another serious
offence committed
in relation to,
or otherwise involving, a person with a
disability. (2) The court may, on application by the
prosecutor or on its own initiative, make an order (
disqualification order ) in relation
to the person stating that— (a)
the person may
not hold a
positive notice
or positive exemption
notice, or
apply for
a prescribed notice
or exemption notice, for a stated period;
or (b) the person may never hold a positive
notice or positive exemption notice
or apply for
a prescribed notice
or exemption notice. (3)
However, the court may make the
disqualification order only if the court
considers it would not be in the interests of people
with a
disability for
the chief executive
to issue a
positive notice or
positive exemption notice to the person. Current as at
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Screening of particular persons engaged by department or particular
funded service providers [s 138]
(4) A person
against whom
the disqualification order
is made may appeal
against the court’s decision under subsection (2)
in
the same way the person may appeal against the conviction.
(5) In this section— Crown
prosecutor includes— (a)
the
Attorney-General; and (b) the director of
public prosecutions; and (c) another person,
other than a police officer, appearing for the
State. prosecutor means—
(a) in the context of a proceeding before,
or an application to, a Magistrates Court—a
police officer
or Crown prosecutor;
or (b) otherwise—a Crown prosecutor.
138 Register of persons engaged by
particular entities or for whom particular applications are
made (1) The chief
executive must
keep a
register with
up-to-date information for
the following— (a) each person
engaged by
the department at
a service outlet of the
department; (b) each person for whom a prescribed
notice application or exemption notice application is
made. (2) The register
may include the
matters decided
by the chief
executive but must include the
following— (a) the person’s name; (b)
whether the person is engaged by the
department or by a funded non-government service
provider or
an NDIS non-government service
provider and,
if the person
is engaged by a funded non-government
service provider, the service provider’s name;
(c) whether the person is a sole
trader; Page 138 Current as at
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6 Positive behaviour support and restrictive practices
[s
139] (d) whether the
person has
been issued
a positive notice,
negative notice,
positive exemption
notice or
negative exemption
notice; (e) the date of issue of the prescribed
notice or exemption notice; (f)
if the person’s
consent to
screening under
part 10
is taken to
have been
withdrawn, the
date of
the withdrawal; (g)
if
the person applies for a review of a decision of the
chief executive
relating to
a prescribed notice
or exemption notice,
the details of
the review and
its outcome. (3)
If a funded
non-government service
provider or
an NDIS non-government
service provider proposes to start engaging a person at a
service outlet of the service provider, the service
provider may
apply to
the chief executive
in the approved
form
for information contained in the register. (4)
If a funded
non-government service
provider or
an NDIS non-government
service provider asks the chief executive for information
contained in the register, the chief executive must
give
the service provider the information. Part 6
Positive behaviour support and
restrictive practices Division 1
Preliminary 139
Purpose of pt 6 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
funded service
providers in
providing disability services
to Current as at [Not applicable]
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Positive behaviour support and restrictive practices
[s
140] those adults
with behaviour
that causes
harm to
themselves or others; and
(b) regulating the
use of restrictive practices
by funded 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. 140 Service providers
to which pt 6 applies (1) This part
applies to a funded service provider who provides
disability services to an adult with an
intellectual or cognitive disability (a relevant service
provider ). (2) Subsection (1)
applies subject to the Forensic Disability Act
2011 , section
47. (3) To remove
any doubt, this
part applies
to a funded
service provider in
relation to the provision of disability services to all
adults with
an intellectual or
cognitive disability receiving
disability services from the funded service
provider even if the disability services are not provided
with the funding received. 141 Principles for
performing functions etc. (1) This section
applies to a person, including a relevant service
provider, who
performs a
function, or
exercises a
power, under this
part. (2) Despite section 17, the person must
have regard to the human rights principle in performing the
function or exercising the power. Page 140
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6 Positive behaviour support and restrictive practices
[s
142] Not authorised —indicative only
142 Principles for providing disability
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 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 Current as at [Not applicable]
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Positive behaviour support and restrictive practices
[s
143] (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 .
143 Explanation of operation of pt
6 (1) The purpose
of this section
is to 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. (2)
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—
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Part
6 Positive behaviour support and restrictive practices
[s
144] (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). (3) 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. (4)
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. 144 Definitions for pt 6
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. Current as at
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Positive behaviour support and restrictive practices
[s
144] appropriately qualified see section
149. assessment see section
148(3). authorised psychiatrist see
the Mental Health
Act 2016 ,
schedule 3. 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. community
access services
means disability services
that are—
(a) community access services provided to
an adult with an intellectual or cognitive disability who
does not receive disability 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. 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. 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 person to whom the notice is
given may apply for review of the decision under section 187
within 28 days after the person receives the
notice; (c) how to apply for review of the
decision. GAA means the Guardianship and
Administration Act 2000 . Page 144
Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices
[s
144] Not authorised —indicative only
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. 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. 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.
multidisciplinary assessment
see
section 148(4). Current as at [Not applicable]
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Positive behaviour support and restrictive practices
[s
144] 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 .
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 that are— (a) respite services provided to an adult
with an intellectual or cognitive
disability who
does not
receive disability 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. 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,
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. Page 146 Current as at
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Part
6 Positive behaviour support and restrictive practices
[s
144] 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 .
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 .
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 .
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. Current as at
[Not applicable] Page 147
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Positive behaviour support and restrictive practices
[s
145] 145 Meaning 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. 146 Meaning 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,
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 .
Page
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6 Positive behaviour support and restrictive practices
[s
147] (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. 147 Meaning 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;
Current as at [Not applicable]
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Positive behaviour support and restrictive practices
[s
148] (e) using bed
rails or
guards to
prevent injury
while the
adult is asleep. Not
authorised —indicative
only Division 2 Important
concepts for using restrictive practices 148
Assessment 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 Page 150 Current as at
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6 Positive behaviour support and restrictive practices
[s
149] • 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.
149 Who 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 Current as at [Not applicable]
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[s
150] 150 What 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 Page 152
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6 Positive behaviour support and restrictive practices
[s
150] 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. Current as at [Not applicable]
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[s
151] (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. Division 3
Containment and seclusion
Subdivision 1 Requirements for
containing or secluding an adult 151
Containing 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.
Page
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[s
152] (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. 152
Containing 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. Current as at [Not applicable]
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153] 153 Containing 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. 154
Containing 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 Page 156 Current as at
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6 Positive behaviour support and restrictive practices
[s
155] (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. Subdivision
2 Multidisciplinary assessment and
development of positive behaviour
support plan 155
Application 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—
1 Under 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.
2 If the adult is the subject of an
existing containment or seclusion approval,
see subdivision 3
for changing the
adult’s positive
behaviour support plan. Current as at
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[s
156] Not authorised —indicative
only 156 Chief 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 persons— (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 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— Page 158
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[s
157] (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. 157
Notice 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 persons
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). 158 Development 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. Current as at [Not applicable]
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[s
158] Not authorised —indicative
only (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 person
who
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 persons
a decision notice about the
decision not to develop the plan— Page 160
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6 Positive behaviour support and restrictive practices
[s
159] (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). Not
authorised —indicative only
159 Participation 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
. Subdivision 3 Changing a
positive behaviour support plan 160
Application of sdiv 3 This
subdivision applies
if an adult
with an
intellectual or
cognitive disability is
the subject of
a containment or
seclusion approval. Current as at
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[s
161] 161 Who may change positive behaviour
support plan The positive behaviour
support plan
for the adult
may be changed only by
the chief executive. Not authorised —indicative
only 162 When 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.
163 Requirements 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 Page 162
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6 Positive behaviour support and restrictive practices
[s
164] assessment to
be conducted, or
consult any
of the persons
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. 164
Action 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. Current as at [Not applicable]
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[s
164] Not authorised —indicative
only • 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 Page 164 Current as at
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6 Positive behaviour support and restrictive practices
[s
164] 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.
Current as at [Not applicable]
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[s
165] Subdivision 4 General
requirements for containment or seclusion Not
authorised —indicative
only 165 Relevant 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. Division 4 Use of
restrictive practices other than containment
or seclusion Subdivision 1 Requirements for
using chemical, mechanical or physical restraint, or
restricting access 166
Using
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— Page 166
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[s
167] (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. 167
Using
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 Current as at [Not applicable]
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[s
168] 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.
168 Using 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. Page 168 Current as at
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6 Positive behaviour support and restrictive practices
[s
169] 169 Using 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. Current as at
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[s
170] 170 Using 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. 171 Using 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 Page 170 Current as at
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[s
172] (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. Subdivision
2 Assessment of adult and positive
behaviour support plan 172
Application 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
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[s
173] 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). 173 Requirements 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; Page 172
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[s
173] (ii) any
guardian or
informal decision-maker for
the adult; (iii)
any other relevant
service provider
providing disability
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.
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[s
174] 174 Changing 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.
175 Requirement 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. Page 174 Current as at
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176] (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. 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 non-government
service provider may be given a compliance notice
requiring the
provider to
remedy a
contravention of
a requirement under this
subdivision. 176 Requirement 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 Current as at
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[s
177] 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. 177 Requirement 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— Page 176 Current as at
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[s
178] (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.
Subdivision 4 Short term
approvals given by chief executive 178
Short
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— Current as at
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[s
178] (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; Page 178
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[s
178] (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)
A
person 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— Current as at [Not applicable]
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[s
179] impaired capacity see the
Guardianship and
Administration Act 2000
,
schedule 4. Not authorised —indicative
only 179 Period 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. Division 5
Use
of restrictive practices for respite services
or community access services 180
Purpose 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.
181 Requirement to develop
respite/community access plan (1)
The relevant service
provider must
develop a
respite/community access plan for the
adult. Page 180 Current as at
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181] (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 Current as at
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182] (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. 182 Obtaining information about the
adult In developing a respite/community access
plan, the relevant service provider
must obtain,
from the
persons 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). 183
Consultation In developing a
respite/community access plan for an adult, the relevant
service provider must consult with, and consider
the
views of, the following persons— (a)
the
adult; Page 182 Current as at
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[s
184] (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 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 184
Risk
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.
Division 6 Review of
particular chief executive decisions 185
Application 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. Current as at [Not applicable]
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[s
186] 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). Not authorised —indicative
only 186 Definitions for
div 6 In this division— interested
person , for a relevant decision, means a person
to whom the chief executive is required under
this part to give a decision notice about the decision.
relevant decision see section
185. 187 Application 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. 188 Review 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 Page 184
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[s
189] (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. Division 7 Miscellaneous
provisions Subdivision 1 Immunity for use
of restrictive practices 189
Immunity 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. 190
Immunity 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—
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190] Not authorised —indicative
only Page 186 (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;
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[s
191] (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. Subdivision
2 Requirements for relevant service
providers Note—
Under the
Community Services
Act 2007 ,
section 19, a
funded non-government
service provider may be given a compliance notice
requiring the
provider to
remedy a
contravention of
a requirement under this
subdivision. 191 Requirement to give statement about
use of restrictive practices (1)
This
section applies if a relevant service provider providing
disability services to an adult with an
intellectual or cognitive disability 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 ). Current as at [Not applicable]
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[s
192] (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
192 Requirement 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— Page 188 Current as at
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[s
192] (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—
Current as at [Not applicable]
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[s
193] (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. 193
Requirement to keep and implement
procedure (1) This section applies to a relevant
service provider who 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—
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6 Positive behaviour support and restrictive practices
[s
194] (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. 194
Requirement to keep records and other
documents (1) This section
applies to
a relevant service
provider 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
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
are provided to
the adult, a
copy
of the interim order. Current as at [Not applicable]
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[s
195] Not authorised —indicative
only 195 Notification
requirements about approvals given for use of restrictive
practices (1) If— (a)
a
relevant service provider 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 who
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 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
who 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. Page 192
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6 Positive behaviour support and restrictive practices
[s
196] (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.
Subdivision 3 Confidentiality
provisions 196 Definitions 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. health professional means a person
engaged in delivering a private sector health service,
including the following— (a) a registered
health practitioner; Current as at [Not applicable]
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[s
197] (b) any other person, including, for
example, an audiologist, dietician, social worker or speech
pathologist. health service
chief executive
means a
health service
chief executive under
the Hospital and Health Boards Act 2011
. 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. 197
Relevant 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. Page 194
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6 Positive behaviour support and restrictive practices
[s
198] (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.
198 Relevant 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 Current as at [Not applicable]
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[s
199] (f) to protect a person with a disability
from abuse, neglect or exploitation. Subdivision
4 Reporting and provision of
particular information 199
Requirement to give information about use of
restrictive practice to chief executive
(1) This section
applies to
a relevant service
provider 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. 200
Chief
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.
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6A Disability Services Act 2006
Part
6A Investigation, monitoring and enforcement [s 200A]
Investigation, monitoring and
enforcement Division 1
Preliminary 200A
Purpose of part The
purpose of
this part
is to prescribe
particular functions
and powers of
authorised officers
appointed under
the Community Services Act 2007
. 200B References 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. 200C Reference 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. Current as at [Not applicable]
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Part
6A Investigation, monitoring and enforcement [s 200D]
Division 2 Functions of
authorised officers 200D Existing 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.
200E Additional functions of authorised
officers in relation to NDIS non-government 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
non-government service providers with this Act; 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. Page 198
Current as at [Not applicable]
Division 3 Disability
Services Act 2006 Part 6A Investigation, monitoring and
enforcement [s 200F] Powers of
authorised officers for particular functions
Not authorised —indicative only
Subdivision 1 Preliminary 200F
Application of division for particular
functions This division applies for the performance of
the functions of an authorised officer mentioned in section
200E. Subdivision 2 General power of
entry 200G General 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
non-government 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. Current as at
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6A Investigation, monitoring and enforcement [s 200H]
(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 Subdivision 3 Entry by
consent 200H Application 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). 200I
Incidental 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 Page 200 Current as at
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6A Investigation, monitoring and enforcement [s 200J]
to
enter when they wish to contact an occupier of the
place. Not
authorised —indicative only
200J Matters 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.
200K Consent 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. Current as at
[Not applicable] Page 201
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6A Investigation, monitoring and enforcement [s 200L]
(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. Subdivision 4 Entry under
warrant 200L Application 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. 200M Issue 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— (a) to protect
a person who
is a participant receiving
services, under the person’s participant’s
plan, from an NDIS non-government service
provider at
the place from
risk of
harm because
of abuse, neglect
or exploitation; or Page 202
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6A Investigation, monitoring and enforcement [s 200N]
(b) to check
whether an
NDIS non-government service
provider has complied with, or is complying
with, this Act. (2)
However, the magistrate may issue a warrant
under subsection (1)(b) only if the magistrate is satisfied
noncompliance may significantly affect the delivery of a
service to a participant. (3) 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. 200N
Electronic 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— Current as at [Not applicable]
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203
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6A Investigation, monitoring and enforcement [s 200O]
(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. Not authorised
—indicative only
200O Additional 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(3); and (ii)
the authorised officer
must complete
a form of
warrant, including by writing on it the
information mentioned in
section 200M(3)
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 Page 204 Current as at
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6A Investigation, monitoring and enforcement [s 200P]
(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 . 200P Defect 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).
Current as at [Not applicable]
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Part
6A Investigation, monitoring and enforcement [s 200Q]
200Q Entry 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).
Subdivision 5 General powers
of authorised officer after entering place
200R Application 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).
Page
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6A Investigation, monitoring and enforcement [s 200S]
(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. Not
authorised —indicative only
200S General 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 this Act
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.
Current as at [Not applicable]
Page
207
Not authorised —indicative
only Disability Services Act 2006
Part
6A Investigation, monitoring and enforcement [s 200T]
(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.
