QueenslandDisabilityServicesAct2006Current as at [Not applicable]Indicative reprint noteThis is anunofficialversion of a
reprint of this Act that incorporates all proposedamendments to the Act included in the
Disability Services and Other Legislation(WorkerScreening)AmendmentBill2018.Thisindicativereprinthasbeenprepared 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 theDisabilityServicesandOtherLegislation(WorkerScreening)AmendmentBill2018—20 March 2018.Detailed
information about indicative reprints is available on theInformationpageof the
Queensland legislation website.
Disability Services Act 2006Disability Services Act 2006Part
1 Preliminary[s 1]AnActtoprotectandpromotetherightsofpeoplewithadisability, and for other
purposesNotauthorised—indicativeonlyPart
1PreliminaryDivision 1Introduction1Short
titleThis Act may be cited as theDisability Services Act 2006.2CommencementThis Act
commences on a day to be fixed by proclamation.3Act
binds all persons(1)This Act binds all persons, including
the State and, so far asthelegislativepoweroftheParliamentpermits,theCommonwealth and the other
States.(2)NothinginthisActmakestheCommonwealthoraStateliable to be
prosecuted for an offence.4Contravention of
this Act does not create civil cause ofactionNo
provision of this Act creates a civil cause of action basedon a
contravention of the provision.Current as at
[Not applicable]Page 19
Notauthorised—indicativeonlyDisability Services Act 2006Part 1
Preliminary[s 5]5Act does not
affect other rights or remedies(1)This
Act, other than sections 189, 190, 218, 219, 251 to 253and
255, does not affect or limit a civil right or remedy thatexistsapartfromthisAct,whetheratcommonlaworotherwise.(2)Withoutlimitingsubsection (1),compliancewiththisActdoesnotnecessarilyshowthatacivilobligationthatexistsapartfromthisActhasbeensatisfiedorhasnotbeenbreached.Division 2Objects6Objects of ActThe objects of
this Act are—(a)toacknowledgetherightsofpeoplewithadisabilityincluding by
promoting their inclusion in the life of thecommunity
generally; and(b)to ensure that people with a
disability have choice andcontrol in accessing relevant
disability services; and(c)toensurethatdisabilityservicesfundedbythedepartmentaresafe,accountableandrespondtotheneeds of people with a disability;
and(d)to safeguard the rights of adults with
an intellectual orcognitivedisabilityincludingbyregulatingtheuseofrestrictivepracticesbyfundedserviceprovidersinrelation to those adults—(i)only where it is necessary to protect
a person fromharm; and(ii)with
the aim of reducing or eliminating the needfor use of the
restrictive practices.7How objects are
mainly achievedThe objects are mainly achieved by—Page
20Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
1 Preliminary[s 8](a)stating the human rights principle and
supporting rightsapplying to people with a disability;
and(b)stating the principles for service
delivery to people witha disability to be promoted by service
providers; and(c)regulating disability services funded
by the departmentto enable consumer choice and ensure the
quality, safety,responsiveness and accountability of the
services; and(d)helping to protect people with a
disability using servicesfundedbythedepartmentfromabuse,neglectandexploitation; and(e)stating requirements for when funded service
providersmay use restrictive practices in relation to
adults with anintellectual or cognitive disability.8Finite resources availableInadministeringthisAct,regardmustbehadtothefollowing—(a)theStatehasfiniteresourcesavailabletoprovideservices to
people with a disability;(b)there is a need
to distribute the resources fairly havingregard to the
State’s priorities.Division 3Interpretation9DefinitionsThe dictionary
in schedule 8 defines particular words used inthis Act.10Notes in textA note in the
text of this Act is part of the Act.Current as at
[Not applicable]Page 21
Notauthorised—indicativeonlyDisability Services Act 2006Part 1
Preliminary[s 11]11What
is adisability(1)Adisabilityis a person’s
condition that—(a)is attributable to—(i)an intellectual, psychiatric,
cognitive, neurological,sensory or physical impairment;
or(ii)acombinationofimpairmentsmentionedinsubparagraph (i); and(b)results in—(i)a
substantial reduction of the person’s capacity forcommunication,socialinteraction,learning,mobility or self care or management;
and(ii)the person
needing support.(2)Forsubsection
(1),theimpairmentmayresultfromanacquired 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 episodicnature.12What aredisability
servicesDisabilityservices,
for people with adisability, means 1 ormore of the
following—(a)accommodation support services;(b)respite services;(c)community support services;(d)community access;(e)advocacyorinformationservicesorservicesthatprovide alternative forms of
communication;(f)research, training or development
services;(g)another service prescribed by
regulation.Page 22Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
1 Preliminary[s 13]13Meaning ofservice
provider(1)Aservice
provideris a person providing services for
peoplewith 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 peoplewith a disability.(3)Theserviceprovidermayprovidetheserviceswiththeintention of making a profit.14Meaning offunded service
provider(1)Afunded service
provideris—(a)aserviceproviderthatreceivesfundsfromthedepartment to provide disability
services; or(b)aserviceproviderthatprovidesdisabilityservicesprescribedbyregulationtoaparticipantundertheparticipant’s plan.(2)Afundedserviceproviderincludesthedepartmenttotheextent it provides disability
services.(3)However, a funded service provider
does not include—(a)anotherdepartmentreceivingfundsfromthedepartment; or(b)anotherdepartmentprovidingdisabilityservicesprescribedbyregulationtoaparticipantundertheparticipant’s plan.15Meaning ofnon-government
service provider(1)Anon-governmentserviceproviderisaserviceprovider,other than the State, providing disability
services.(2)Anon-governmentserviceprovidermaybealocalgovernment.Current as at
[Not applicable]Page 23
Notauthorised—indicativeonlyDisability Services Act 2006Part 2
Disability rights[s 16]16Meaning offunded
non-government service provider(1)Afundednon-governmentserviceproviderisanon-governmentserviceproviderreceivingrecurrentorone-offfundsfromthedepartmenttoprovidedisabilityservices.(2)It is immaterial whether other funds
or resources are also usedby the non-government service provider
to provide disabilityservices.16AMeaning ofNDIS
non-government service providerAnNDISnon-governmentserviceproviderisanon-governmentserviceproviderthatprovidesdisabilityservicesprescribedbyregulationtoaparticipantundertheparticipant’s plan.Part
2Disability rightsDivision 1Human rights principle17Persons encouraged to have regard to human
rightsprinciplePersonsareencouragedtohaveregardtothehumanrightsprinciple in
matters relating to people with a disability.18Principle that people with a disability have
the samehuman rights as others(1)People with a disability have the same human