200T Power 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. 200U Offence 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. Page 208 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
6A Investigation, monitoring and enforcement [s 200V]
200V Failure 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. Subdivision 6 Additional
information-obtaining power 200W
Power
to require information (1) This
section applies
if an authorised officer
reasonably believes—
(a) an offence against this Act has been
committed by an NDIS non-government service provider;
or (b) there has
been a
service delivery
failure by
an NDIS non-government service
provider and
the service provider
may be able
to give information about
the failure; or (c)
a
person who is a participant receiving services, under
the person’s participant’s plan,
from an
NDIS non-government
service provider may be at risk of harm because of
abuse, neglect or exploitation by the service provider.
(2) The authorised officer
may, by
notice given
to the NDIS
non-government service provider, require the
service provider to give the
authorised officer
information related
to the offence or
matter mentioned in subsection (1) within a stated
reasonable time and in a stated way.
(3) A requirement under
subsection (2)
is an information requirement .
Current as at [Not applicable]
Page
209
Not authorised —indicative
only Disability Services Act 2006
Part
6A Investigation, monitoring and enforcement [s 200X]
(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 non-government service
provider who
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 non-government
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
non-government service provider it is an offence not to
comply with the requirement unless the
service provider has a reasonable excuse. (11)
In
this section— service delivery failure means a
significant failure to deliver a service to a
participant who is paying for the service wholly or
partly under the participant’s plan.
200X Offence to contravene information
requirement (1) An NDIS
non-government 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.
Page
210 Current as at [Not applicable]
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Disability Services Act 2006
Part
7 Legal proceedings [s 201] (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. Part 7 Legal
proceedings Division 1 Application 201
Application of pt 7 This part
applies to a proceeding under this Act. Division 2
Evidence 202
Appointments 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.
203 Signatures A
signature purporting to
be the signature
of the chief
executive is evidence of the signature it
purports to be. Current as at [Not applicable]
Page
211
Not authorised —indicative
only Disability Services Act 2006
Part 7
Legal proceedings [s 204] 204
Evidentiary 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 person 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. 205 Positive notice card is evidence of
holding positive notice If a
person holds
a current positive
notice card,
the card is
evidence of the person holding a current
positive notice. Division 3 Proceedings 206
Indictable and summary offences
(1) An offence against section 71(1) or 74
is an indictable offence that is a crime. Page 212
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
7 Legal proceedings [s 207] (2)
Otherwise, an offence against this Act is a
summary offence. 207 Proceedings 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
defendant asks
at the start
of the hearing
that the
charge be prosecuted on indictment;
or (b) the magistrate considers
the charge should
be prosecuted on indictment.
(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 150 penalty
units or
2 years imprisonment. Current as at
[Not applicable] Page 213
Not authorised —indicative
only Disability Services Act 2006
Part 7
Legal proceedings [s 208] 208
Limitation 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 . 209 Proceeding 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 .
210 When 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. 211
Allegations 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’.
Page
214 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
7 Legal proceedings [s 212] 212
Forfeiture 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. 213 Dealing 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. 214
Responsibility 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. Current as at [Not applicable]
Page
215
Not authorised —indicative
only Disability Services Act 2006
Part 8
Miscellaneous [s 215] (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 Division 1
Records 215
Funded non-government service provider or
NDIS non-government service provider must keep
records A funded non-government service
provider or
an NDIS non-government
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 Page 216
Current as at [Not applicable]
Disability Services Act 2006
Part
8 Miscellaneous [s 216] (b)
for a funded
non-government service
provider—100 penalty
units. Not authorised —indicative only
Division 2 Locking of
gates, doors and windows 216
Application of div 2 This division
applies if— (a) a relevant
service provider
locks gates,
doors or
windows at
premises where
disability services
are provided to
adults with
an intellectual or
cognitive disability;
and (b) the only reason the gates, doors or
windows are locked is to prevent physical harm being caused to
an adult with a skills deficit. 217
Definitions for div 2 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
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. relevant service provider
see
section 140. Current as at [Not applicable]
Page
217
Not authorised —indicative
only Disability Services Act 2006
Part 8
Miscellaneous [s 218] 218
Immunity from liability—relevant service
provider (1) The relevant service provider is not
civilly or criminally liable for locking
gates, doors or windows if— (a)
the
relevant service provider acts honestly and without
negligence; and (b)
the relevant 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 relevant 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,
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.
Page
218 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
8 Miscellaneous [s 219] 219
Immunity from liability—individual acting
for relevant service provider An
individual, acting
for a relevant
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. 220
Department’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
relevant 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
relevant 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. Current as at [Not applicable]
Page
219
Disability Services Act 2006
Part 8
Miscellaneous [s 221] Division 3
Other matters Not
authorised —indicative
only 221 Disability
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 a 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 a 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 a 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). Page 220
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
8 Miscellaneous [s 222] (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 the Public Service
Act 2008 , section 22, this section
does
not apply to a public service office. 222
Establishment 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 and
disability services
as the Minister
considers appropriate. 223
Membership 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 a disability;
(b) a family member or carer of a person
with a disability; (c) another person the Minister considers
has expertise or experience relevant to people with a
disability. 224 Dissolution The Minister may
dissolve an advisory committee at any time. Current as at
[Not applicable] Page 221
Not authorised —indicative
only Disability Services Act 2006
Part 8
Miscellaneous [s 225] 225
Other
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. 226 Person with a disability must advise
chief executive about compensation (1)
This section
applies to
a person with
a 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 a 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. Page 222
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
8 Miscellaneous [s 227] (4)
The
person who applies for funding on behalf of a person with
a 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. 227
Confidentiality of information about
criminal history and related information (1)
This
section applies to a person who— (a)
is, or has
been, the
chief executive, a
public service
employee, or a selection panel member;
and (b) in that capacity acquired information,
or gained access to a document,
under previous
part 9
about another
person’s criminal
history or
about an
investigation relating to the
possible commission of a serious offence by another
person. (2) This section also applies to a person
who— (a) is, or
has been, the
chief executive, a
public service
employee or a selection panel member;
and (b) in that capacity acquired information,
or gained access to a document, under part 5 about—
(i) another person’s police information;
or Current as at [Not applicable]
Page
223
Not authorised —indicative
only Disability Services Act 2006
Part 8
Miscellaneous [s 227] (ii)
another person’s
mental health,
including information, or
a document, about a proceeding in the
Mental Health
Court or
the Mental Health
Review Tribunal. (3)
The
person must not disclose the information, or give access
to
the document, to anyone else. Maximum
penalty—100 penalty
units or
2 years imprisonment. (4)
Subsection (3) does not apply to the
disclosure of information, or giving of access to a document,
about a person— (a) if subsection
(1) applies—to the
chief executive, a
public service employee or selection panel
member for the purpose of assessing the person’s
suitability to be, or continue to be, a public service
employee; or (b) if subsection (2) applies—
(i) to the chief executive or a public
service employee for the purpose of a screening decision;
or (ii) for
information or
a document about
a person engaged or to be
engaged by the department—to the chief
executive, a public service employee or selection
panel member
for the purpose
of assessing the person’s suitability to
be, or continue to be, engaged
by the department at
a service outlet;
or (c) if the person is an adult—with the
person’s consent; or (d) if
the disclosure or
giving of
access is
otherwise required under
an Act. (5) In this section— previous part
9 means part 9 of this Act as in force from
time to time before the commencement of this
definition. selection panel member means a member
of a panel formed to make a
recommendation to
the chief executive
about a
person’s employment as a public service
employee. Page 224 Current as at
[Not applicable]
Disability Services Act 2006
Part
8 Miscellaneous [s 228] Not
authorised —indicative only
228 Confidentiality of other
information (1) This section
applies to
confidential information other
than information
mentioned in section 227(1)(b) or (2)(b). (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) or (5). 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 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 Current as at [Not applicable]
Page
225
Not authorised —indicative
only Disability Services Act 2006
Part 8
Miscellaneous [s 229] (ii)
the
person to whom the information relates is an adult when the
authorisation is given; or (f) to protect a
person with a disability from abuse, neglect or
exploitation. (5) Also, a person may disclose
information to— (a) another department, a
funded non-government service
provider, an NDIS non-government service
provider or another entity to enable the department,
service provider or entity to
provide for
the needs of
a person with
a disability; or (b)
the
Commonwealth or another entity for the purposes of
an
agreement with the Commonwealth. 229
Power
to require information or documents (1)
The chief executive
may give notice
to a funded
non-government service
provider or
an NDIS non-government 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 to consumers of the
service provider. (2) The funded
non-government service
provider or
NDIS non-government service
provider must
comply with
the notice. (3)
For a requirement to
give a
document, the
funded non-government service
provider or
NDIS non-government service provider
may comply with the requirement by giving a copy of the
document certified as a true copy of the document.
230 Protection from liability for giving
information (1) This section applies to the giving of
information to the chief executive, by a funded non-government
service provider or an NDIS non-government service provider
under this Act. (2) A funded
non-government service
provider or
an NDIS non-government
service provider, or a person on behalf of the Page 226
Current as at [Not applicable]
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Disability Services Act 2006
Part
8 Miscellaneous [s 231] 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. 231 Chief executive to advise
on-disclosure (1) This section
applies to
information or
a document that
the chief executive has obtained from a
funded non-government service provider or an NDIS
non-government service provider under section
229. (2) The chief executive must advise the
funded non-government service provider
or NDIS non-government service
provider before giving
the information or document to another entity, Current as at
[Not applicable] Page 227
Disability Services Act 2006
Part 8
Miscellaneous [s 232] 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. Not authorised —indicative
only 232 Chief executive
may enter into arrangement about giving and receiving
information with police commissioner (1)
This
section applies only to the extent that another provision
under this Act allows the chief executive to
give information to the police commissioner or the police
commissioner to give information to the chief
executive. (2) The chief executive and the police
commissioner may enter into a written arrangement by which
the information is given or received. (3)
Without limiting subsection (2), the
arrangement may provide for the electronic transfer of
information, including on a daily basis.
(4) However, if information 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. 233
Chief
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 and the NDIS Act 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 Page 228
Current as at [Not applicable]
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Disability Services Act 2006
Part
8 Miscellaneous [s 234] 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. (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 NDIS
Act, section 21. 234 Delegation 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. Current as at
[Not applicable] Page 229
Disability Services Act 2006
Part 8
Miscellaneous [s 235] (2)
However, the Minister must not delegate the
review of the Act under section 240. Not
authorised —indicative
only 235 Delegation 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. 236
Protecting 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. 237 Approval of forms The chief
executive may approve forms for use under this Act.
238 Service 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 Page 230 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
8 Miscellaneous [s 239] (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. 239 Regulation-making power
(1) The Governor
in Council may
make regulations under
this Act.
(2) A regulation made under this Act
may— (a) impose a penalty of not more than 20
penalty units for a contravention of a provision of a
regulation; and (b) prescribe fees payable under this Act
and the matters for which fees are payable. 240
Review 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. 241 Review 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. Current as at
[Not applicable] Page 231
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 241A]
241A Review 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. 241B Expiry of pt 6A Part 6A expires
on 30 June 2019. Part 9 Repeal and
transitional provisions Division 1
Repeal 242
Repeal of Disability Services Act
1992 The Disability Services Act 1992 No. 24 is
repealed. Division 2 Transitional
provisions for Act No. 12 of 2006 243
Definitions for div 2 In this
division— commencement means the
commencement of this part. repealed Act means the
Disability Services Act 1992
. Page 232 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 244]
244 Screening 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. 245
Certain 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. Current as at
[Not applicable] Page 233
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 246]
(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 . 246 When 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). Page 234
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 247]
247 Queensland 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. 248
Disability 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. Current as at
[Not applicable] Page 235
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 249]
(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. Division 3 Transitional
provisions for Disability Services and Other Legislation
Amendment Act 2008 and Justice
and
Other Legislation Amendment Act 2010
Subdivision 1 Preliminary 249
Interpretation (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— Page 236
Current as at [Not applicable]
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Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 250]
(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. (2)
If the context
permits, terms
used in
this division
that are
defined for part 6 have the meanings given
for part 6. 250 Declaration 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.
Current as at [Not applicable]
Page
237
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 251]
Subdivision 2 Immunity from
liability for use of restrictive practices before
commencement 251
Immunity 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. 252
Immunity 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 Page 238 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 253]
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. Subdivision 3 Immunity from
liability for use of restrictive practices during
transitional period 253
Immunity 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 Current as at [Not applicable]
Page
239
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 254]
(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. 254 Requirement 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.
Page
240 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 255]
255 Immunity 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. 256 Relationship of subdivision with pt
6 This subdivision does not limit part
6. 257 Circumstances 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
Current as at [Not applicable]
Page
241
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 258]
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. Subdivision 4 Other
provisions 258 Requirements 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 Page 242 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 259]
(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. 259
Short
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— Current as at
[Not applicable] Page 243
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 260]
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 . Division 4 Transitional
provision for Criminal Code and Other Acts Amendment
Act
2008 260 References 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 . Division 5 Transitional
provisions for Criminal History Screening Legislation
Amendment Act 2010 Subdivision
1 Preliminary 261
Definition for div 5 In this
division— amending Act
means the
Criminal History
Screening Legislation
Amendment Act 2010 . Subdivision 2 Transitional
provisions relating to previous part 9 262
Definitions for sdiv 2 In this
subdivision— Page 244 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 263]
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. 263 Notice 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. 264 Request for prescribed police
information not complied with at the commencement
(1) This section applies if—
(a) the chief
executive has,
under section
70 of the unamended
Act, asked
the police commissioner for
prescribed police information about a
person; and Current as at [Not applicable]
Page
245
Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 265]
(b) at the commencement, the police
commissioner has not given the
prescribed police
information to
the chief executive. (2)
Despite section
70(3) of the unamended
Act, the
police commissioner is
no longer required to comply with the chief executive’s
request. Not authorised —indicative
only 265 Particular
prescribed police information obtained but not used before
commencement (1) This section applies if—
(a) before the
commencement, the
police commissioner gave
the chief executive
a person’s prescribed police
information under section 70 of the
unamended Act; and (b) at the
commencement, the
chief executive
has not, in
relation to
the prescribed police
information, made
an assessment about
the person’s suitability for
engagement, or
continued engagement, by
the department under section 72 of the
unamended Act. (2) The chief executive must
immediately— (a) destroy the prescribed police
information; and (b) stop making the assessment.