rights as othermembersofsocietyandshouldbeempoweredtoexercisetheir
rights.(2)People with a disability have the
right to—(a)respect for their human worth and
dignity as individuals;andPage 24Current as at [Not applicable]
Disability Services Act 2006Part
2 Disability rights[s 18]Notauthorised—indicativeonly(b)realisetheirindividualcapacitiesforphysical,social,emotional,cultural,religiousandintellectualdevelopment;
and(c)live lives free from abuse, neglect or
exploitation; and(d)participateactivelyindecisionsaffectingtheirlives,includingthedevelopmentofdisabilitypolicies,programs and services; and(e)recognitionoftheirindividualautonomyandindependence, including the freedom to
exercise choiceand have control of their lives.(3)When using disability services people
with a disability havethe right to—(a)servicessupportingtheirachievingqualityoflifeinawaythatsupportstheirfamilyunitandtheirfullparticipation in society; and(b)receiveservicesinawaythatresultsintheminimumrestriction of their rights and
opportunities; and(c)receive services in a way that
respects the confidentialityof their
information; and(d)receive services in a safe, accessible
built environmentappropriate to their needs; and(e)pursuegrievancesaboutserviceswithoutfearoftheservicesbeingdiscontinuedorrecriminationfromservice providers; and(f)supporttoenablethemtopursuegrievancesaboutservices; and(g)support,andaccesstoinformation,toenablethemtoparticipate in decisions affecting
their lives.(4)People with a disability have the
right to receive services, andinformationnecessarytosupportrights,inwaysthatareappropriatehavingregardtotheirdisabilitiesandculturalbackgrounds.(5)Subsections (2), (3) and (4) do not limit
subsection (1).Current as at [Not applicable]Page
25
Disability Services Act 2006Part 2
Disability rights[s 19]Division 2Service delivery principlesNotauthorised—indicativeonly19Service delivery
principles to be promoted by serviceproviders(1)This division sets out the principles
that service providers areencouragedtoapplyandpromoteinthedevelopmentandimplementation of services for people with a
disability.(2)Forsubsection
(1),theapplicationandpromotionoftheprinciples is encouraged to the extent
they reasonably apply toa service provider.20Focus on the development of the
individualServicesshouldbedesignedandimplementedsothattheirfocus is on developing the individual and on
enhancing theindividual’s opportunity to establish a
quality life.21Participation in planning and
operation of services(1)Services should
be designed and implemented so that peoplewithadisabilityareencouraged,andable,toparticipatecontinually in
the planning and operation of the services theyreceive.(2)Services provided to people with a
disability should provideopportunities for consultation in
relation to the developmentof major policy
changes.22Focus on a lifestyle the same as other
people andappropriate for ageServices should
be designed and implemented to ensure thattheconditionsofeverydaylifeofpeoplewithadisabilityare—(a)the same as, or as close as possible
to, the conditions ofeveryday life valued by the general
community; and(b)appropriate to their chronological
age.Page 26Current as at
[Not applicable]
Disability Services Act 2006Part
2 Disability rights[s 23]23Coordination and integration of services
with generalservicesServices should
be designed and implemented as part of localcoordinatedservicesystemsandintegratedwithservicesgenerally
available to members of the community.Notauthorised—indicativeonly24Services to be tailored to meet
individual needs andgoals(1)Services should be tailored to meet the
individual needs andgoals of people with a
disability.(2)Toberesponsivetotheneedsandgoalsofpeoplewithadisability,innovationandflexibilityareencouragedwhendesigning services.25People with a disability experiencing
additional barriersServicesshouldbedesignedandimplementedtomeettheneedsofpeoplewithadisabilitywhomayexperienceadditional
barriers—(a)because they are Aborigines or Torres
Strait Islanders;or(b)becauseoftheirage,genderorculturallyorlinguistically diverse backgrounds;
or(c)because of their rural or remote
location.26Promotion of competency, positive
image andself-esteemServices should
be designed and implemented to—(a)promote recognition of the competence of
people with adisability; and(b)promoteapositiveimageofpeoplewithadisability;and(c)enhance the self-esteem of people with
a disability.Current as at [Not applicable]Page
27
Disability Services Act 2006Part 2
Disability rights[s 27]27Inclusion in the communityServices should be designed and implemented
to promote theinclusionofpeoplewithadisabilityinthelifeofthecommunity.Notauthorised—indicativeonly28No single service
provider to exercise control over life ofperson with
disabilityServices should be designed and implemented
to ensure thatno single service provider exercises control
over all or mostaspects of the life of a person with a
disability.29Consideration for others involved with
people with adisabilityServices should
be designed and implemented to—(a)havesufficientregardtotheneedsoffamilies,carersand
advocates of people with a disability; and(b)recognise the demands on the families of
people with adisability; and(c)take
into account the implications for, and demands on,the
families of people with a disability.30Service providers to make information
available(1)Serviceprovidersshouldmakeavailableinformationthatallows the quality of their services to be
judged.(2)The information should be available to
the people using theservices,theirfamilies,carersandadvocates,peoplegivingfinancialassistancefortheservicesandthecommunitygenerally.31Raising and resolving grievancesServices should be designed and implemented
to ensure thatappropriate ways exist for people with a
disability and theirPage 28Current as at
[Not applicable]
Disability Services Act 2006Part
3 Complaints about the delivery of disability services by funded
service providers[s 32]advocatestoraisegrievancesaboutservicesandhavethemresolved.Notauthorised—indicativeonly32Access to advocacy supportServicesshouldbedesignedandimplementedtoensurepeople with a
disability have access to necessary independentadvocacysupportsotheycanparticipateadequatelyindecision-making about the services they
receive.Part 3Complaints about
the deliveryof disability services by fundedservice providers33Complaints by consumers(1)The
following may make a complaint to the chief executiveabout the delivery of disability services by
a funded serviceprovider—(a)a
consumer;(b)a family member, carer or advocate of
a consumer;(c)another person on behalf of a
consumer.(2)Thechiefexecutivemustmaintainasystemthatdealseffectively with
complaints received.34Chief executive may refer matters to
complaints agencyThe chief executive may—(a)liaise with a complaints agency about
matters relating topeople with a disability; and(b)refermattersrelatingtopeoplewithadisabilitytoacomplaints agency; and(c)enterintoanarrangementwithacomplaintsagencyaimed at avoiding inappropriate duplication