Note— Now see the
following in relation to the engagement, or continued
engagement, of the person by the
department— (a) if the person is engaged or to be
engaged at a service outlet of the department—part
5; (b) if the
person is
engaged or
to be engaged
in regulated employment—the
Working with Children Act, chapter 8 and the Public Service
Act 2008 , chapter 5, part 6, division 3A;
(c) in any other case—the
Public Service Act 2008 , chapter 5,
part 6. 266 Notice not given by prosecuting
authority at the commencement (1)
This
section applies if— Page 246 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 267]
(a) before the
commencement, a
person engaged
by the department is
charged with an indictable offence; and (b)
at the commencement, the
police commissioner or
director of
public prosecutions (a
prosecuting authority
)
has not given information about the charge to the
chief executive
as required by
section 71 of
the unamended Act. (2)
Despite section
71 of the unamended
Act, the
prosecuting authority is no
longer required to give the information to the chief
executive. 267 Use of particular information obtained
before commencement Section
72(2) of the unamended
Act continues to
apply in
relation to information about a person
received by the chief executive under
part 9
of the unamended
Act as if
the amending Act had not been
enacted. Subdivision 3 Transitional
provisions relating to particular amendments of part 5
268 Explanation of sdiv 3
(1) The amendments of
provisions of
part 5
of this Act
by the amending Act are
to commence in 2 stages. (2) This
subdivision provides
for particular transitional arrangements for
amendments of provisions of part 5 that are to commence in
the first of the 2 stages. 269 Definitions for
sdiv 3 In this subdivision— commencement means the
commencement of this section. stage
2 commencement date
means the
day subdivision 4
commences. Current as at
[Not applicable] Page 247
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 270]
unamended Act means this Act
as in force from time to time before the
commencement. 270 New serious offences
(1) The amendment of section 47 by the
amending Act does not affect a positive notice that is in
force at the commencement. (2) Without limiting
subsection (1), the chief executive may not cancel a
person’s positive notice on the basis the person would
not
have been issued a positive notice under this Act because
the person was
charged with
or
convicted of a new
serious offence before
the commencement. (3) However, subsections
(1) and (2) do
not prevent the
chief executive having
regard to a charge or conviction of a person for
a new serious
offence happening
before the
commencement in making a decision about the
person if— (a) the decision
is being made
under this
Act after the
commencement— (i)
because there
has been a
change in
the person’s criminal
history; or (ii) because the
chief executive has become aware of the charge or
conviction (but was not aware of it at the time the
positive notice was issued); or (b)
the decision relates
to a prescribed notice
application about the
person— (i) to which section 271 applies;
or (ii) made after the
commencement. (4) In this section— new serious
offence means an offence that— (a)
is a
serious offence under this Act; but (b)
was
not a serious offence under section 47 as in force
immediately before the commencement.
Page
248 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 271]
271 Existing applications for prescribed
notice (1) This section applies if—
(a) a prescribed notice application has
been made about a person; and (b)
the
application has not been decided or withdrawn at the
commencement. (2)
This Act
applies to
the application and,
if the application complies
with the
requirements of
the unamended Act,
the application is not invalid only
because it does not comply with this Act as in
force immediately after the commencement. 272
Continuation if chief executive acting on
own initiative (1) This section applies if—
(a) before the
commencement, the
chief executive
had started on the chief executive’s own
initiative to exercise a power in relation to a person or a
prescribed notice; and (b) the
chief executive
may, immediately after
the commencement, exercise the power under
this Act. (2) The chief executive may continue to
exercise the power under this Act in relation to the person or
prescribed notice. 273 Replacement of positive notice or
positive notice card (1) This section
applies if— (a) a person’s
current positive
notice or
current positive
notice card is lost or stolen 14 days or
less before the commencement; and (b)
at
the commencement, the person has not applied for a
replacement notice or card as required under
section 106 of the unamended Act. (2)
Section 106 of
the unamended Act
does not
apply to
the person. Current as at
[Not applicable] Page 249
Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 274]
(3) Section 106 as in force after the
commencement applies to the person as if the
reference to 14 days after the loss or theft were
a
reference to the later of the following— (a)
14
days after the loss or theft; (b)
7
days after the commencement. Not
authorised —indicative
only 274 Existing reviews
and appeals (1) This section applies if—
(a) before the commencement, a
person— (i) applied for
a review of
a decision of
the chief executive
under section
108 or 113(2)(a) of
the unamended Act; or (ii)
appealed under the QCAT Act against a
decision of the tribunal relating to a review under
section 108 or 113(2)(a) of the unamended Act;
and (b) the review
or appeal has
not been decided
at the commencement. (2)
The
entity hearing the review or appeal must apply this Act in
relation to the matter the subject of the
review or appeal. (3) Without limiting
subsection (2), the
entity may
exercise a
power of
the chief executive
under part
5 for deciding
a review of
a decision of
the chief executive, or
an appeal against a
decision of the tribunal, as to whether or not there is
an
exceptional case for a person. 275
Police commissioner’s decision that
information is investigative information
(1) This section
applies in
relation to
an offence (
new investigative information
offence ) that— (a)
is a
schedule 6 offence; but (b) was not a
serious sexual or violent offence within the meaning of that
term under the unamended Act. Page 250
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 276]
(2) Section 111 applies
in relation to
a positive notice
holder’s acts or
omissions constituting a new investigative information
offence even
if the acts
were
committed or omissions were
made
before the commencement of this section. (3)
In
this section— schedule 6 offence
see section 111 as
in force before
the commencement of the
Criminal Law (Child Exploitation and
Dangerous Drugs) Amendment Act 2013
,
section 29. 276 References to exemption notices
etc. (1) The purpose of this section is to
explain references to any of the
following in
a provision of
this Act
as in force
immediately after the commencement—
(a) an exemption notice
application; (b) an exemption notice;
(c) a positive
exemption notice
or negative exemption
notice; (d)
a
provision of proposed part 5, division 6. (2)
Proposed part
5, division 6
provides for
the making of
an exemption notice application and the
issue of an exemption notice to a person who holds a CCYPCG
positive notice. (3) An exemption notice issued under
proposed part 5, division 6 may
be a positive
exemption notice
or negative exemption
notice. (4)
Proposed part
5, division 6
is to commence
at the stage
2 commencement date, which is after the
commencement. (5) A reference in part 5 to a thing
mentioned in subsection (1)(a) to
(d) does not
have any
effect until
the stage 2
commencement date. (6)
In
this section— proposed part 5, division 6
means part 5, division 6 of this
Act
to be inserted by the amending Act. Current as at
[Not applicable] Page 251
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 277]
277 References to eligibility declarations
etc. (1) The purpose of this section is to
explain references to any of the
following in
a provision of
this Act
as in force
immediately after the commencement—
(a) an eligibility application;
(b) an eligibility declaration;
(c) a provision of proposed part 5,
division 10. (2) Proposed part
5, division 10
provides for
the making of
an eligibility application and
the issue of
an eligibility declaration to a
person. (3) Proposed part
5,
division 10 is to
commence at
the stage 2
commencement date, which is after the
commencement. (4) A reference in part 5 to a thing
mentioned in subsection (1)(a) to
(c) does not
have any
effect until
the stage 2
commencement date. (5)
In
this section— proposed part 5, division 10
means part 5, division 10 of this
Act
to be inserted by the amending Act. Subdivision
4 Transitional provisions relating to
other amendments of part 5
278 Explanation of sdiv 4
(1) The amendments of
provisions of
part 5
of this Act
by the amending Act are
to commence in 2 stages. (2) This
subdivision provides
for particular transitional arrangements for
amendments of provisions of part 5 that are to commence in
the second of the 2 stages. 279 Definitions for
sdiv 4 In this subdivision— Page 252
Current as at [Not applicable]
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Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 280]
commencement means the
commencement of this section. unamended
Act means this Act as in force from time to
time before the commencement. 280
Obtaining particular information from
police commissioner about particular persons
(1) This section applies in relation to a
person if— (a) the person— (i)
has
a current positive notice; or (ii)
is the subject
of an application for
a prescribed notice that has
not been decided or withdrawn at the
commencement; or (iii) has made an
application for the cancellation of the person’s
negative notice, or the cancellation of the suspension of
the person’s positive notice, that has not
been decided
or withdrawn at
the commencement; and (b)
under section
117, the chief executive
requested information from
the police commissioner, or access to the
police commissioner’s records,
about the
person before the
commencement. (2) If, at
the commencement, the
police commissioner has
complied with
the request, the
chief executive
may ask the
police commissioner for information, or
access to the police commissioner’s records, to enable the
chief executive to learn whether there is any new police
information about the person. (3)
Section 117 applies in relation to the chief
executive’s request under subsection (2) as if it were made
under section 117(2) in relation to only new police
information. (4) If, at
the commencement, the
police commissioner has
not complied with
the request, section
117 as in force
from the
commencement applies in relation to the
request. (5) In this section— Current as at
[Not applicable] Page 253
Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 281]
new police information means
information mentioned
in section 117(7) or (8).
Not authorised —indicative
only 281 Existing
applications for prescribed notice about a disqualified
person who is not a relevant disqualified person
(1) This section applies to a prescribed
notice application made before the commencement if the
application— (a) has not
been decided
or withdrawn at
the commencement; and (b)
relates to a person who is a disqualified
person but not a relevant disqualified person.
(2) If, at
the time of
the application, the
person did
not hold a
positive notice or held a positive notice
that was suspended under section 86— (a)
the
application is taken to have been withdrawn; and
(b) the chief executive must give notice
of the withdrawal to the person
and the funded
non-government service
provider who made the application.
(3) If, at the time of the application,
the person held a positive notice that was not suspended under
section 86— (a) the person
is taken to
have been
issued with
an eligibility declaration other
than for
section 54(6)(b); and
(b) the chief
executive must
decide the
application under
this
Act. (4) Subject to
subsection (5), this
Act applies to
an application mentioned
in subsection (3)(b) and,
if the application complies
with the
requirements of
the unamended Act,
the application is not invalid only
because it does not comply with this Act as in
force immediately after the commencement. (5)
Despite section
58(2), a prescribed notice
issued under
subsection (3)(b) in relation to a
prescribed notice application made before the
commencement remains current for 2 years Page 254
Current as at [Not applicable]
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 282]
after it
is issued, unless
it is earlier
cancelled under
part 5,
division 8. Not
authorised —indicative only
282 Existing applications for prescribed
notice about a relevant disqualified person
(1) This section applies to a prescribed
notice application made before the commencement if the
application— (a) has not
been decided
or withdrawn at
the commencement; and (b)
relates to a person who is a relevant
disqualified person. (2) The application
is taken to have been withdrawn. (3)
The
chief executive must give notice of the withdrawal to the
person and the funded non-government service
provider who made the application. 283
Other
existing applications for prescribed notice (1)
This
section applies if— (a) a prescribed notice application has
been made about a person; and (b)
the
application has not been decided or withdrawn at the
commencement; and (c)
neither section
281 nor section 282 applies
to the application. (2)
Subject to subsection (3), this Act applies
to the application and, if the application complies with the
requirements of the unamended Act, the application is not
invalid only because it does not comply with this Act as in
force immediately after the commencement. (3)
Despite section
58(2), a prescribed notice
issued under
subsection (2) in
relation to
a prescribed notice
application made before the
commencement remains current for 2 years after
it is issued,
unless it
is earlier cancelled
under part
5, division 8. Current as at
[Not applicable] Page 255
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 284]
284 Existing positive notices held by
disqualified persons who are not relevant disqualified
persons (1) This section
applies in
relation to
a positive notice
issued under section
54(2)(a) before the commencement to a person who is a
disqualified person but who is not— (a)
a
relevant disqualified person; or (b)
a person in
relation to
whom the
chief executive
has started, before the commencement, to
exercise a power under section 83. (2)
If,
at the commencement, the positive notice is not suspended
under section 86, the person is taken to
have been issued with an eligibility declaration.
(3) If, at
the commencement, the
positive notice
is suspended under section
86, this Act continues to apply in relation to the
positive notice. (4)
If,
after the commencement, the chief executive is to make a
decision about the person under section 54,
and it is the first time the
chief executive
is to make
a decision under
that section
about the
person after
the commencement, section 54(6)(b)
does not apply to the chief executive making the
decision. (5) Without limiting subsection (3), the
chief executive may have regard to
a charge or
conviction of
a person for
a new disqualifying
offence happening before the commencement in making a
decision about the person or the person’s positive
notice under this Act. (6)
In
this section— new disqualifying offence
means an offence that— (a)
is a
disqualifying offence under this Act; but (b)
was not an
excluding offence
under section
81 as in force
immediately before the commencement. Page 256
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 285]
285 Existing positive notices held by
relevant disqualified person because of temporary or interim
order (1) This section
applies in
relation to
a positive notice
issued under
section 54(2) before
the commencement (including a
positive notice
that is
suspended under
section 86 at
the commencement) to
a person who
is a relevant
disqualified person only
because the person is subject to either or both of
the
following— (a) a temporary offender prohibition
order; (b) an interim sexual offender
order. (2) If the positive notice is not
suspended under section 86 at the commencement,
the chief executive must, by notice given to the person,
suspend the person’s positive notice. (3)
The
notice must state the matters mentioned in section 86(2).
(4) If the
positive notice
is suspended under
section 86 at
the commencement, the
suspension continues
subject to
subsection (5). (5)
Sections 86 and 87 apply to the suspended
positive notice as if the notice
were suspended
under section
86(1) as in force
immediately after the commencement.
286 Existing positive notices held by
other relevant disqualified person (1)
This section
applies in
relation to
a positive notice
issued under
section 54(2) before
the commencement (including a
positive notice
that is
suspended under
section 86 at
the commencement) to
a person who
is a relevant
disqualified person other
than a relevant disqualified person mentioned in
section 285(1). (2)
The
positive notice is cancelled. (3)
If the positive
notice is
suspended under
section 86 at
the commencement, any
application for
the cancellation of
the suspension under
section 87 that
has not been
decided or
withdrawn at
the commencement is
taken to
have been
withdrawn. Current as at
[Not applicable] Page 257
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 287]
(4) The chief executive must give notice
of the cancellation of the positive notice to—
(a) the person; and (b)
the
funded non-government service provider who— (i)
is engaging the
person at
a service outlet
of the service
provider; or (ii) if the positive
notice is suspended under section 86 at
the commencement—was engaging
the person at
a service outlet
of the service
provider immediately before
the positive notice
was suspended. (5)
A
notice mentioned in subsection (4)— (a)
must
state that the positive notice is cancelled and the
date
the positive notice is cancelled; and (b)
is taken, for
sections 70 and
71, to be
a notice that
a negative notice has been issued to the
person on the date the positive notice is cancelled.
287 Currency of existing prescribed
notices (1) A positive
notice in
force at
the commencement remains
current for 2 years after it was issued
under the unamended Act, unless it is earlier cancelled under
part 5, division 8. (2) Subsection (1) applies despite section
58(2). 288 Existing applications to cancel
negative notice by relevant disqualified person
(1) This section applies if—
(a) a person
who is a
relevant disqualified person
has applied to
the chief executive
to cancel the
person’s negative notice
under section 82 or 83(3); and (b)
the
application has not been decided or withdrawn at the
commencement. Page 258
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 289]
(2) The application is taken to have been
withdrawn. (3) The chief executive must give notice
of the withdrawal to the person. 289
Other
existing applications to cancel a negative notice
(1) This section applies if—
(a) a person has applied to the chief
executive to cancel the person’s negative notice under section
82 or 83(3); and (b) the application has not been decided
or withdrawn at the commencement; and (c)
section 288 does not apply to the
application. (2) This chief
executive must
decide the
application under
this Act.
(3) For subsection (2), an application
made under section 101(3) of the
unamended Act
is taken to
have been
made under
section 82. 290
Continuation if chief executive acting on
own initiative (1) This section applies if—
(a) before the
commencement, the
chief executive
had started on the chief executive’s own
initiative to exercise a power in relation to a person or a
prescribed notice; and (b) the
chief executive
may, immediately after
the commencement, exercise the power under
this Act. (2) The chief executive may continue to
exercise the power under this Act in relation to the person or
prescribed notice. (3) For subsection
(1)(b), the chief executive’s power
under section 103 of
the unamended Act is taken to be exercisable, immediately after
the commencement, under
section 83(1)(b)(ii). Current as at
[Not applicable] Page 259
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 291]
291 Application of s 97 and sch 8,
definition relevant disqualified
person For section 97(1)(a) and
schedule 8, definition relevant
disqualified person , paragraph (a),
it is immaterial as to when the
offence mentioned
in the provision
was committed or
when the
person to
whom the
provision applies
was convicted. Example—
An
offence may have been committed, and the person convicted of
the offence, before the commencement.