of activities.Current as at [Not applicable]Page
29
Notauthorised—indicativeonlyDisability Services Act 2006Part 4
Funding to people with a disability[s 35]35Complaints agency to inform chief
executive aboutactions taken for complaint(1)This section applies if—(a)the chief executive refers a matter
about a person with adisability to a complaints agency;
and(b)thechiefexecutive,bynoticetotheagency,asksforinformationaboutthewayinwhichtheagencyisdealing or has dealt with the matter.(2)The agency must inform the chief
executive about any actiontakenfordealingwiththematteror,ifitisresolved,theresolution of the matter.(3)Subsection (2) applies despite any
express provision in an Actestablishing a
complaints agency that makes it an offence foranyone involved
with administration of the Act to disclose theinformation.Part 4Funding to people with adisability36Purpose of pt 4The purpose of
this part is to enable people with a disability toreceive funding to obtain relevant
disability services.37Definitions for pt 4In
this part—individualfundingagreementmeansanindividualfundingagreement made under this part.parent, of a child
with a disability, includes—(a)apersonwhoexercisesparentalresponsibilityforthechild,otherthanapersonstandingintheplaceofaparent of a
child on a temporary basis; andPage 30Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
4 Funding to people with a disability[s 38](b)foranAboriginalchild—apersonwho,underAboriginal
tradition, is regarded as a parent of the child;and(c)for a Torres
Strait Islander child—a person who, underIsland custom,
is regarded as a parent of the child.relevantdisabilityservices,forapersonwithadisability,meansdisabilityservices,andcareandsupportassociatedwith the
person’s disability.relevant personmeans—(a)for an adult with a disability—(i)apersonnominatedbytheadulttodealwithmatters under this part on behalf of the
adult; or(ii)a guardian or an
administrator for the adult; or(iii)anattorneyappointedbytheadultunderanenduringpowerofattorneyunderthePowersofAttorney Act 1998; or(iv)amemberoftheadult’ssupportnetwork,otherthan
a paid carer for the adult within the meaningof theGuardianship and Administration Act
2000;or(b)for
a child with a disability—a parent of the child.38Approval for funding(1)The Minister may approve funding
to—(a)a person with a disability, to enable
the person to obtainrelevant disability services;
or(b)a relevant person for a person with a
disability, to enablethe relevant person to obtain relevant
disability servicesfor the person with a disability.(2)IftheMinisterapprovesfundingtoapersonmentionedinsubsection (1), the funding can not be
provided to the personunlessthepersonhasenteredintoanindividualfundingagreement under section 39 in relation to
the funding.Current as at [Not applicable]Page
31
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 39]39Individual funding agreement(1)If the Minister approves funding to a
person under section 38,thepersonmayenterintoanindividualfundingagreementwith the chief
executive for the funding.(2)The individual
funding agreement must—(a)includethetermsandconditionsthechiefexecutiveconsiders appropriate; and(b)state the relevant disability services
to be obtained withthe funding.Part 5Screening of particular personsengaged by department orparticular
funded serviceprovidersDivision 1Preliminary40Main
purpose of pt 5The main purpose of this part is to enable
the chief executivetoobtainthecriminalhistoryof,andrelatedinformationabout, persons
engaged or to be engaged at a service outlet bythe department,
a funded non-government service provider oran NDIS
non-government service provider.41Safety of people with a disability to be
paramountconsiderationThe paramount
consideration in making a decision under thispart is the
right of people with a disability to live lives freefrom
abuse, neglect or exploitation.Page 32Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 42]42This part does not apply to persons
engaged to providedisability services to childrenThis
part does not apply in relation to persons engaged or tobeengagedbythedepartment,afundednon-governmentservice provider
or an NDIS non-government service providerto provide
disability services only to children.Note—For
employment screening of persons engaged or to be engaged by
thedepartment or a funded non-government
service provider to providedisabilityservicestochildren,seetheWorkingwithChildrenAct,chapter 8.43This
part does not apply to registered healthpractitionersThispartdoesnotapplytotheengagementofaregisteredhealth
practitioner to the extent the engagement relates to thehealthpractitioner’sfunctionsasaregisteredhealthpractitioner.44This
part applies despite the Criminal Law (Rehabilitationof
Offenders) Act 1986This part applies to a person despite
anything in theCriminalLaw
(Rehabilitation of Offenders) Act 1986.Division 2Interpretation44AMeaning of sole traderAsole
traderis an individual who—(a)is
an NDIS non-government service provider; and(b)inprovidingdisabilityservicesasanNDISnon-government service provider, provides
the disabilityservices personally.Current as at
[Not applicable]Page 33
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 45]45Persons engaged by the department at a
service outletEachofthefollowingpersonsataserviceoutletofthedepartmentisengagedbythedepartmentattheserviceoutlet—(a)a public service employee in the
department;(b)apersoncontractedbythechiefexecutivetoprovidedisability
services for the department;(c)members of committees established under
section 222;(d)a person working in the department as
a volunteer or asa student on work experience.46Persons engaged by a funded
non-government serviceprovider or an NDIS non-government
service provider ata service outlet(1)For
this part, a funded non-government service provider or anNDIS
non-government service provider is engaging a personat a
service outlet of the service provider if the provider has
anagreement with the person for the person to
carry out work atthe outlet.(2)Without limiting subsection (1), each of the
following personsataserviceoutletofafundednon-governmentserviceprovideroranNDISnon-governmentserviceproviderisengaged by the service provider—(a)an employee of the service provider
employed under acontract of service;(b)a
volunteer of the service provider;(c)apersonemployedbytheserviceproviderunderacontract for services;(d)a member of a board, management
committee or othergoverning body of the service
provider;(e)an executive officer of the service
provider;(f)a student on work experience with the
service provider.Page 34Current as at
[Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 46]Notauthorised—indicativeonly(3)Also, for this part, an NDIS
non-government service providerwhoisasoletraderistakentobeengagedbytheserviceprovider to
carry out work at a service outlet of the serviceprovider if the sole trader carries out, or
is to carry out, thework 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 thework; and(c)whether the agreement provides for the
person to carryout work on 1 occasion or on an ongoing
basis, whetherregularly or irregularly.(5)Also, for this section, the nature of
the work is immaterial.(6)However,thefollowingarenotengagedbyafundednon-governmentserviceprovideroranNDISnon-government
service provider—(a)a consumer of the service provider
even if the consumercarriesoutworkataserviceoutletoftheserviceprovider;(b)a
tradesperson who—(i)from time to time performs work at a
service outletof the service provider; and(ii)isnotanemployeeoftheserviceprovideremployed under a
contract of service.(7)Also, a
volunteer is not engaged by a funded non-governmentservice provider or an NDIS non-government
service providerif—(a)the volunteer is
a relative of a person with a disabilitywho is receiving
disability services at a service outlet ofthe service
provider; and(b)the volunteer is at the service outlet
only to help with thecare of the person.(8)In this section—Current as at
[Not applicable]Page 35
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 47]cousinmeans a first
cousin.parent, of a person,
includes—(a)in any case—the spouse of a parent of
the person; and(b)foranAboriginalperson—apersonwho,underAboriginaltradition,isregardedasaparentoftheperson; and(c)for
a Torres Strait Islander—a person who, under Islandcustom, is regarded as a parent of the
person.relative, of a person
with a disability—(a)meanstheperson’sparent,grandparent,greatgrandparent, brother, sister, uncle, aunt,
niece, nephewor cousin; and(b)for
an Aboriginal person—includes a person who, underAboriginal tradition, is regarded as a
relative mentionedin paragraph (a); and(c)foraTorresStraitIslander—includesapersonwho,under Island custom, is regarded as a
relative mentionedin paragraph (a); and(d)for
a person with a parent who is not a natural parent—includes anyone who would be a relative
mentioned inparagraph (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.47What is aserious
offence(1)Aserious
offenceis—(a)an offence
against a provision of an Act mentioned inschedule 2 or 3,
column 1, subject to any qualificationrelating to the
provision mentioned opposite in column3; or(b)an offence of counselling or procuring
the commissionof an offence of a kind mentioned in
paragraph (a); orPage 36Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 48](c)an offence of attempting, or of
conspiring, to commit anoffence of a kind mentioned in
paragraph (a); or(d)anoffencethathas,asanelement,anintentiontocommit an offence of a kind mentioned in
paragraph (a);or(e)anoffencethat,atthetimeitwascommitted,wasanoffence of a kind mentioned in
paragraph (a); or(f)anotheroffencethatisareportableoffenceundertheChildProtection(OffenderReportingandOffenderProhibitionOrder)Act2004thatisnototherwiseaserious offence under this Act;
or(g)an offence under a law of another
jurisdiction that, if ithadbeencommittedinQueensland,wouldhaveconstitutedanoffencementionedinparagraphs(a)to(f).Note—Column 2 in schedules 2 and 3 is included
for information purposesonly and states a section heading for
the provision mentioned oppositein column
1.(2)For this section, it is immaterial if
a provision mentioned inschedule 2 or 3, column 1, for an Act
has been amended fromtime to time or that the provision was
previously numberedwith a different number.48What
is adisqualifying offence(1)Adisqualifying offenceis—(a)an offence
against a provision of an Act mentioned inschedule 4 or 5,
column 1, subject to any qualificationrelating to the
provision mentioned opposite in column3; or(b)an offence of counselling or procuring
the commissionof an offence of a kind mentioned in
paragraph (a); or(c)an offence of attempting, or of
conspiring, to commit anoffence of a kind mentioned in
paragraph (a); orCurrent as at [Not applicable]Page
37
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 49](d)anoffencethathas,asanelement,anintentiontocommit an offence of a kind mentioned in
paragraph (a);or(e)anoffencethat,atthetimeitwascommittedwasanoffence of a
kind mentioned in paragraph (a); or(f)an
offence under a law of another jurisdiction that, if ithadbeencommittedinQueensland,wouldhaveconstitutedanoffencementionedinparagraphs(a)to(e).Note—Column 2 in schedules 4 and 5 is included
for information purposesonly and states a section heading for
the provision mentioned oppositein column
1.(2)For this section, it is immaterial if
a provision mentioned inschedule 4 or 5, column 1, for an Act
has been amended fromtime to time or that the provision was
previously numberedwith a different number.Division 3Risk
management strategies49Risk management
strategies about persons engaged byfunded
non-government service providers or NDISnon-government
service providers(1)Thissectionappliestoafundednon-governmentserviceprovideroranNDISnon-governmentserviceproviderwhoengages a person at a service outlet of the
service provider.(2)For each year, the funded
non-government service provider orNDISnon-governmentserviceprovidermustdevelopandimplementawrittenstrategy(ariskmanagementstrategy)for persons engaged by the service
provider.Maximum penalty—(a)for
an individual guilty under chapter 2 of the CriminalCode
of an offence—20 penalty units; orPage 38Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 50](b)forafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider—100penaltyunits.(3)The
purpose of a risk management strategy is to implementengagementpracticesandproceduresinrelationtopeoplewith a
disability to—(a)promote their wellbeing; and(b)protect them from abuse, neglect or
exploitation.(4)Withoutlimitingsubsection (3),aregulationmayprescribethemattersthataretobeincludedinariskmanagementstrategy.Division 4Screening of
persons engaged bythe department at a service outlet50Undertaking screening of persons
engaged bydepartment at a service outlet(1)This section applies in relation to a
person engaged or to beengagedbythedepartmentataserviceoutletofthedepartment.Note—See—•thePublicServiceAct2008fortheengagementofthedepartment’s employees generally;
and•theWorkingwithChildrenActfortheengagementofthedepartment’semployeesinregulatedemploymentwithinthemeaning of that Act.(2)The chief executive may ask the person
for written consent forthe chief executive to undertake
screening of the person underthis
part.(3)Subsection (2) applies even if the
person is a public serviceemployee at the time the person is
engaged or is to be engagedby the
department at a service outlet of the department.Current as at [Not applicable]Page
39
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 51](4)If the person does not give the
consent, or withdraws his orher consent, the
chief executive must ensure the person is notengagedbythedepartmentataserviceoutletofthedepartment.(5)If
the person gives the consent, the chief executive may—(a)ifthepersondoesnotholdaWWCpositivenotice—undertake screening of the person under this
part, andissue a prescribed notice to theperson,asifthechiefexecutive were deciding a prescribed notice