292 Application of s 98
(1) This section applies in relation to a
person who— (a) is a disqualified person; and
(b) at the
commencement, is
engaged by
a funded non-government
service provider at a service outlet of the service
provider; and (c) is not
a person in
relation to
whom section
281(3) or 284(2) applies. (2)
To remove any
doubt, it
is declared that
section 98(1)(b) applies to the
person even if it is not an offence for a funded
non-government service
provider to
engage the
person at
a service outlet of the service
provider. 293 Existing reviews and appeals by
disqualified person (1) This section applies if—
(a) before the commencement, a
person— (i) applied for
a review of
a decision of
the chief executive
under section
108 or 113(2)(a) of
the unamended Act; or (ii)
appealed under the QCAT Act against a
decision of the tribunal relating to a review under
section 108 or 113(2)(a) of the unamended Act;
and Page 260 Current as at
[Not applicable]
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 294]
(b) the review
or appeal has
not been decided
at the commencement;
and (c) the person is a disqualified
person. (2) The entity
hearing the
review or
appeal must
dismiss the
review or appeal. Not
authorised —indicative only
294 Other existing reviews and
appeals (1) This section applies if—
(a) before the commencement, a
person— (i) applied for
a review of
a decision of
the chief executive
under section
108 or 113(2)(a) of
the unamended Act; or (ii)
appealed under the QCAT Act against a
decision of the tribunal relating to a review under
section 108 or 113(2)(a) of the unamended Act;
and (b) the review
or appeal has
not been decided
at the commencement;
and (c) the person is not a disqualified
person. (2) The entity hearing the review or
appeal must apply this Act in relation to the
matter the subject of the review or appeal. (3)
For subsection (2), a
review under
section 108 of
the unamended Act is taken to be a review
under section 109. (4) Without limiting
subsection (2), the
entity may
exercise a
power of
the chief executive
under part
10 for deciding
a review of
a decision of
the chief executive, or
an appeal against a
decision of the tribunal, as to whether or not there is
an
exceptional case for a person. 295
Disqualification orders for acts done or
omissions made before commencement A court may make
a disqualification order under section 137 in
relation to
a person convicted
of an offence
after the
Current as at [Not applicable]
Page
261
Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 296]
commencement arising out of an act done or
omission made before the commencement. Not
authorised —indicative
only 296 Continuing
engagement of volunteers (1) This section
applies if— (a) immediately before
the commencement, a
person was
engaged by a funded non-government service
provider at a service outlet of the service provider
as a volunteer; and (b) at the
commencement— (i) the person does not have a current
positive notice; and (ii) there
is a current
prescribed notice
application about the
person. (2) The funded non-government service
provider— (a) may continue
to engage the
person in
the regulated engagement even
though the
person does
not have a
current positive notice; and
(b) does not commit an offence against
section 68 for the continued engagement. (3)
Subsection (2) applies until the earlier of
the following— (a) 12 months after the
commencement; (b) the funded non-government service
provider is given a notice by the chief executive that a
negative notice has been issued
to the person
or the application is
withdrawn. 297
Provision about persons engaged to provide
disability services only to children
(1) Sections 281 to 283 apply in relation
to a prescribed notice application about a person engaged, or
to be engaged, by a funded non-government service provider to
provide disability services only to children.
Page
262 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 298]
(2) Sections 284
to 287 apply
in relation to
a current positive
notice held by a person engaged by a funded
non-government service provider
to provide disability services
only to
children. (3)
A
current positive notice card or current negative notice held
by a person
engaged by
a funded non-government service
provider to
provide disability services
only to
children continues
subject to section 58. (4) This section
applies despite section 42. (5)
In
this section— current , for a
prescribed notice or positive notice card, means
current under section 58 at the
commencement. Note— See the CCYPCG
Act, chapter 8 for obligations relating to children
disability services. 298
Provision about holders of CCYPCG positive
notice (1) Sections 281 to 283 apply in relation
to a prescribed notice application about
the holder of
a CCYPCG positive
notice despite section
51. (2) Sections 284
to 287 apply
in relation to
a current positive
notice held by the holder of a CCYPCG
positive notice at the commencement despite section
51. (3) A current positive notice card or
current negative notice held by
the holder of
a CCYPCG positive
notice at
the commencement continues
in effect despite
section 51 but
subject to section 58. (4)
Section 95 applies
to a current
positive notice
or current negative
notice held
by the holder
of a CCYPCG
positive notice at the
commencement. (5) A court
may make an
order under
section 137 before
the commencement stating that a person who
holds a CCYPCG positive notice— Current as at
[Not applicable] Page 263
Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 299]
(a) may not hold a positive exemption
notice, or apply for an exemption notice, for a stated
period; or (b) may never hold a positive exemption
notice or apply for an exemption notice. Not
authorised —indicative
only Subdivision 5 Other
transitional provision 299 References to
Youth Justice Act 1992 (1) This
section applies
to a reference
to the Youth
Justice Act
1992 in a provision
of this Act if the provision commences before the JJA
short title amendment commences. (2)
Until the JJA short title amendment
commences, the reference is taken to be a reference to
the Juvenile Justice Act 1992.
(3) In this section— JJA
short title
amendment means
the Juvenile Justice
and Other Acts Amendment Act 2009
,
section 9. Division 6 Provision for
the Health Practitioner Registration and Other
Legislation Amendment Act 2013 300
Application of pt 5 to former registered
speech pathologist (1)
Section 43 continues to apply to the
engagement of a former registered speech pathologist to the
extent mentioned in that section for a period of 3 months after
the commencement. (2) In this section— commencement means the
commencement of this section. former
registered speech
pathologist means
a person who,
immediately before the commencement, was
registered under the repealed Speech
Pathologists Registration Act 2001 .
Page
264 Current as at [Not applicable]
Not authorised —indicative only
Division 7 Disability
Services Act 2006 Part 9 Repeal and transitional
provisions [s 301] Transitional
provisions for Criminal Law (Child Exploitation and
Dangerous Drugs) Amendment Act
2013 Subdivision
1 Interpretation 301
Definitions for div 7 In this
division— amended Act means this Act
as amended by the Criminal Law (Child
Exploitation and
Dangerous Drugs)
Amendment Act
2013 .
commencement means the
commencement of this section. new disqualified
person means a person who is a disqualified
person only
because the
person has
been convicted
or is convicted of a
new disqualifying offence. new disqualifying offence
means an
offence that
is a disqualifying offence
under this
Act but was
not a disqualifying
offence under this Act immediately before the commencement. new
relevant disqualified person
means a
person who
is a relevant
disqualified person only because the person has been
convicted or is convicted of a new
disqualifying offence for which an imprisonment order has been
or is imposed. new serious offence means an offence
that is a serious offence under this Act but was not a serious
offence under this Act immediately before the
commencement. Current as at [Not applicable]
Page
265
Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 302]
Subdivision 2 Prescribed
notice applications and prescribed notices Not
authorised —indicative
only 302 Existing
prescribed notice application by new relevant disqualified
person (1) This section applies if—
(a) before the
commencement a
prescribed notice
application had been made about a person;
and (b) immediately before the commencement
the application had not been decided or withdrawn;
and (c) at the
commencement the
person is
a new relevant
disqualified person. (2)
The
person’s application is taken to be withdrawn. (3)
The chief executive
must give
written notice
about the
withdrawal of
the application to
the person and
the funded non-government
service provider who made the application. 303
Existing prescribed notice application if
person charged with new disqualifying offence or is new
disqualified person but not new relevant disqualified
person (1) This section applies if—
(a) before the
commencement a
prescribed notice
application had been made about a person;
and (b) immediately before the commencement
the application had not been decided or withdrawn;
and (c) at the commencement the person—
(i) is charged with a new disqualifying
offence; or (ii) is a new
disqualified person but not a new relevant disqualified
person. Note— If a person
holds a positive notice, see also sections 306 and 307.
(2) Subsection (3) applies if—
Page
266 Current as at [Not applicable]
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Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 303]
(a) at the commencement the person is
charged with a new disqualifying offence; or
(b) at the commencement the person is a
new disqualified person but not a new relevant disqualified
person and, at the time of making the application—
(i) was not issued, or not taken to have
been issued, an eligibility declaration; and
(ii) did not hold a
positive notice. (3) At the commencement—
(a) the application is taken to be
withdrawn; and (b) the chief executive must give written
notice about the withdrawal of
the application to
the person and
the funded non-government service provider
who made the application. Note—
If a person
charged with
a new disqualifying offence
also holds
a positive notice, see also sections 307
and 86. (4) Subsection (5) applies
if the person
is a new
disqualified person but not a
new relevant disqualified person and at the time of making
the application the person— (a)
was not issued,
or not taken
to have been
issued, an
eligibility declaration; and
(b) held a positive notice that was not
suspended. (5) At the commencement—
(a) the person
is taken to
have been
issued an
eligibility declaration
other than for section 54(6)(b); and (b)
the
chief executive must decide the application under the
amended Act. (6)
If the person
is a new
disqualified person
but not a
new relevant disqualified person and, at
the time of the application the
person was
issued an
eligibility declaration, at
the commencement the
chief executive
must decide
the Current as at [Not applicable]
Page
267
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 304]
application under the amended Act but
section 54(6)(b) does not apply to the chief executive
making the decision. (7) For subsections
(3) and (6), if before the commencement the chief
executive had,
under section
82, cancelled a
negative notice
issued to
the person, on
the commencement section 54(6)(a)
does not apply to the chief executive making the
decision. 304 Other existing prescribed notice
applications (1) This section applies if—
(a) before the
commencement a
prescribed notice
application had been made about a person;
and (b) immediately before the commencement
the application had not been decided or withdrawn;
and (c) section 302 or 303 does not
apply. (2) At the
commencement the
chief executive
must decide
the application under the amended
Act. 305 Current positive notice for new
relevant disqualified person (1)
This
section applies if— (a) before the
commencement a
person held
a positive notice;
and (b) immediately before the commencement
the notice was current; and (c)
at the commencement the
person is
a new relevant
disqualified person. (2)
At
the commencement the amended Act applies and the chief
executive must
cancel the
person’s positive
notice and
substitute a negative notice under section
85. Note— Under section
80, a person must return their cancelled positive notice
and
any positive notice card issued to the person to the chief
executive. Page 268 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 306]
(3) Also, if the positive notice is
suspended under section 86 at the
commencement, any application for the cancellation of the
suspension under
section 87 that
has not been
decided or
withdrawn at
the commencement is
taken to
have been
withdrawn. (4)
The chief executive
must give
written notice
about the
withdrawal of
the application under
subsection (3) to
the person and the funded non-government
service provider who made the application.
306 Current positive notice for new
disqualified person other than new relevant disqualified
person (1) This section applies if—
(a) before the
commencement a
person held
a positive notice;
and (b) immediately before the commencement
the notice was current; and (c)
at
the commencement the person is a new disqualified
person but not a new relevant disqualified
person. (2) If, at
the commencement, the
person’s positive
notice is
suspended under
section 86, the
amended Act
applies in
relation to the positive notice.
(3) If, at the commencement, the person is
not issued, or not taken to have been issued, an eligibility
declaration and the person’s positive notice
is not suspended under section 86— (a)
the person is
taken to
have been
issued an
eligibility declaration
under section 101; and (b) the
amended Act
applies in
relation to
the positive notice.
(4) If, at
the commencement, the
person is
issued, or
taken to
have
been issued, an eligibility declaration and the person’s
positive notice
is not suspended
under section
86, the amended Act
applies in
relation to
the person’s positive
notice. Current as at
[Not applicable] Page 269
Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 307]
(5) If, after the commencement, the chief
executive is to make a decision about the person under
section 54, and it is the first time
the chief executive
is to make
a decision under
that section
about the
person after
the commencement, section 54(6)(b)
does not apply to the chief executive making the
decision. Not authorised —indicative
only 307 Other current
positive notices (1) This section applies if—
(a) before the
commencement a
person held
a positive notice;
and (b) immediately before
the commencement the
positive notice was
current; and (c) section 305 or 306 does not
apply. (2) The amended Act applies to the
person’s positive notice. Subdivision 3 Exemption notice
applications and exemption notices 308
Existing exemption notice application by new
relevant disqualified person or person charged with a
new disqualifying offence (1)
This
section applies if— (a) before the
commencement an
exemption notice
application was made about a person;
and (b) immediately before the commencement
the application has not been decided or withdrawn;
and (c) at the commencement—
(i) the person is a new relevant
disqualified person; or (ii) the
person is
charged with
a new disqualifying offence.
(2) The application is taken to be
withdrawn. Page 270 Current as at
[Not applicable]
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 309]
(3) The chief
executive must
give written
notice about
the withdrawal of
the application to
the person and
the funded non-government
service provider who made the application. Not
authorised —indicative only
309 Existing exemption notice application
if person is new disqualified person but not new relevant
disqualified person (1)
This
section applies if— (a) before the
commencement an
exemption notice
application was made about a person;
and (b) immediately before the commencement
the application had not been decided or withdrawn;
and (c) at the commencement the person is a
new disqualified person but not a new relevant disqualified
person. (2) At the
commencement the
chief executive
must decide
the application under the amended
Act. (3) However, if before the commencement
the chief executive had under section 82 cancelled a negative
exemption notice issued to the person, on the commencement
section 54(6)(a) does not apply to the chief executive making
the decision. (4) The chief executive may only act under
section 61(3) if the chief executive
has acted under
section 62 after
the commencement. 310
Other
existing exemption notice applications (1)
This
section applies if— (a) before the
commencement an
exemption notice
application was made about a person;
and (b) immediately before the commencement
the application had not been decided or withdrawn;
and (c) section 308 or 309 does not
apply. (2) At the
commencement the
chief executive
must decide
the application under the amended
Act. Current as at [Not applicable]
Page
271
Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 311]
(3) Also, the chief executive may only act
under section 61(3) if the chief
executive has
acted under
section 62 after
the commencement. Not
authorised —indicative
only 311 Current positive
exemption notice for person whose CCYPCG positive
notice is cancelled (1) This section applies if—
(a) before the
commencement a
person held
a positive exemption
notice; and (b) immediately before the commencement
the notice was current; and (c)
at the commencement the
person no
longer holds
a CCYPCG positive notice.
(2) At the commencement the person’s
positive exemption notice ceases to have effect under section
64. (3) Section 90 applies in relation to the
positive exemption notice. Note— 1
Section 90(2) requires the chief executive
to give notice to a person if the person’s positive exemption
notice has ceased to have effect under section
64. 2 Section 90(5) requires the person to
return their positive exemption notice to the
chief executive. (4) Also, if the person’s positive
exemption notice was suspended under section 88
immediately before the commencement, any application for
the cancellation of
the suspension under
section 89 that
has not been
decided or
withdrawn at
the commencement is taken to have been
withdrawn. (5) The chief
executive must
give written
notice about
the withdrawal of
the application under
subsection (4) to
the person and the funded non-government
service provider who made the application.
312 Other positive exemption
notices (1) This section applies if—
Page
272 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 313]
(a) before the
commencement a
person held
a positive exemption
notice; and (b) immediately before the commencement
the notice was current; and (c)
section 311 does not apply.
(2) At the
commencement the
amended Act
applies to
the positive exemption notice.