applicationabout the person; or(b)if
the person holds a WWC positive notice—undertakescreeningofthepersonunderthispart,andissueanexemption notice to the person, as if the
chief executivewere deciding an exemption notice
application about theperson.(6)The
person’s consent to screening may be withdrawn undersection 132(2), (3), (4) or (6) as
if—(a)forapersonwhodoesnotholdaWWCpositivenotice—a
prescribed notice application has been madeabout the
person; or(b)forapersonwhoholdsaWWCpositivenotice—anexemption notice application has been made
about theperson.Division 5Issue of prescribed notices forfunded non-government serviceproviders and NDISnon-government
service providers51Division does not apply to holders of
WWC positivenoticeThis division
does not apply in relation to the engagement of aperson who holds a WWC positive
notice.Page 40Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 52]Note—See division 6
in relation to the engagement of a person who holds aWWC
positive notice.52Application for prescribed
notice(1)Afundednon-governmentserviceprovideroranNDISnon-governmentserviceproviderwhoproposestostartengaging,orcontinueengaging,aperson(theengagedperson) at
a service outlet of the service provider, may applytothechiefexecutiveforaprescribednoticeabouttheengaged person.(2)The
application must be—(a)in the approved
form; and(b)signed by, or on behalf of, the funded
non-governmentserviceproviderorNDISnon-governmentserviceprovider; and(c)signedbytheengagedperson,unlesstheengagedperson 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)certificationbythefollowingentitythattheentityhassighteddocuments,relatingtoproofoftheengagedperson’s
identity, prescribed by regulation—(i)foranapplicationbyafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider,otherthanasoletrader—theservice
provider;(ii)for an
application by a sole trader—a prescribedperson;
and(c)theengagedperson’sconsenttoscreeningunderthispart; andCurrent as at [Not applicable]Page
41
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 52](d)a declaration by the engaged person
that he or she is nota disqualified person.(4)On receiving the application, the
chief executive may ask thefundednon-governmentserviceprovider,NDISnon-governmentserviceproviderorengagedpersonforfurtherinformationthatthechiefexecutivereasonablyconsiders
necessary to establish the engaged person’s identity.(5)Ifafundednon-governmentserviceprovideroranNDISnon-governmentserviceproviderasksapersontosignanapplication under subsection (1) about the
person, the serviceprovidermustwarnthepersonthatitisanoffenceforadisqualifiedpersontosigntheapplicationasanengagedperson.Maximum penalty—10 penalty units.(6)For an application under subsection
(1)—(a)theengagedpersonisliabletopaythefundednon-governmentserviceproviderorNDISnon-government
service provider the fee mentioned insubsection
(2)(d); and(b)if the service provider pays the fee,
the amount of thefeeisadebtpayablebytheengagedpersontotheservice provider.(7)Subsection (6) applies subject to—(a)awrittenagreemententeredintobetweenthefundednon-governmentserviceproviderorNDISnon-governmentserviceproviderandtheengagedperson;
or(b)an industrial instrument under
theIndustrialRelationsAct
2016; or(c)anotherdocumentthatregulateswagesandconditionsofemploymentandisenforceableunderanyofthefollowing—(i)theFair Work Act 2009(Cwlth);Page
42Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 53](ii)theFairWork(TransitionalProvisionsandConsequential Amendments) Act 2009(Cwlth);(iii)therepealedWorkplaceRelationsAct1996(Cwlth).(8)Subsections (5) to (7) do not apply to
a sole trader.53Notice of change of engagement, or
name and contactdetails in prescribed notice
application(1)This section applies if a prescribed
notice application is madeaboutanengagedpersonandanyofthefollowing(eacharelevantchange)happensbeforethechiefexecutivehasissued a prescribed notice to the
engaged person in relation tothe
application—(a)the engaged person’s name or contact
details, as statedin the application, change;(b)theengagedperson’sengagement,asstatedintheapplication, ends.(2)The
engaged person must give notice, in the approved form, tothe
chief executive of the relevant change within 14 days afterthe
relevant change happens.Maximum penalty—10 penalty
units.(3)The approved form mentioned in
subsection (2) must providefor an engaged
person to give notice withdrawing the person’sconsent to
screening under this part.54Decision on
application(1)This section applies if a prescribed
notice application is madeabout an engaged person.(2)Thechiefexecutivemustdecidetheapplicationbyissuingeither of the
following unless the application is withdrawn—(a)anoticedeclaringtheapplicationfortheprescribednotice is
approved (apositive notice);Current as at [Not applicable]Page
43
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 54]Notauthorised—indicativeonly(b)anoticedeclaringtheapplicationfortheprescribednotice is
refused (anegative notice).(3)Subjecttosubsection (4),thechiefexecutivemustissueapositive notice to the engaged person
if the chief executive—(a)isnotawareofanypoliceinformationabouttheengaged person; or(b)is
not aware of a conviction of the engaged person forany
offence but is aware that there is 1 or more of thefollowing about the engaged person—(i)investigative information;(ii)a charge for an
offence other than a disqualifyingoffence;(iii)a charge for a
disqualifying offence that has beendealt with other
than by a conviction; orNote for subparagraph (iii)—Seesections 86and132(6)inrelationtochargesfordisqualifying offences that have not been
dealt with.(c)is aware of a conviction of the
engaged person for anoffence other than a serious
offence.(4)The chief executive is required to
issue a positive notice undersubsection
(3)(b) or (c) unless the chief executive is satisfied itisanexceptionalcaseinwhichitwouldnotbeinthebestinterests of
people with a disability for the chief executive toissue a positive notice.(5)If
the chief executive is satisfied under subsection (4) that it
isan exceptional case, the chief executive
must issue a negativenotice.(6)Subjecttosubsection (8),thechiefexecutivemustissueapositive notice to the engaged person
if the chief executive—(a)has, under
section 82, cancelled a negative notice issuedto the engaged
person; or(b)hasissuedaneligibilitydeclarationtotheengagedperson and the
eligibility declaration has not expired.Page 44Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 54]Notauthorised—indicativeonly(7)Thechiefexecutivemustissueanegativenoticetotheengaged person
if the chief executive is aware the person is arelevantdisqualifiedperson,otherthanonlybecausetheperson is subject to either or both of
the following—(a)a temporary offender prohibition
order;(b)an interim sexual offender
order.(8)Subjecttosubsection (11),thechiefexecutivemustissueanegativenoticetoanengagedpersontowhomsubsection
(6)(a) or (b) applies if the chief executive is awareofanypoliceinformationabouttheperson,otherthaninformation
known to the chief executive at the time of takingthe
action mentioned in the subsection.(9)Subjecttosubsection (11),thechiefexecutivemustissueanegative notice to the engaged person
if the chief executive isaware the person—(a)is a
relevant disqualified person because the person issubjecttoatemporaryoffenderprohibitionorderorinterim sexual offender order;
or(b)has been a relevant disqualified
person at any time but isnolongerarelevantdisqualifiedperson(otherthanaperson who was a relevant disqualified
person by reasonof a conviction, sentence or order that was
set aside onappeal); or(c)has
been convicted of a serious offence.(10)Subjecttosubsection (11),thechiefexecutivemustissueanegative notice to the engaged person
if the chief executive isaware the person has been convicted of
a serious offence.(11)Thechiefexecutiveisrequiredtoissueanegativenoticeunder subsection (8), (9) or (10) unless the
chief executive issatisfied it is an exceptional case in which
it would not harmthebestinterestsofpeoplewithadisabilityforthechiefexecutive to
issue a positive notice.(12)If the chief
executive is satisfied under subsection (11) that itisanexceptionalcase,thechiefexecutivemustissueapositive notice.Current as at
[Not applicable]Page 45
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 55]55Decision-making under s 54 in relation
to discretionarymatters(1)This
section applies if the chief executive is deciding whetheror
not there is an exceptional case for a person.(2)Ifthechiefexecutiveisawarethatapersonhasbeenconvicted of, or
charged with, an offence, the chief executivemust have regard
to the following—(a)in relation to the commission, or
alleged commission, ofan 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 tohave been
committed; and(iv)thenatureoftheoffenceanditsrelevancetoengagement that involves people with a
disability;and(v)in the case of a
conviction—the penalty imposedbythecourtandifitdecidednottoimposeanimprisonment order for the offence, or
decided notto make a disqualification order under
section 137,the court’s reasons for its decision;(b)anyinformationaboutthepersongiventothechiefexecutive under section 118 or 119;(c)a report, if any, about the person’s
mental health given tothe chief executive under section
126;(d)anyinformationaboutthepersongiventothechiefexecutive under section 128 or 129;(e)anythingelserelatingtothecommission,orallegedcommission,oftheoffencethatthechiefexecutivereasonably considers to be relevant to the
assessment ofthe engaged person.Page 46Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 56](3)Ifthechiefexecutiveisawareofinvestigativeinformationabout a person,
the chief executive must have regard to thefollowing—(a)whentheactsoromissionsconstitutingtheallegedoffencetowhichtheinvestigativeinformationrelateswere
committed;(b)anything else relating to the
commission of the acts oromissions that the chief executive
reasonably considersrelevant to the assessment of the
engaged person.56Actions of chief executive after
making decision onapplication(1)After making a decision about a prescribed
notice application,thechiefexecutivemustissueaprescribednoticetotheengaged
person.(2)Iftheprescribednoticeisanegativenotice,theprescribednoticemustbeaccompaniedbyanoticestatingthefollowing—(a)thereasonsforthechiefexecutive’sdecisionontheapplication;(b)the
relevant review and appeal information.(3)Thenoticemustalsoinclude acopyofpart5,division11,subdivision 1.(4)After the chief executive issues the
prescribed notice to theengaged person under this section, the
chief executive mustgive notice to the funded
non-government service provider orNDISnon-governmentserviceproviderstatingwhethertheengaged person was given a positive notice
or negative notice.(5)Subsection(4)doesnotapplyinrelationtoanNDISnon-government
service provider who is a sole trader.(6)Within 14 days after a prescribed notice is
issued under thissectiontoanengagedpersonwhopreviouslyheldanotherprescribed
notice, or an exemption notice, the engaged personmust
give the chief executive—Current as at [Not applicable]Page
47
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 57](a)thepreviouslyheldprescribednoticeorexemptionnotice;
and(b)iftheengagedpersonpreviouslyheldaprescribednoticethatwasapositivenotice—thepositivenoticecard previously
held by the engaged person.Maximum penalty
for subsection (6)—10 penalty units.57Chief
executive to invite submissions from engagedperson about
particular information(1)This section
applies if, for a prescribed notice application, thechiefexecutivemustdecidewhetherornotthereisanexceptional case for a person.(2)If the chief executive proposes to
decide the application byissuinganegativenotice,thechiefexecutivemustgivetheengaged person a notice—(a)stating the police information about
the engaged personthat 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 thechief executive should not issue a
negative notice.(3)The stated time must be reasonable
and, in any case, at least 7days after the
chief executive gives the notice to the engagedperson.(4)Beforedecidingtheapplication,thechiefexecutivemustconsideranysubmissionreceivedfromtheengagedpersonwithin the stated time.58Currency of prescribed notice and positive
notice card(1)A negative notice remains current
until it is cancelled underdivision
8.(2)A positive notice remains current for
3 years after it is issued,unless it is
earlier cancelled under division 8.Page 48Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 59](3)Apositivenoticecardrelatingtoapositivenoticeremainscurrent for the
same period as the positive notice.Notauthorised—indicativeonlyDivision 6Issue of
exemption notices forfunded non-government serviceproviders and NDISnon-government
service providers59Application for exemption
notice(1)Afundednon-governmentserviceprovideroranNDISnon-governmentserviceproviderwhoproposestostartengaging, or
continue engaging, a person who holds a WWCpositive notice
(theengaged person) at a service
outlet of theserviceprovider,mayapplytothechiefexecutiveforanexemption 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-governmentserviceproviderorNDISnon-governmentserviceprovider; and(c)signedbytheengagedperson,unlesstheengagedperson is a sole
trader.(3)The approved form must include
provision for—(a)identifying information about the
engaged person; and(b)certificationbythefollowingentitythattheentityhassighteddocuments,relatingtoproofoftheengagedperson’s
identity, prescribed by regulation—(i)foranapplicationbyafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider,otherthanasoletrader—theservice
provider;(ii)for an
application by a sole trader—a prescribedperson;
andCurrent as at [Not applicable]Page
49
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 60](c)a declaration by the engaged person
that—(i)he or she holds a WWC positive notice;
and(ii)hisorherWWCpositivenoticehasnotbeensuspended under the Working with Children
Act;and(d)theengagedperson’sconsenttoscreeningunderthispart.(4)On receiving the application, the