Subdivision 4 Existing
applications for cancellation or ending suspension
of
prescribed notices and exemption notices 313
Existing applications to cancel negative
notice or negative exemption notice
(1) This section applies if—
(a) before the commencement a person had
applied to the chief executive to cancel the person’s
negative notice or negative exemption notice under section 82;
and (b) immediately before the commencement,
the application had not been decided. (2)
At
the commencement— (a) if the person is a new relevant
disqualified person— (i) the application
is taken to be withdrawn; and (ii)
the
chief executive must give written notice about the withdrawal
of the application to the person; or (b)
if
the person is not a new relevant disqualified person—
the
chief executive must decide the application under the
amended Act. Current as at
[Not applicable] Page 273
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 314]
314 Existing application to end suspension
of positive notice for person other than new relevant
disqualified person (1) This section applies if—
(a) before the commencement a person had
applied to the chief executive
to cancel the
person’s suspended
positive notice under section 87; and
(b) immediately before the commencement
the application had not been decided; and
(c) at the commencement the person is not
a new relevant disqualified person. (2)
At the commencement the
chief executive
must decide
the application under the amended
Act. 315 Existing application to end suspension
of positive exemption notice for person other than new
relevant disqualified person (1)
This
section applies if— (a) before the commencement a person had
applied to the chief executive
to cancel the
person’s suspended
positive exemption notice under section 89;
and (b) immediately before the commencement
the application had not been decided; and
(c) at the commencement the person is not
a new relevant disqualified person. (2)
At the commencement the
chief executive
must decide
the application under the amended
Act. Subdivision 5 Eligibility
applications and eligibility declarations 316
Existing eligibility application
(1) This section applies if—
Page
274 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 317]
(a) before the
commencement a
person had
made an
eligibility application to
the chief executive
under section 99;
and (b) immediately before
the commencement the
person’s eligibility application had
not been decided
or withdrawn. (2)
At the commencement the
chief executive
must decide
the application under the amended
Act. Note— The chief
executive may issue an eligibility declaration if the person
has
been convicted of a disqualifying offence and is not a
relevant disqualified person. See section
101(1). 317 Current eligibility declaration for
new relevant disqualified person or person charged with
new disqualifying offence (1)
This
section applies to a person if— (a)
before the
commencement the
chief executive
had issued, or
was taken to
have issued,
the person an
eligibility declaration; and
(b) immediately before
the commencement the
person’s eligibility
declaration had not expired; and (c)
at
the commencement the person— (i)
is a
new relevant disqualified person; or (ii)
is
charged with a new disqualifying offence. (2)
At
the commencement the person’s eligibility declaration is
taken to have expired. Note—
If
the person also holds a positive notice, see sections 305 and
307. 318 Current eligibility declaration for
person convicted of new serious offence (1)
This
section applies to a person if— Current as at
[Not applicable] Page 275
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 319]
(a) before the
commencement the
chief executive
had issued, or
was taken to
have issued,
the person an
eligibility declaration; and
(b) immediately before
the commencement the
person’s eligibility
declaration had not expired; and (c)
before the commencement the person was
convicted of a new serious offence. (2)
At
the commencement— (a) the amended
Act applies to
the person’s eligibility declaration;
and (b) the person’s eligibility declaration
is taken to have been issued on the commencement.
(3) If, after the commencement, the chief
executive is to make a decision about the person under
section 54, and it is the first time
the chief executive
is to make
a decision under
that section
about the
person after
the commencement, section 54(6)(b)
does not apply to the chief executive making the
decision. 319 Other eligibility declarations
(1) This section applies to a person
if— (a) before the
commencement the
chief executive
had issued, or
was taken to
have issued,
the person an
eligibility declaration; and
(b) immediately before
the commencement the
person’s eligibility
declaration had not expired; and (c)
at
the commencement section 317 or 318 does not apply.
(2) At the
commencement the
amended Act
applies to
the person’s eligibility
declaration. 320 Existing application for reversal of
decision refusing an eligibility declaration (1)
This
section applies if— Page 276 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 321]
(a) before the
commencement a
person had
made an
application under section 107(2) to the
chief executive; and (b) immediately
before the commencement the application had not been
decided. (2) At the commencement the amended Act
applies and the chief executive may decide the application
under the amended Act. Subdivision 6 Reviews and
appeals 321 Undecided reviews and appeals by new
disqualified persons (1)
This
section applies if— (a) before the commencement, a
person— (i) applied, under section 109, for a
review of a part 5 reviewable decision; or (ii)
appealed, under the QCAT Act, against a
decision of the tribunal
relating to
a part 5
reviewable decision;
and (b) at the commencement—
(i) the application or appeal has not been
decided; and (ii) the person is a
new disqualified person. (2) The application
or appeal, and any proceeding in relation to the application
or appeal, must be dismissed— (a)
if a
proceeding in relation to the application or appeal is
before a court—by the court; or
(b) otherwise—by the tribunal, even if the
dismissal would be contrary to a direction of the Court of
Appeal. Current as at [Not applicable]
Page
277
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 322]
322 Review of part 5 reviewable decision
about new disqualified person (1)
This
section applies if— (a) before the commencement—
(i) the chief
executive makes
a part 5
reviewable decision about a
person; and (ii) the
person has
not applied for
a review of
the decision under section 109; and
(b) the person
is a new
disqualified person
at the commencement. (2)
At
the commencement, the amended Act applies. Note—
Under section 109, only a person who is not
a disqualified person may apply for a review of a part 5
reviewable decision. 323 Appeal by new disqualified person
against decision of tribunal on review of part 5 reviewable
decision (1) This section applies if—
(a) before the commencement, a person may
appeal under the QCAT Act against a decision of the
tribunal relating to a part 5 reviewable decision; and
(b) at the commencement—
(i) the time within which the person may
appeal under the QCAT Act has not passed; and
(ii) the person is a
new disqualified person. (2) Any
appeal by
the person against
the decision must
be dismissed— (a)
if a proceeding in
relation to
the appeal is
before a
court—by the court; or (b)
otherwise—by the tribunal, even if the
dismissal would be contrary to a direction of the Court of
Appeal. Page 278 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 324]
324 Existing appeal by chief executive
against decision of tribunal on review of part 5 reviewable
decision (1) This section applies if—
(a) before the commencement, the chief
executive appealed, under the QCAT Act, against a decision of
the tribunal relating to a part 5 reviewable decision
about a person; and (b) at the
commencement— (i) the appeal has not been decided;
and (ii) the person is a
new disqualified person. (2) The entity
hearing the appeal must apply the amended Act in
relation to the matter the subject of the
appeal. 325 Appeal by chief executive against
decision of tribunal on review of part 5 reviewable
decision (1) This section applies if—
(a) before the
commencement, the
chief executive
may appeal under
the QCAT Act
against a
decision of
the tribunal relating to a part 5
reviewable decision about a person;
and (b) at the commencement—
(i) the time
within which
the chief executive
may appeal under
the QCAT Act
(the appeal
period )
has
not passed; and (ii) the person is a
new disqualified person. (2) The
chief executive
may appeal against
the decision within
the
appeal period and the entity hearing the appeal must apply
the
amended Act in relation to the matter the subject of the
appeal. Current as at
[Not applicable] Page 279
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 326]
326 Existing reviews and appeals against
part 5 reviewable decisions by persons other than new
disqualified persons (1)
This
section applies if— (a) before the commencement—
(i) a person applied, under section 109,
for a review of a part 5 reviewable decision; or
(ii) the
chief executive
or another person
appealed, under
the QCAT Act,
against a
decision of
the tribunal relating
to a part
5 reviewable decision;
and (b) at the
commencement— (i) the review or appeal has not been
decided; and (ii) the
person about
whom the
part 5
reviewable decision
was made is
not a new
disqualified person.
(2) The entity
hearing the
review or
appeal must
apply the
amended Act in relation to the matter the
subject of the review or appeal. (3)
To
remove any doubt, it is declared that section 110 applies in
relation to the application for the
review. 327 Review of part 5 reviewable decision
about person other than new disqualified person
(1) This section applies if—
(a) before the commencement—
(i) the chief
executive makes
a part 5
reviewable decision about a
person; and (ii) the
person has
not applied for
a review of
the decision under section 109; and
(b) at the commencement—
Page
280 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 328]
(i) the period
within which
the person could
have applied
for a review
of the decision
under section 109
(the review period ) has not
passed; and (ii) the person is
not a new disqualified person. (2)
The person may
apply for
a review of
the decision under
section 109 within the review period.
Subdivision 7 Miscellaneous 328
Chief
executive acting on own initiative (1)
This
section applies if— (a) before the
commencement the
chief executive
had started, on
the chief executive’s own
initiative, to
exercise a power in relation to the
following— (i) a person; (ii)
an
eligibility application; (iii) a prescribed
notice; (iv) an exemption
notice; and (b) on the commencement the chief
executive may exercise the power
under the
amended Act
in relation to
the person, application or notice.
(2) The chief
executive may
exercise the
power under
the amended Act in relation to the person,
application or notice. 329 Disqualification
orders for acts done or omissions made before
commencement A court may make a disqualification order
under section 137 in relation to
a person convicted
of an offence
after the
commencement arising out of an act done or
omission made before the commencement. Current as at
[Not applicable] Page 281
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 330]
330 Effect of conviction or charge for new
disqualifying offence (1)
For applying section
97(1)(a) and schedule 8, definition relevant
disqualified person
, paragraph (a),
it is immaterial when the offence
mentioned in the provision was committed or
when the
person to
whom the
provision applies
was convicted. (2)
Section 86 applies in relation to a person
who holds a current positive notice
who is charged
with a
new disqualifying offence
even if
the charge, or
the acts or
omissions constituting the
alleged offence,
happened before
the commencement. (3)
Section 88 applies in relation to a person
who holds a current positive exemption
notice who
is charged with
a new disqualifying offence
even if
the charge, or
the acts or
omissions constituting the
alleged offence,
happened before
the
commencement. (4) Without limiting this division, in
applying the amended Act on and from the commencement, it is
immaterial— (a) when a
new disqualifying offence
or new serious
offence was committed; or
(b) when a
person was
convicted of
a new disqualifying offence or new
serious offence; or (c) when a charge for a new disqualifying
offence, or the acts or
omissions constituting the
alleged offence,
happened. Example—
An
offence may have been committed, and the person convicted of
the offence, before the commencement.
Page
282 Current as at [Not applicable]
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Division 8 Disability
Services Act 2006 Part 9 Repeal and transitional
provisions [s 331] Transitional
provision for Disability Services (Restrictive Practices)
and Other Legislation Amendment Act
2014 331 Notice about use
of restrictive practices (1) This section
applies if on the commencement of this section a
relevant service
provider is
using restrictive practices
in relation to an adult with an
intellectual or cognitive disability. (2)
Section 191 applies to the relevant service
provider as if the relevant service
provider was
considering using
restrictive practices in
relation to the adult on the commencement of this
section. Division 9
Transitional provisions for
Communities Legislation (Funding
Red
Tape Reduction) Amendment Act 2014 332
Definitions for div 9 In this
division— amending Act means the
Communities Legislation (Funding
Red
Tape Reduction) Amendment Act 2014 .
authorised officer
means a
person appointed
immediately before
the commencement as
an authorised officer
under previous section
125. commencement means the
commencement of the provision in which the term
is used. funding agreement see previous
section 56(1). interim manager
means a
person appointed
as interim manager under
previous section 169. Current as at [Not applicable]
Page
283
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 333]
previous , for a
provision of this Act, means the provision as in
force immediately before the commencement of
the amending Act, section 73. unamended
Act mean this Act as in force from time to
time before the commencement. 333
Funding agreements continue in force
(1) This section applies if a funding
agreement between the chief executive and a
funded non-government service provider was in force
immediately before the commencement. (2)
The
funding agreement continues in force despite the repeal,
under the amending Act, of provisions of
this Act relating to funding agreements.
(3) However, if the funding agreement
contains a term mentioned in previous
section 58(1)(j), on
and from the
commencement— (a)
the
term is of no effect; and (b) the agreement is
taken to provide that— (i) the funded
non-government service provider must comply
with the
Human Services
Quality Standards;
and (ii) recurrent
funding to
the funded non-government service
provider will
stop if
the service provider
does
not comply with the Human Services Quality Standards. (4)
Also, on and from the commencement, a term
of the funding agreement requiring
the funded non-government service
provider to
obtain or
maintain approval
as an approved
non-government service provider is of no
effect. (5) In this section— approved
non-government service
provider see
former section
16. Page 284 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 334]
Human Services
Quality Standards
means the
standards stated
in the document
called ‘Human
Services Quality
Standards’ published
on the department’s website
on the internet.
334 Obligation to enter agreement about
assistance continues (1)
This section
applies if,
immediately before
the commencement, a
non-government service
provider who
received funding
after giving
the written agreement
mentioned in previous section 56(4)(a) has
not complied with previous section 56(4)(b).
(2) The chief
executive must
stop the
funding if
the non-government service provider does
not enter into a funding agreement about
the funding within
the time stated
in the written
agreement given under previous section 56(4)(a).
335 Contraventions of funding agreement or
Act before commencement (1)
This
section applies if, before the commencement— (a)
a
funding agreement between the chief executive and a
funded non-government service
provider was
contravened; or (b)
a
provision of the unamended Act related to the funding
agreement mentioned in paragraph (a) was
contravened. (2) The unamended Act continues to apply
for the contravention as if the amending Act had not been
enacted. (3) Without limiting subsection
(2)— (a) an authorised officer
may exercise, or
continue to
exercise, powers under the unamended Act;
and (b) a magistrate may hear and decide, or
continue to hear and decide, an
application for
a warrant for
a place under previous
part 11, division 2, subdivision 2; and Current as at
[Not applicable] Page 285
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 336]
(c) the chief
executive may
give the
funded non-government service
provider a
compliance notice
under previous section 161; and
(d) if the
service provider
contravenes a
compliance notice—
(i) the service
provider may
be prosecuted for
an offence against previous section
161(6); or (ii) the chief
executive may suspend or cancel funding to
the service provider
under previous
section 161(8); and (e)
an interim manager
may be appointed
for the service
provider under previous part 12.
(4) In this section— authorised officer
means an
authorised officer
under the
Community Services Act 2007
. 336 Interim
managers (1) This section applies if—
(a) immediately before
the commencement, a
person was
appointed as
an interim manager
for a funded
non-government service provider; or
(b) an interim
manager is
appointed for
a funded non-government
service provider under section 335. (2)
The
interim manager may exercise, or continue to exercise, a
power under
the unamended Act
in relation to
the service provider.
(3) For the
purposes of
subsection (2), the
unamended Act
continues to apply to the interim manager’s
appointment as if the amending Act had not been
enacted. Page 286 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 337]
337 Confidentiality obligation continues
to apply to authorised officers and interim
managers (1) This section applies to a person who
is or has been either of the following under the unamended
Act— (a) an authorised officer;
(b) an interim manager.
(2) Previous section 222 continues to
apply to the person as if the amending Act had
not been enacted. 338 Reviews (1)
This
section applies to a decision of the chief executive under
this Act
if, before the
commencement, the
decision was
a reviewable decision.
(2) The unamended Act continues to apply
to the decision despite the enactment of the amending
Act. (3) Without limiting subsection
(2)— (a) an interested person for the review
decision made by the chief executive under previous section
211 may apply to QCAT for
a review of
the decision under
previous section 212;
and (b) QCAT may
hear and
decide, or
continue to
hear and
decide, an
application for
a review of
the review decision under
previous section 212. (4) In this
section— reviewable decision
means a
decision stated
in previous schedule
2. Current as at [Not applicable]
Page
287
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 339]
Division 10 Transitional
provisions for Disability Services and Other Legislation
Amendment Act 2016 339
Warrant may be executed (1)
This
section applies if, before 1 July 2019, a warrant is issued
under section 200M and in force but not
executed before that date. (2)
The
warrant continues in force according to its terms and may
be
executed after 30 June 2019. (3)
Part
6A continues to have effect for all matters relating to the
execution and enforcement of the
warrant. 340 Offences against pt 6A may continue to
be prosecuted (1) This section applies if a person
contravened— (a) a provision of part 6A before 1 July
2019; or (b) a provision
of part 6A
as it continued
to have effect
under section 339 after 30 June 2019.