chief executive may ask thefundednon-governmentserviceprovider,NDISnon-governmentserviceproviderorengagedpersonforfurtherinformationthatthechiefexecutivereasonablyconsiders
necessary to establish the engaged person’s identity.60Notice of change of engagement, or
name and contactdetails in exemption notice
application(1)Thissectionappliesifanexemptionnoticeapplicationismade
about an engaged person and any of the following (eacharelevantchange)happensbeforethechiefexecutivehasissued an exemption notice to the
engaged person in relationto the application—(a)the engaged person’s name or contact
details, as statedin the application, change;(b)theengagedperson’sengagement,asstatedintheapplication, ends.(2)The
engaged person must give notice, in the approved form, tothe
chief executive of the relevant change within 14 days afterthe
relevant change happens.Maximum penalty—10 penalty
units.(3)The approved form mentioned in
subsection (2) must providefor an engaged
person to give notice withdrawing the person’sconsent to
screening under this part.Page 50Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 61]61Decision on application(1)Thissectionappliesifanexemptionnoticeapplicationismade
about an engaged person.(2)Thechiefexecutivemustdecidetheapplicationbyissuingeither of the
following unless the application is withdrawn—(a)anoticedeclaringtheapplicationfortheexemptionnotice is
approved (apositive exemption notice);(b)anoticedeclaringtheapplicationfortheexemptionnotice is
refused (anegative exemption notice).(3)The chief
executive must issue a positive exemption notice tothe
engaged person if—(a)thechiefexecutiveisnotawareofanypoliceinformation
about the engaged person; and(b)the
chief executive—(i)has,undersection 62,beenadvisedthattheengaged person is the holder of a WWC
positivenoticewhoseWWCpositivenoticeisnotsuspended under
the Working with Children Act;and(ii)hasnot,undersection 62,beenadvisedtoundertake further screening of the engaged
personunder this part.Note—If a
person’s WWC positive notice is suspended under the Workingwith
Children Act after the application is made, the person’s consent
toemployment screening may be withdrawn under
section 132(7).(4)Ifsubsection
(3)doesnotapply,thechiefexecutivemustdecide the
application in the way the chief executive would berequired to decide the application if it
were a prescribed noticeapplication.(5)For
subsection (4), sections 54(3) to (12), 55 and 57 apply inrelation to making the decision as
if—Current as at [Not applicable]Page
51
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 62](a)areferenceinthesectionstoaprescribednoticeapplicationwereareferencetoanexemptionnoticeapplication; and(b)a
reference in the sections to issuing a positive noticewere
a reference to issuing a positive exemption notice;and(c)a reference in
the sections to issuing a negative noticewere a reference
to issuing a negative exemption notice.62Obtaining advice from chief executive
(employmentscreening)(1)Thissectionappliesifanexemptionnoticeapplicationismade
about a person who claims to be the holder of a WWCpositive notice.(2)For
deciding the application, the chief executive may ask thechiefexecutive(employmentscreening)toadvisethechiefexecutive—(a)whetherornotthepersonistheholderofaWWCpositive notice and, if so, the expiry date
of the WWCpositive notice; and(b)whether or not the person’s WWC positive
notice hasbeen suspended under the Working with
Children Act;and(c)if the person is
the holder of a WWC positive notice—whetherthechiefexecutivemayneedtoundertakefurther
screening of the person under this part.(3)For
subsection (2), the chief executive’s request may includethe
following information—(a)theperson’snameandanyothernamethatthechiefexecutive
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 WWCpositive notice the person holds or claims
to hold.Page 52Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 63](4)Thechiefexecutive(employmentscreening)mustcomplywith the
request.(5)However—(a)thechiefexecutive(employmentscreening)maygiveadviceundersubsection
(2)(c)onlyifthechiefexecutive(employmentscreening)isawareofpoliceinformation
about the person; and(b)if paragraph (a)
applies, the advice must be that the chiefexecutive may
need to undertake further screening of theperson under
this part.(6)If the chief executive (employment
screening) gives the chiefexecutive advice under subsection
(2)(c), the advice must beaccompaniedbyanoticestatingthatnoadverseinferenceabouttheperson’scriminalhistoryorsuitabilityforengagement,orcontinuedengagement,inregulatedengagement may
be drawn by the fact the advice was given.(7)In
this section—chiefexecutive(employmentscreening)meansthechiefexecutiveofthedepartmentinwhichtheWorkingwithChildren Act is administered.63Actions of chief executive after
making decision onapplication(1)Aftermakingadecisionaboutanexemptionnoticeapplication,thechiefexecutivemustissueanexemptionnotice to the
engaged person.(2)Iftheexemptionnoticeisanegativeexemptionnotice,theexemption notice must be accompanied
by a notice stating thefollowing—(a)thereasonsforthechiefexecutive’sdecisionontheapplication;(b)the
relevant review and appeal information.(3)Thenoticemustalsoinclude acopyofpart5,division11,subdivision 1.Current as at
[Not applicable]Page 53
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 64](4)After the chief executive issues the
exemption notice to theengaged person under this section, the
chief executive mustgive notice to the funded
non-government service provider orNDISnon-governmentserviceproviderstatingwhethertheengagedpersonwasgivenapositiveexemptionnoticeornegative exemption notice.(5)Subsection(4)doesnotapplyinrelationtoanNDISnon-government
service provider who is a sole trader.(6)Within 14 days after an exemption notice is
issued under thissectiontoanengagedpersonwhopreviouslyheldanotherexemption notice
or a prescribed notice, the engaged personmust give the
chief executive—(a)thepreviouslyheldexemptionnoticeorprescribednotice;
and(b)iftheengagedpersonpreviouslyheldaprescribednoticethatwasapositivenotice—thepositivenoticecard previously
held by the engaged person.Maximum penalty
for subsection (6)—10 penalty units.64Currency of exemption notice(1)Anegativeexemptionnoticeremainscurrentuntilitiscancelled under division 8.(2)A positive exemption notice remains
current while its holderholdsaWWCpositivenotice,unlessitisearliercancelledunder division 8.Page 54Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 65]Division 7Obligations and
offences relating toprescribed notices and
exemptionnoticesNotauthorised—indicativeonlySubdivision 1Engagement of
persons by fundednon-government service provider orNDIS
non-government serviceprovider65Starting engagement of certain regular
engaged personsother than volunteers(1)This
section applies in relation to a person if—(a)the
person is not engaged by a funded non-governmentserviceprovideroranNDISnon-governmentserviceprovider at a service outlet of the service