(2) The person
may be prosecuted and
punished for
the contravention despite
the expiry of
part 6A
and, for
the purpose of the prosecution and
punishment, part 6A continues to have effect
despite its expiry. Division 11 Transitional
provisions for Disability Services and Other Legislation
(Worker Screening) Amendment Act
2018 341
Definitions for division In this
division— Page 288 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Part
9 Repeal and transitional provisions [s 342]
amending Act
means the
Disability Services
and Other Legislation
(Worker Screening) Amendment Act 2018. unamended
Act means this Act as in force immediately
before the commencement. 342
Prescribed notices or exemption notices
issued to sole traders before commencement
(1) This section
applies if,
before the
commencement, the
chief executive issued
a prescribed notice or an exemption notice to a sole
trader. (2) The prescribed notice or exemption
notice is taken to be, and always to
have been,
as valid as
if part 5,
as in force
immediately after
the commencement, had
been in
force on
the
day the notice was given. 343 Certification by
prescribed persons before commencement (1)
This
section applies if, before the commencement— (a)
a
sole trader applied under the unamended Act, section
52
or 59 for a prescribed notice or an exemption notice;
and (b) a prescribed
person certified that the prescribed person had
sighted documents, relating
to proof of
the sole trader’s
identity, prescribed by regulation. (2)
Despite the unamended Act—
(a) the chief
executive may,
whether before
of after the
commencement, accept
the certification by
the prescribed person
instead of
by the NDIS
non-government service
provider as
proof of
the sole trader’s
identity; and (b) the application, or
prescribed notice
or exemption notice
issued by
the chief executive
as a result
of the application (whether
issued before
or after the
Current as at [Not applicable]
Page
289
Not authorised —indicative
only Disability Services Act 2006
Part 9
Repeal and transitional provisions [s 344]
commencement), is
not affected only
because of
a change to the entity certifying the
documents. 344 Delayed application of particular
provisions (1) This section applies to a person who
is a sole trader if, before the
commencement— (a) the person was providing disability
services as an NDIS non-government service provider at a service
outlet of the service provider; and
(b) the person had applied for—
(i) a prescribed notice
under the
unamended Act,
section 52; or (ii)
a prescribed notice
under the
Working with
Children Act, section 199; and
(c) the application had not been
decided. (2) Sections 67A and 67B do not apply to
the person until the day that is 4 months after the
commencement. Page 290 Current as at
[Not applicable]
Not authorised —indicative only
Schedule 2 Disability
Services Act 2006 Schedule 2 Current serious
offences section 79 1
Classification of Computer Games and Images
Act 1995 Provision Relevant
heading of Act Qualification
relating to the provision of the Act 23
Demonstration of an objectionable
computer game before a minor 26(3)
Possession of objectionable
computer game 27(3) and
Making objectionable (4)
computer game 28
Obtaining minor for objectionable
computer game 2
Classification of Films Act 1991
Provision Relevant
heading of Act Qualification
relating to the provision of the Act 41(3)
Possession of objectionable
film 42(3) and
Making objectionable film
(4) 43 Procurement of
minor for objectionable film 3
Classification of Publications Act
1991 Current as at [Not applicable]
Page
291
Not authorised —indicative
only Disability Services Act 2006
Schedule 2 Provision
Relevant heading of Act
Qualification relating
to the provision of the Act
12 Sale etc. of prohibited
only
if an offender was publication or could have
been liable as mentioned in section 12,
penalty, paragraph (c) 13
Possession of prohibited only if an
offender was publication or could have
been liable as mentioned in section 13,
penalty, paragraph (c) 14
Possession of child abuse
publication 15
Exhibition or display of prohibited
publication 16 Leaving prohibited only if an
offender was publication in or on or could have
been liable public place as mentioned
in section 16, penalty, paragraph
(c) 17(1) Producing
prohibited publication only if an
offender was or could have been liable
as
mentioned in section 17(1), penalty, paragraph
(c) 17(2) Producing
prohibited publication only if an
offender was or could have been liable
as
mentioned in section 17(2), penalty, paragraph
(c) 17(3) and Producing
prohibited (4) publication Page 292
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 2 Provision
Relevant heading of Act
Qualification relating
to the provision of the Act
18 Procurement of minor for
RC
publication 20 Leaving prohibited only if an
offender was publication in or on or could have
been liable private premises as mentioned
in section 20, penalty, paragraph
(c) 4 Criminal Code Provision
of Relevant heading Act
Qualification relating
to the provision of the Act
210 Indecent treatment of
children under 16 211
Bestiality 213
Owner etc. permitting abuse of
children on premises 215
Carnal knowledge with or of children
under 16 216 Abuse of persons with an
impairment of the mind 217
Procuring young person etc. for carnal
knowledge 218 Procuring sexual acts by
coercion etc. 218A
Using internet etc. to procure children
under 16 218B Grooming
children under 16 Current as at [Not applicable]
Page
293
Not authorised —indicative
only Disability Services Act 2006
Schedule 2 Provision
of Relevant heading Act
Qualification relating
to the provision of the Act
219 Taking child for immoral
purposes 221
Conspiracy to defile 222
Incest 228
Obscene publications and only if an
offender was exhibitions or could have
been liable as mentioned in section 228(2)
or (3) 228A Involving child
in making child exploitation material
228B Making child
exploitation material 228C
Distributing child exploitation
material 228D Possessing
child exploitation material 228DA
Administering child exploitation
material website 228DB
Encouraging use of child exploitation
material website 228DC
Distributing information about avoiding
detection 229B Maintaining a
sexual relationship with a child
Page
294 Current as at [Not applicable]
Disability Services Act 2006
Schedule 2 Not
authorised —indicative only
Provision of Relevant
heading Act Qualification relating
to the provision of the Act
229G Procuring
engagement in only if an offender was prostitution or could have
been liable as mentioned in section
229G(2) 229H Knowingly
participating in provision of prostitution only if an
offender was or could have been liable
as
mentioned in section 229H(2) 229I
Persons found in places only if an
offender was reasonably suspected of or could have
been liable being used for as mentioned
in prostitution etc. section
229I(2) 229L Permitting young
person etc. to be at place used for
prostitution 300
Unlawful homicide only if the
unlawful killing is murder under section
302 306 Attempt to murder 309
Conspiring to murder 313
Killing unborn child 315
Disabling in order to commit
indictable offence 316
Stupefying in order to commit
indictable offence 317
Acts
intended to cause grievous bodily harm and other malicious
acts 320A Torture
Current as at [Not applicable]
Page
295
Not authorised —indicative
only Disability Services Act 2006
Schedule 2 Provision
of Relevant heading Act
Qualification relating
to the provision of the Act
322 Administering poison
only
if an offender was with intent to harm or could have
been liable for a penalty as mentioned
in section 322, penalty, paragraph
(a) 323A Female genital
mutilation 323B Removal of child
from State for female genital mutilation 324
Failure to supply necessaries 326
Endangering life of children by
exposure 349 Rape 350
Attempt to commit rape 351
Assault with intent to commit
rape 352 Sexual assaults 354
Kidnapping 354A
Kidnapping for ransom 363
Child-stealing 363A
Abduction of child under 16
364 Cruelty to children under
16 Page 296 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 2 Provision
of Relevant heading Act
Qualification relating
to the provision of the Act
409 Definition of robbery
only
if an offender was or could have been liable
as
mentioned in section 411(2) 419
Burglary only if an
offender was or could have been liable
as
mentioned in section 419(3)(b)(i) or (ii)
427 Unlawful entry of vehicle
only
if an offender was for committing indictable
or
could have been liable offence as mentioned
in section 427(2)(b)(i) or (ii)
5 Drugs Misuse Act 1986
Provision of Relevant
heading Act Qualification relating
to the provision of the Act
5 Trafficking in dangerous
drugs 6
Supplying dangerous only if the
offence is one drugs of aggravated
supply as mentioned in section
6(2) 8 Producing dangerous
only
if an offender was drugs or could have
been liable for a penalty as mentioned in
section 8, penalty, paragraph (a) or
(b) 9D Trafficking in
relevant substances or things Current as at
[Not applicable] Page 297
Not authorised —indicative
only Disability Services Act 2006
Schedule 2 Provision
of Relevant heading Act
Qualification relating
to the provision of the Act
6 Criminal Code (Cwlth)
Provision of Relevant
heading Act Qualification relating
to the provision of the Act
270.6 Sexual
servitude offences only if an
offender was or could have been liable
as
mentioned in section 270.8 270.7
Deceptive recruiting for sexual
services only if an offender was or could have
been liable as mentioned in section
270.8 272.8 Sexual
intercourse with child outside Australia 272.9
Sexual activity (other than sexual
intercourse) with child outside Australia
272.10 Aggravated
offence— child with mental impairment or
under care, supervision or authority of
defendant 272.11 Persistent
sexual abuse of child outside Australia
272.12 Sexual
intercourse with young person outside Australia—defendant in position of
trust or authority Page 298
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 2 Provision
of Relevant heading Act
Qualification relating
to the provision of the Act
272.13 Sexual activity
(other than sexual intercourse) with young
person outside Australia— defendant in
position of trust or authority 272.14
Procuring child to engage in sexual
activity outside Australia 272.15
“Grooming” child to engage in sexual
activity outside Australia 272.18
Benefiting from offence against this
Division 272.19 Encouraging
offence against this Division 272.20
Preparing for or planning
offence against this Division
273.5 Possessing,
controlling, producing, distributing or obtaining
child pornography material outside
Australia 273.6 Possessing,
controlling, producing, distributing or obtaining
child abuse material outside Australia
Current as at [Not applicable]
Page
299
Disability Services Act 2006
Schedule 2 Not
authorised —indicative
only Provision of Relevant
heading Act Qualification relating
to the provision of the Act
273.7 Aggravated
offence— offence involving conduct on 3 or
more occasions and 2 or more people
471.16 Using a postal
or similar service for child pornography
material 471.17 Possessing,
controlling, producing, supplying or obtaining
child pornography material for use through a
postal or similar service 471.19
Using a postal or similar
service for child abuse material
471.20 Possessing,
controlling, producing, supplying or obtaining child
abuse material for use through a postal or
similar service 471.22
Aggravated offence— offence
involving conduct on 3 or more occasions and 2
or more people 471.24
Using a postal or similar
service to procure persons under
16 471.25 Using a postal
or similar service to “groom” persons under
16 Page 300 Current as at
[Not applicable]
Disability Services Act 2006
Schedule 2 Not
authorised —indicative only
Provision of Relevant
heading Act Qualification relating
to the provision of the Act
471.26 Using a postal
or similar service to send indecent material to
person under 16 474.19 Using a carriage
service for child pornography material
474.20 Possessing,
controlling, producing, supplying or obtaining
child pornography material for use through a
carriage service 474.22
Using a carriage service for child abuse
material 474.23 Possessing,
controlling, producing, supplying or obtaining child
abuse material for use through a carriage
service 474.24A Aggravated
offence— offence involving conduct on 3 or
more occasions and 2 or more people
474.25A Using a carriage
service for sexual activity with person under
16years of age 474.25B Aggravated
offence— child with mental impairment or
under care, supervision or authority of
defendant Current as at [Not applicable]
Page
301
Not authorised —indicative
only Disability Services Act 2006
Schedule 2 Provision
of Relevant heading Act
Qualification relating
to the provision of the Act
474.26 Using a carriage
service to procure persons under 16 years of
age 474.27 Using a carriage
service to “groom” persons under 16 years
of age 474.27A Using a carriage
service to transmit indecent communication to
person under 16 years of age 7
Customs Act 1901 (Cwlth)
Provision of Relevant
heading Act Qualification relating
to the provision of the Act
233BAB Special offence
relating if the offence involved to tier 2
goods child pornography or child abuse
material Page 302 Current as at
[Not applicable]
Not authorised —indicative only
Schedule 3 Disability
Services Act 2006 Schedule 3 Repealed or
expired serious offences section 79
1 Criminal Code Provision
Relevant heading of Act
208 Unlawful sodomy 212
Defilement of Girls under
Twelve 214 Attempt to Abuse Girls
under Ten 218A
Using internet etc. to procure children
under 16 Qualification relating to the
provision of the Act as the provision
was in force from time to time before its
repeal by the Health and Other Legislation
Amendment Act 2016 as the provision
was in force from time to time before its
repeal by the Criminal Code, Evidence Act and Other
Acts Amendment Act 1989 as the provision
was in force from time to time before its
repeal by the Criminal Code, Evidence Act and Other
Acts Amendment Act 1989 as the provision
was in force from time to time before its
repeal by the Criminal Law (Child Exploitation
and Dangerous Drugs) Amendment Act
2013 Current as at [Not applicable]
Page
303
Not authorised —indicative
only Disability Services Act 2006
Schedule 3 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 220
Unlawful Detention with as the provision
was in Intent to Defile or in a force from time
to time Brothel before its
repeal by the Criminal Code, Evidence Act and Other
Acts Amendment Act 1989 223
Incest by adult female as the provision
was in force from time to time before its
repeal by the Criminal Law Amendment Act 1997
325 Endangering life or
as
the provision was in health of apprentices or
force from time to time servants
before its repeal by the Training and
Employment Act 2000 344
Aggravated assaults as the provision
was in force from 20 December 1946 to 30 June
1997 if the circumstance of aggravation
was
that the unlawful assault was an offence of a
sexual nature as defined in
the Criminal Law Amendment Act
1945 , section 2A a
a Criminal Law Amendment Act 1945
,
section 2A was inserted into the Criminal Law
Amendment Act 1945 by the Criminal Law
Amendment Act 1946 .
2 Crimes Act 1914 (Cwlth)
Page
304 Current as at [Not applicable]
Disability Services Act 2006
Schedule 3 Not
authorised —indicative only
Provision Relevant
heading of Act Qualification
relating to the provision of the Act 50BA
Sexual intercourse with child under
16 as the provision was in force from time
to time before its repeal by the Crimes
Legislation Amendment (Sexual Offences Against
Children) Act 2010 (Cwlth)
50BB Inducing child
under 16 to engage in sexual intercourse as the provision
was in force from time to time before its
repeal by the Crimes Legislation Amendment
(Sexual Offences Against Children)
Act
2010 (Cwlth) 50BC
Sexual conduct involving as the provision
was in child under 16 force from time
to time before its repeal by the Crimes
Legislation Amendment (Sexual Offences Against
Children) Act 2010 (Cwlth)
50BD Inducing child
under 16 to be involved in sexual conduct
as
the provision was in force from time to time
before its repeal by the Crimes
Legislation Amendment (Sexual Offences Against
Children) Act 2010 (Cwlth)
50DA Benefiting from
offence against this Part as the provision
was in force from time to time before its
repeal by the Crimes Legislation Amendment
(Sexual Offences Against Children)
Act
2010 (Cwlth) Current as at
[Not applicable] Page 305
Not authorised —indicative
only Disability Services Act 2006
Schedule 3 Provision
Relevant heading of Act
50DB Encouraging
offence against this Part Qualification
relating to the provision of the Act as the provision
was in force from time to time before its
repeal by the Crimes Legislation Amendment
(Sexual Offences Against Children)
Act
2010 (Cwlth) Page 306
Current as at [Not applicable]
Not authorised —indicative only
Schedule 4 Disability
Services Act 2006 Schedule 4 Current
disqualifying offences section 81 1
Classification of Computer Games and Images
Act 1995 Provision Relevant
heading of Act 23
Demonstration of an objectionable
computer game before a minor 26(3)
Possession of objectionable
computer game 27(3) and
Making objectionable (4)
computer game 28
Obtaining minor for objectionable
computer game Qualification relating
to the provision of the Act
2 Classification of Films Act
1991 Provision Relevant
heading of Act Qualification relating
to the provision of the Act
41(3) Possession
of objectionable film 42(3) and
Making objectionable film
(4) 43 Procurement of
minor for objectionable film 3
Classification of Publications Act
1991 Current as at [Not applicable]
Page
307
Not authorised —indicative
only Disability Services Act 2006
Schedule 4 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 12
Sale
etc. of prohibited only if an offender was or
publication could have been
liable as mentioned in section 12, penalty,
paragraph (c) 13 Possession of prohibited
only
if an offender was or publication could have been
liable as mentioned in section 13, penalty,
paragraph (c) 14 Possession of child
abuse publication 15
Exhibition or display of only if an
offender was or prohibited publication could have been
liable as mentioned in section 15, penalty,
paragraph (c) 16 Leaving prohibited only if an
offender was or publication in or on could have been
liable as public place mentioned in
section 16, penalty, paragraph (c) 17(1)
Producing prohibited publication only if an
offender was or could have been liable as
mentioned in section 17(1),
penalty, paragraph (c) 17(2)
Producing prohibited publication only if an
offender was or could have been liable as
mentioned in section 17(2),
penalty, paragraph (c) 17(3) and
Producing prohibited (4)
publication 18
Procurement of minor for RC
publication Page 308 Current as at
[Not applicable]
Provision Relevant
heading of Act 20
Leaving prohibited publication in
or on private premises Disability
Services Act 2006 Schedule 4 Qualification
relating to the provision of the Act only if an
offender was or could have been liable as
mentioned in section 20, penalty,
paragraph (c) Not authorised —indicative only
4 Criminal Code Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 210
Indecent treatment of children under
16 213 Owner etc. permitting
abuse of children on premises
215 Carnal knowledge with or
of
children under 16 216 Abuse of persons with an
impairment of the mind 217
Procuring young person etc. for carnal
knowledge 218 Procuring sexual acts by
if
the offence was coercion etc. committed
against a child 218A Using internet
etc. to procure children under 16
218B Grooming
children under 16 219 Taking child for
immoral purposes 221
Conspiracy to defile if the offence
was committed against a child
Current as at [Not applicable]
Page
309
Not authorised —indicative
only Disability Services Act 2006
Schedule 4 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 222
Incest if the offence
was committed against a child
228 Obscene publications and
only
if an offender was or exhibitions could have been
liable as mentioned in section 228(2)
or (3) 228A Involving child
in making child exploitation material
228B Making child
exploitation material 228C
Distributing child exploitation
material 228D Possessing
child exploitation material 228DA
Administering child exploitation
material website 228DB
Encouraging use of child exploitation
material website 228DC
Distributing information about avoiding
detection 229B Maintaining a
sexual relationship with a child
229G Procuring
engagement in only if an offender was or
prostitution could have been
liable as mentioned in section
229G(2) Page 310 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 4 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 229H
Knowingly participating in provision
of prostitution only if an
offender was or could have been liable as
mentioned in section
229H(2) 229I Persons found in
places only if an offender was or
reasonably suspected of could have been
liable as being used for mentioned
in prostitution etc. section
229I(2) 229L Permitting young
person etc. to be at place used for
prostitution 300
Unlawful homicide only if the
unlawful killing is murder under section 302 and
was committed against a child
349 Rape if the offence
was committed against a child
350 Attempt to commit rape
if
the offence was committed against a child
351 Assault with intent to
if
the offence was commit rape committed
against a child 352 Sexual assaults if the offence
was committed against a child
5 Criminal Code (Cwlth)
Provision Relevant
heading of Act Qualification
relating to the provision of the Act 270.6
Sexual servitude offences
only
if an offender was or could have been liable as
mentioned in section 270.8
Current as at [Not applicable]
Page
311
Not authorised —indicative
only Disability Services Act 2006
Schedule 4 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 270.7
Deceptive recruiting for only if an
offender was or sexual services could have been
liable as mentioned in section 270.8
272.8 Sexual
intercourse with child outside Australia 272.9
Sexual activity (other than sexual
intercourse) with child outside Australia
272.10 Aggravated
offence— child with mental impairment or
under care, supervision or authority of
defendant 272.11 Persistent
sexual abuse of child outside Australia 272.12
Sexual intercourse with young person
outside Australia— defendant in
position of trust or authority 272.13
Sexual activity (other than sexual
intercourse) with young person outside
Australia— defendant in position of trust or
authority 272.14 Procuring child
to engage in sexual activity outside
Australia Page 312
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 4 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 272.15
“Grooming” child to engage in sexual
activity outside Australia 272.18
Benefiting from offence against this
Division 272.19 Encouraging
offence against this Division 272.20
Preparing for or planning
offence against this Division
273.5 Possessing,
controlling, producing, distributing or
obtaining child pornography
material outside Australia 273.6
Possessing, controlling, producing,
distributing or obtaining child abuse material outside
Australia 273.7 Aggravated
offence— offence involving conduct
on 3
or more occasions and 2 or more people 471.16
Using a postal or similar
service for child pornography
material 471.17 Possessing,
controlling, producing, supplying or obtaining
child pornography material for use through a
postal or similar service Current as at
[Not applicable] Page 313
Disability Services Act 2006
Schedule 4 Not
authorised —indicative
only Provision Relevant
heading of Act Qualification
relating to the provision of the Act 471.19
Using a postal or similar
service for child abuse material
471.20 Possessing,
controlling, producing, supplying or obtaining child
abuse material for use through a
postal or similar service
471.22 Aggravated
offence— offence involving conduct
on 3
or more occasions and 2 or more people 471.24
Using a postal or similar
service to procure persons
under 16 471.25
Using a postal or similar
service to “groom” persons under
16 471.26 Using a postal
or similar service to send indecent material to
person under 16 474.19 Using a carriage
service for child pornography material
474.20 Possessing,
controlling, producing, supplying or obtaining
child pornography material for use through a
carriage service 474.22
Using a carriage service for child abuse
material Page 314 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 4 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 474.23
Possessing, controlling, producing,
supplying or obtaining child abuse material for use
through a carriage service 474.24A
Aggravated offence— offence
involving conduct on 3 or more occasions and 2 or more
people 474.25A Using a carriage
service for sexual activity with person under 16
years of age 474.25B Aggravated
offence— child with mental impairment or
under care, supervision or authority of
defendant 474.26 Using a carriage
service to procure persons under 16 years of
age 474.27 Using a carriage
service to “groom” persons under 16 years of
age 474.27A Using a carriage
service to transmit indecent communication to
person under 16 years of age 6
Customs Act 1991 (Cwlth)
Current as at [Not applicable]
Page
315
Disability Services Act 2006
Schedule 4 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 233BAB
Special offence relating to
if
the offence involved a tier 2 goods child
pornography or child abuse material Not
authorised —indicative
only Page 316 Current as at
[Not applicable]
Not authorised —indicative only
Schedule 5 Disability
Services Act 2006 Schedule 5 Repealed or
expired disqualifying offences section 81
1 Criminal Code Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 208
Unlawful sodomy as the provision
was in force from time to time before its
repeal by the Health and Other Legislation
Amendment Act 2016 for an
offence committed before 1 July 1997, only if
committed against a child or a person
with
an impairment of the mind 212
Defilement of Girls under
as
the provision was in Twelve force from time
to time before its repeal by the Criminal Code,
Evidence Act and Other Acts Amendment Act
1989 214 Attempt to Abuse Girls
as
the provision was in under Ten force from time
to time before its repeal by the Criminal Code,
Evidence Act and Other Acts Amendment Act
1989 Current as at [Not applicable]
Page
317
Not authorised —indicative
only Disability Services Act 2006
Schedule 5 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 218A
Using internet etc. to as the provision
was in procure children under 16
force from time to time before its
repeal by the Criminal Law (Child Exploitation
and Dangerous Drugs) Amendment Act
2013 220 Unlawful Detention with
as
the provision was in Intent to Defile or in a
force from time to time Brothel
before its repeal by the Criminal Code,
Evidence Act and Other Acts Amendment Act
1989 only if, at the time
of the offence, the person in relation to whom
the offence was committed was
a
child 223 Incest by adult female
as
the provision was in force from time to time
before its repeal by the Criminal Law
Amendment Act 1997 only if, at the
time of the offence, the person in
relation to whom the offence was
committed was a child Page 318
Current as at [Not applicable]
Not authorised —indicative only
Provision Relevant
heading of Act 344
Aggravated assaults Disability
Services Act 2006 Schedule 5 Qualification
relating to the provision of the Act as the provision
was in force from 20 December 1946 to 30 June
1997 if— (a) the circumstance of
aggravation was that the unlawful
assault was an offence of a sexual nature
as defined in the Criminal
Law Amendment Act 1945 ,
section 2A; and (b)
at
the time of the offence, the person in relation to whom
the offence was committed was a
child 2 Crimes Act 1914 (Cwlth)
Provision Relevant
heading of Act 50BA
Sexual intercourse with child under
16 50BB Inducing child
under 16 to engage in sexual intercourse Qualification
relating to the provision of the Act as the provision
was in force from time to time before its
repeal by the Crimes Legislation Amendment
(Sexual Offences Against Children)
Act
2010 (Cwlth) as the provision
was in force from time to time before its
repeal by the Crimes Legislation Amendment
(Sexual Offences Against Children)
Act
2010 (Cwlth) Current as at
[Not applicable] Page 319
Not authorised —indicative
only Disability Services Act 2006
Schedule 5 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 50BC
Sexual conduct involving as the provision
was in child under 16 force from time
to time before its repeal by the Crimes
Legislation Amendment (Sexual Offences Against
Children) Act 2010 (Cwlth)
50BD Inducing child
under 16 to be involved in sexual conduct
as
the provision was in force from time to time
before its repeal by the Crimes
Legislation Amendment (Sexual Offences Against
Children) Act 2010 (Cwlth)
50DA Benefiting from
offence against this Part as the provision
was in force from time to time before its
repeal by the Crimes Legislation Amendment
(Sexual Offences Against Children)
Act
2010 (Cwlth) 50DB
Encouraging offence against this
Part as the provision was in force from time
to time before its repeal by the Crimes
Legislation Amendment (Sexual Offences Against
Children) Act 2010 (Cwlth)
Page
320 Current as at [Not applicable]
Not authorised —indicative only
Schedule 6 Disability
Services Act 2006 Schedule 6 Offences that
may form basis of investigative information
section 109 1
Classification of Computer Games and Images
Act 1995 Provision Relevant
heading of Act Qualification
relating to the provision of the Act 23
Demonstration of an objectionable
computer game before a minor 28
Obtaining minor for objectionable
computer game 2
Classification of Films Act 1991
Provision Relevant
heading of Act 43
Procurement of minor for
objectionable film Qualification relating to the
provision of the Act 3
Classification of Publications Act
1991 Provision Relevant
heading of Act Qualification
relating to the provision of the Act 18
Procurement of minor for RC
publication 4 Criminal Code Current as at
[Not applicable] Page 321
Not authorised —indicative
only Disability Services Act 2006
Schedule 6 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 210
Indecent treatment of children under
16 213 Owner etc. permitting
abuse of children on premises
215 Carnal knowledge with or
of
children under 16 216 Abuse of persons with an
impairment of the mind 217
Procuring young person etc. for carnal
knowledge 218 Procuring sexual acts by
if
the offence was coercion etc. committed
against a child or a person with a disability
218B Grooming
children under 16 219 Taking child for
immoral purposes 221
Conspiracy to defile if the offence
was committed against a child
or a
person with a disability 222 Incest
if
the offence was committed against a child
or a
person with a disability 228A Involving child
in making child exploitation material
229B Maintaining a
sexual relationship with a child
Page
322 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 6 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 229G
Procuring engagement in only if an
offender was or prostitution could have been
liable as mentioned in section
229G(2) 229H Knowingly
participating in provision of prostitution only if an
offender was or could have been liable as
mentioned in section
229H(2) 229L Permitting young
person etc. to be at place used for
prostitution 300
Unlawful homicide only if the
unlawful killing is murder under section 302 and
was committed against a child
or a
person with a disability 349 Rape
if
the offence was committed against a child
or
person with a disability 350 Attempt to
commit rape if the offence was committed
against a child or a person with a disability
351 Assault with intent to
if
the offence was commit rape committed
against a child or a person with a disability
352 Sexual assaults if the offence
was committed against a child
or a
person with a disability 5 Criminal Code
(Cwlth) Current as at [Not applicable]
Page
323
Not authorised —indicative
only Disability Services Act 2006
Schedule 6 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 270.6
Sexual servitude offences
only
if an offender was or could have been liable as
mentioned in section 270.8
or
if the offence is committed against a person
with
a disability 270.7 Deceptive
recruiting for sexual services only if an
offender was or could have been liable as
mentioned in section 270.8
or
if the offence is committed against a person
with
a disability 272.8 Sexual
intercourse with child outside Australia 272.9
Sexual activity (other than sexual
intercourse) with child outside Australia
272.10 Aggravated
offence— child with mental impairment or
under care, supervision or authority of
defendant 272.11 Persistent
sexual abuse of child outside Australia
272.12 Sexual
intercourse with young person outside Australia— defendant in
position of trust or authority Page 324
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 6 Provision
Relevant heading of Act
Qualification relating to the
provision of the Act 272.13
Sexual activity (other than sexual
intercourse) with young person outside
Australia— defendant in position of trust or
authority 272.14 Procuring child
to engage in sexual activity
outside Australia 272.15
“Grooming” child to engage in sexual
activity outside Australia Current as at
[Not applicable] Page 325
Not authorised —indicative
only Disability Services Act 2006
Schedule 7 Schedule 7
Repealed or expired offences
that
may form basis of investigative information
section 109 Crimes Act
1914 (Cwlth) Provision
Relevant of Act
heading Qualification relating
to the provision
of the Act 50BA
Sexual intercourse
with child under 16 as the provision
was in force from time to time before its repeal by the
Crimes Legislation
Amendment (Sexual Offences Against Children) Act 2010
(Cwlth) 50BB
Inducing child under 16
to engage in sexual intercourse as the provision
was in force from time to time before its repeal by the
Crimes Legislation
Amendment (Sexual Offences Against Children) Act 2010
(Cwlth) 50BC
Sexual conduct involving
child under 16 as the provision
was in force from time to time before its repeal by the
Crimes Legislation
Amendment (Sexual Offences Against Children) Act 2010
(Cwlth) 50BD
Inducing child as the provision
was in force from time to under 16 to be time before its
repeal by the Crimes involved in
sexual Legislation Amendment (Sexual
Offences conduct Against
Children) Act 2010 (Cwlth) Page 326
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 7 Criminal
Code Provision Relevant
of
Code heading Qualification relating
to the provision
of the Act 208
Unlawful sodomy as the provision
was in force from time to time before its repeal by the
Health and Other
Legislation Amendment Act 2016 for an offence
committed before 1 July 1997, only if committed against a
child or a person with an impairment of the
mind Current as at [Not applicable]
Page
327
Disability Services Act 2006
Schedule 8 Schedule 8
Dictionary Not
authorised —indicative
only section 9 Page 328
administrator means
an administrator appointed
under the
Guardianship and Administration Act
2000 . adult with an intellectual or
cognitive disability , for part 6 and part 8,
division 2, see section 144. adult
with a
skills deficit
, for part
8, division 2,
see section 217. amended
Act , for part 9, division 7, see section
301. amending Act , for part 9,
division 5, see section 261. appropriately
qualified , for part 6, see section 144.
approved form means a form
approved by the chief executive under section
237. assessment , for part 6,
see section 144. authorised guardian
, for part
9, division 3,
see section 249(1). authorised officer
means an
authorised officer
appointed under the
Community Services Act , section
25. authorised psychiatrist , for part 6,
see section 144. carer means a person
of any age, who, without being paid, cares for
another person who needs ongoing support because
of a disability, but
does not
include a
volunteer for
an organisation. chemical
restraint , for part 6, see section 144.
chemical restraint (fixed dose)
,
for part 6, see section 144. chief executive
(health) , for part 6, division 7, subdivision
3, see section 196. chief
psychiatrist , for part 6, see section 144.
commencement —
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 8 (a)
for
part 9, division 2—see section 243; or (b)
for
part 9, division 3—see section 249(1); or (c)
for
part 9, division 5, subdivision 2—see section 262; or
(d) for part 9, division 5, subdivision
3—see section 269; or (e) for part 9,
division 5, subdivision 4—see section 279; or (f)
for
part 9, division 7—see section 301. community access
services , for part 6, see section 144.
complaints agency means any of the
following— (a) the ombudsman under the
Ombudsman Act 2001 ;
(b) the Crime and Corruption
Commission; (c) the Anti-Discrimination Commissioner under
the Anti-Discrimination Act 1991
; (d) the
health ombudsman
under the
Health Ombudsman
Act
2013 ; (e) the public
guardian. compliance period , for part 9,
division 3, see section 249(1). confidential information includes
information about
a person’s affairs but does not
include— (a) information already
publicly disclosed
unless further
disclosure of the information is prohibited
by law; or (b) statistical or other information that
could not reasonably be expected to result in the
identification of the person to whom the
information relates. consumer , of a funded
non-government service provider or an NDIS
non-government service provider, means a person with
a disability who
is provided with
disability services
by the service
provider. contain , for part 6,
see section 144. containment or
seclusion approval
, for part
6, see section
144. Current as at [Not applicable]
Page
329
Not authorised —indicative
only Disability Services Act 2006
Schedule 8 conviction means a finding
of guilt or the acceptance of a plea of guilty by a
court, whether or not a conviction is recorded. criminal
history , of a person, means— (a)
every conviction of
the person for
an offence, in
Queensland or
elsewhere, and
whether before
or after the commencement
of this Act; and (b) every charge made against the person
for an offence, in Queensland or
elsewhere, and
whether before
or after the commencement
of this Act. current —
(a) for a
prescribed notice—means current
under section 58;
or (b) for an
exemption notice—means current
under section
64. decision notice , for part 6,
see section 144. director of
forensic disability means
the director under
the Forensic Disability Act 2011
. disability see section
11. disability services see section
12. disqualification order means—
(a) an order under section 137; or
(b) an offender prohibition
disqualification order. disqualified person
see
section 97. disqualifying offence see section
48. electronic document means a document
of a type under the Acts Interpretation Act 1954
,
schedule 1, definition document ,
paragraph (c). eligibility
application see section 99(2). eligibility
declaration see section 99(1). engaged
, by
a funded non-government service provider or an NDIS
non-government service provider, see section 46.
Page
330 Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 8 engaged by the
department — (a) generally—see
section 45; or (b) for part 9, division 5, subdivision
2—see section 262. engaged person —
(a) for a
prescribed notice
application—see section
52(1); or (b) for an exemption
notice application—see section 59(1). exceptional case
means exceptional case
as mentioned in
section 54(4) or (11). executive
officer ,
of a corporation, means
any person, by
whatever name
called and
whether or
not the person
is a director of the
corporation, who is concerned or takes part in the management
of the corporation. exemption notice means a notice
issued under section 61. exemption notice
application means
an application for
an exemption notice under section
59. final offender prohibition order
means a final order under the
Child Protection (Offender
Reporting and
Offender Prohibition
Order) Act 2004 . final sexual offender order
means a division 3 order under
the Dangerous Prisoners (Sexual Offenders)
Act 2003 . forensic disability client
means a
forensic disability client
under the Forensic
Disability Act 2011. funded non-government service
provider see section 16. funded service
provider see section 14. GAA
,
for part 6, see section 144. general
power , see section 200S(1). guardian
means a
guardian appointed
under the
Guardianship and Administration Act
2000 . guardian for a restrictive practice
(general) matter , for part 6, see section
144. Current as at [Not applicable]
Page
331
Not authorised —indicative
only Disability Services Act 2006
Schedule 8 guardian
for a restrictive practice
matter ,
for part 6,
see section 144. guardian for a
restrictive practice (respite) matter , for part
6, see section 144. harm
,
for part 6, see section 144. health
professional , for part 6, division 7, subdivision 3,
see section 196. health
service chief
executive ,
for part 6,
division 7,
subdivision 3, see section 196.
help
requirement see section 200T(1). human rights
principle means the principle and rights stated
in
section 18. imprisonment order —
(a) means either of the following
orders— (i) an order
of a court
that convicts
a person for
an offence, if
the order includes
a penalty that
includes imprisonment for
the offence, whether
wholly or partially suspended;
(ii) an
intensive correction order
under the
Penalties and
Sentences Act
1992 or
an order of
another jurisdiction that
substantially corresponds to
an intensive correction order; but
(b) does not
include an
order of
imprisonment that
is imposed as a consequence of a breach
of a community service order or probation order within the
meaning of the Penalties and Sentences Act
1992 . indictable offence
includes an
indictable offence
dealt with
summarily, whether
or not the
Criminal Code,
section 659 applies to the
indictable offence. individual funding agreement
see
section 37. informal decision-maker , for part 6,
see section 144. information requirement see section
200W(3). Page 332 Current as at
[Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 8 interested
person , for a relevant decision for part 6,
division 6, see section 186. interim
sexual offender
order means
an interim detention
order or
interim supervision order
under the
Dangerous Prisoners
(Sexual Offenders) Act 2003 .
investigative information
,
about a person, see section 111(1). issue
,
for part 5, division 11, subdivision 1, see section 108.
least restrictive , for part 6,
see section 144. mechanical restraint , for part 6,
see section 144. minimum frequency for regulated
engagement means— (a)
at
least 8 consecutive days; or (b)
at
least once a week for each week during a period of 4
weeks; or (c)
at least once
a fortnight for
each fortnight
during a
period of 8 weeks; or (d)
at
least once a month for each month during a period of
6
months. model positive
behaviour support
plan ,
for part 6,
see section 144. multidisciplinary assessment
,
for part 6, see section 144. NDIS Act
means National
Disability Insurance
Scheme Act
2013 (Cwlth).
NDIS
non-government service provider see section
16A. negative exemption notice
see
section 61(2)(b). negative notice see section
54(2)(b). new disqualified person
, for part
9, division 7,
see section 301. new
disqualifying offence
, for part
9, division 7,
see section 301. new relevant
disqualified person , for part 9, division 7, see
section 301. Current as at
[Not applicable] Page 333
Disability Services Act 2006
Schedule 8 Not
authorised —indicative
only Page 334 new serious
offence , for part 9, division 7, see section
301. non-government service provider
see
section 15. notice means a written
notice. occupier , of a place,
includes the following— (a) if there is more
than 1 person who apparently occupies the place—any 1
of the persons; (b) any person at the place who is
apparently acting with the authority of a person who apparently
occupies the place; (c) if no-one
apparently occupies
the place—any person
who
is an owner of the place. offender prohibition disqualification order
means a
disqualification order
made under
the Child Protection (Offender
Reporting and
Offender Prohibition Order)
Act 2004 , section
13T. offender prohibition order
means an
offender prohibition order
under the
Child Protection (Offender
Reporting and
Offender Prohibition Order) Act 2004
. offender reporting
obligations means
reporting obligations under the
Child Protection (Offender Reporting and
Offender Prohibition Order) Act 2004
. parent , for part 4,
see section 37. part 5 reviewable decision
,
for part 5, division 11, subdivision 1, see section
108. participant has the meaning given by the
NDIS Act, section 9. participant’s plan means a plan for a
participant that is in effect under the NDIS Act, section
37. physical restraint , for part 6,
see section 144. place includes
premises and vacant land. plan, for a participant, has the
meaning given by the NDIS Act, section 9. police
commissioner means
the commissioner of
the police service.
Current as at [Not applicable]
Not authorised —indicative only
Disability Services Act 2006
Schedule 8 police
information , about a person, means the
following— (a) the person’s criminal history;
(b) investigative information about the
person; (c) information as to whether the person
is or has been— (i) a relevant disqualified person;
or (ii) named as the
respondent to an application for an offender
prohibition order; or (iii) the subject of
an application for a disqualification order or
offender prohibition disqualification order. police
service means the Queensland Police Service.
positive behaviour support plan
,
for part 6, see section 144. positive
exemption notice see section 61(2)(a). positive
notice see section 54(2)(a). positive notice
card means a document, in the form of a
card, issued to
a person who
is the holder
of a current
positive notice at or
about the time that the person is issued with the
positive notice, that includes the following
information— (a) the name of the person who is the
holder of the positive notice; (b)
the
date of birth of the person; (c)
a
registration number for the person; (d)
an
expiry date for the positive notice; (e)
the
signature, or an electronic version of the signature,
of
the person to whom the positive notice is issued.
premises includes—
(a) a building or other structure;
and (b) a part of a building or other
structure; and (c) a vehicle; and (d)
a
caravan. prescribed notice means a notice
issued under section 54(2). Current as at
[Not applicable] Page 335
Not authorised —indicative
only Disability Services Act 2006
Schedule 8 prescribed notice
application means
an application for
a prescribed notice under section
52. prescribed period , for part 5,
division 11, subdivision 1, see section
108. prescribed person means—
(a) a justice; or (b)
a commissioner for
declarations under
the Justices of
the Peace and
Commissioners for
Declarations Act
1991; or (c)
a
lawyer; or (d) a police officer. prescribed police
information ,
for part 9,
division 5,
subdivision 2, see section 262.
previous service
provider ,
for part 9,
division 3,
see section 249(1). private
sector health
service ,
for part 6,
division 7,
subdivision 3, see section 196.
public guardian means the public
guardian under the Public Guardian Act
2014 . reasonably believes
means believes
on grounds that
are reasonable in the
circumstances. reasonably suspects
means suspects
on grounds that
are reasonable in the
circumstances. registered health
practitioner means
a person registered under the Health
Practitioner Regulation National Law. regulated
engagement means— (a)
engagement by the department at a service
outlet of the department; or (b)
engagement by
a funded non-government service
provider or an NDIS non-government service
provider at a service outlet of the service
provider. relevant decision , for part 6,
division 6, see section 186. Page 336
Current as at [Not applicable]
Disability Services Act 2006
Schedule 8 Not
authorised —indicative only
relevant decision-maker (respite)
,
for part 6, see section 144. relevant
disability services see section 37. relevant
disqualified person means a person who— (a)
has
been convicted of a disqualifying offence for which
an
imprisonment order was or is imposed; or (b)
is
subject to— (i) offender reporting obligations;
or (ii) an offender
prohibition order; or (iii) a
disqualification order
or offender prohibition disqualification
order; or (iv) a sexual
offender order. relevant disqualified person decision
,
for part 5, division 11, subdivision 1, see section 108.
relevant person , for part 4,
see section 37. relevant review and appeal
information , for a decision about a person, means
the following information— (a) if
the reasons for
the decision do
not include investigative information—the circumstances in
which the person may
apply to the tribunal for a review of the decision under
part 5, division 11, subdivision 1; (b)
if the reasons
for the decision
include investigative information— (i)
the
right of the person to appeal, under section 113,
to a Magistrates Court
about the
police commissioner’s decision
that the
information is
investigative information; and
(ii) the
circumstances in which the person may apply to the tribunal
for a review of the decision under section
115; (c) the period
within which
the person must
apply to
the tribunal for the review or appeal to a
Magistrates Court; (d) how the person may apply for the
review to the tribunal or appeal to a Magistrates
Court; Current as at [Not applicable]
Page
337
Not authorised —indicative
only Disability Services Act 2006
Schedule 8 (e)
there is no review or appeal under this Act
in relation to the decision other than as mentioned in
paragraph (a) or (b). relevant service
provider , for part 6 and part 8, division 2,
see section 140. repealed
Act , for part 9, division 2, see section
243. respite/community access plan
,
for part 6, see section 144. respite
services , for part 6, see section 144.
restricting access , for part 6,
see section 144. restrictive practice see section
144. screening decision , in relation to
a person, means a decision about— (a)
whether a positive notice or a negative
notice should be issued to the person, including a decision
about— (i) whether a
person’s positive
notice should
be cancelled and substituted with a
negative notice or negative exemption notice; and
(ii) whether
a person’s negative
notice should
be cancelled and, if so, whether a
positive notice or positive exemption notice should be issued
to the person; and (iii)
whether a
person’s negative
notice should
be cancelled and substituted with a
positive notice or positive exemption notice; and
(iv) whether
a person’s suspended
positive notice
should be cancelled and a further prescribed
notice or an exemption notice issued to the person;
or (b) whether a
positive exemption
notice or
negative exemption
notice should
be issued to
the person, including a
decision about— (i) whether a
person’s positive
exemption notice
should be cancelled and substituted with a
negative exemption notice; and Page 338
Current as at [Not applicable]
Disability Services Act 2006
Schedule 8 Not
authorised —indicative only
(ii) whether
a person’s negative
exemption notice
should be cancelled and, if so, whether a
positive exemption notice
or positive notice
should be
issued to the person; and
(iii) whether
a person’s negative
exemption notice
should be cancelled and substituted with a
positive exemption notice or positive notice;
and (iv) whether a
person’s suspended positive exemption notice should be
cancelled and a further exemption notice or a
prescribed notice issued to the person; or
(c) whether an eligibility declaration
should be issued to the person. seclude
,
for part 6, see section 144. serious
offence see section 47. service delivery
principles means the principles stated in part
2,
division 2. service outlet means a place at
which disability services are provided.
service provider see section
13. sexual offender
order means
a division 3
order, interim
detention order
or interim supervision order
under the
Dangerous Prisoners (Sexual Offenders) Act
2003 . short term approval
,
for part 6, see section 144. sole
trader see section 44A. stage
2 commencement date
, for part
9, division 5,
subdivision 3, see section 269.
support network
see the Guardianship and
Administration Act 2000
,
schedule 4. temporary offender
prohibition order
means a
temporary order
under the
Child Protection (Offender
Reporting and
Offender Prohibition Order) Act 2004
. transitional period
,
for part 9, division 3, see section 249(1). Current as at
[Not applicable] Page 339
Not authorised —indicative
only Disability Services Act 2006
Schedule 8 tribunal
means QCAT. unamended
Act — (a) for part 9,
division 5, subdivision 2—see section 262; or (b)
for
part 9, division 5, subdivision 3—see section 269; or
(c) for part 9, division 5, subdivision
4—see section 279. Working with Children Act
means the Working with
Children (Risk Management and Screening) Act
2000 . WWC positive notice
means a positive notice issued under
the Working with Children Act
. Page 340 Current as at
[Not applicable]