provider buthas previously been engaged by the service
provider at aservice outlet of the service provider;
and(b)it is less than 1 year since the
person was last engagedby the service provider at a service
outlet of the serviceprovider; and(c)after considering any agreement relating to
a proposedengagement of the person and the person’s
engagementduring the period when the person was last
engaged bytheserviceproviderataserviceoutletoftheserviceprovider,theserviceproviderreasonablyexpectsthatthepersonislikelytocarryoutworkaspartoftheproposedengagementfortheminimumfrequencyforregulated engagement; and(d)undertheproposedengagement,thepersonistobeengagedbytheserviceproviderotherthanasavolunteer.(2)Thefundednon-governmentserviceproviderorNDISnon-government
service provider must not engage the personat a service
outlet of the service provider unless—Current as at
[Not applicable]Page 55
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 66](a)thepersonhasacurrentpositivenoticeorcurrentpositive
exemption notice and the service provider hasnotified, in the
approved form, the chief executive thatthe service
provider is proposing to engage the person ata service outlet
of the service provider; or(b)the
service provider has applied for a prescribed noticeorexemptionnotice,orafurtherprescribednoticeorexemption notice, about the
person.Maximum penalty—(a)for
an individual guilty under chapter 2 of the CriminalCode
of an offence—50 penalty units; or(b)forafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider—250penaltyunits.(3)Theapprovedformforsubsection (2)(a)mustincludeprovision
for—(a)identifying information about the
person; and(b)certificationbythefundednon-governmentserviceprovider or NDIS non-government service
provider thatthe service provider has sighted the
documents, relatingtoproofoftheperson’sidentity,prescribedunderaregulation.(4)This
section does not apply to a sole trader.66Starting engagement of new engaged persons
other thanvolunteers(1)This
section applies in relation to a person if—(a)the
person is not engaged by a funded non-governmentserviceprovideroranNDISnon-governmentserviceprovider at a service outlet of the service
provider; and(b)a funded non-government service
provider or an NDISnon-governmentserviceproviderproposestoengagethe person at a
service outlet of the service provider; andPage 56Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 66]Notauthorised—indicativeonly(c)after considering any agreement
relating to the proposedengagement,theserviceproviderreasonablyexpectsthat
the person is likely to carry out work as part of theproposedengagementfortheminimumfrequencyforregulated engagement; and(d)undertheproposedengagement,thepersonistobeengagedbytheserviceproviderotherthanasavolunteer.(2)Thefundednon-governmentserviceproviderorNDISnon-government
service provider must not engage the personat a service
outlet of the service provider unless—(a)thepersonhasacurrentpositivenoticeorcurrentpositive
exemption notice and the service provider hasnotified, in the
approved form, the chief executive thatthe service
provider is proposing to engage the person ata service outlet
of the service provider; or(b)the
service provider has applied for a prescribed noticeorexemptionnotice,orafurtherprescribednoticeorexemption notice, about the
person.Maximum penalty—(a)for
an individual guilty under chapter 2 of the CriminalCode
of an offence—50 penalty units; or(b)forafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider—250penaltyunits.(3)Theapprovedformforsubsection (2)(a)mustincludeprovision
for—(a)identifying information about the
person; and(b)certificationbythefundednon-governmentserviceprovider or NDIS non-government service
provider thatthe service provider has sighted the
documents, relatingtoproofoftheperson’sidentity,prescribedunderaregulation.(4)This
section does not apply to a sole trader.Current as at
[Not applicable]Page 57
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 67]67Continuing engagement of persons other
than volunteers(1)This section applies in relation to a
person if—(a)thepersonisengagedbyafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider at a service outlet of the service
provider otherthan as a volunteer; and(b)afterconsideringanyagreementrelatingtotheengagementandthehoursortimesthatthepersonpreviously
carried out work for the service provider at aserviceoutletoftheserviceprovider,theserviceprovider
reasonably expects that the person is likely tocarryoutworkaspartoftheengagementfortheminimum frequency for regulated
engagement; and(c)thepersondoesnothaveacurrentpositivenoticeorcurrent positive exemption notice.(2)Thefundednon-governmentserviceproviderorNDISnon-government
service provider must not continue to engagethe person at a
service outlet of the service provider unless theserviceproviderhasappliedforaprescribednoticeorexemption notice, or a further
prescribed notice or exemptionnotice, about
the person.Maximum penalty—(a)for
an individual guilty under chapter 2 of the CriminalCode
of an offence—50 penalty units; or(b)forafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider—250penaltyunits.(3)This
section does not apply to a sole trader.67ARestriction on sole trader providing
disability servicesApersonwhoisasoletradermustnotprovidedisabilityservicesasanNDISnon-governmentserviceproviderataservice outlet of the service provider
unless—Page 58Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 67B](a)thepersonhasacurrentpositivenoticeorcurrentpositive
exemption notice; or(b)thepersonholdsaWWCpositivenoticethatisnotsuspended under
the Working with Children Act and theperson has
applied for an exemption notice.Maximum
penalty—250 penalty units.67BCurrency of
prescribed notice for sole trader(1)This
section applies if—(a)asoletraderprovidingdisabilityservicesasanNDISnon-government service provider at a service
outlet ofthe service provider has a positive notice
(thepreviousnotice);
and(b)the sole trader applied for a further
prescribed notice orexemptionnoticeatleast30daysbeforethepreviousnotice expires;
and(c)the application has not been
decided.(2)Despitesection58(2),thepreviousnoticeremainscurrentfromthedayitwouldotherwiseendunderthatsubsectionuntiltheapplicationisdecidedorwithdrawn,unlesstheprevious notice is earlier cancelled
under division 8.68Starting engagement of
volunteers(1)Afundednon-governmentserviceprovideroranNDISnon-government
service provider must not engage a volunteerat a service
outlet of the service provider unless—(a)thevolunteerhasacurrentpositivenoticeorcurrentpositive
exemption notice and the service provider hasnotified, in the
approved form, the chief executive thatthe service
provider is proposing to engage the volunteerat a service
outlet of the service provider; or(b)the
volunteer holds a WWC positive notice that is notsuspended under the Working with Children
Act and theCurrent as at [Not applicable]Page
59
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 69]serviceproviderhasappliedforanexemptionnoticeabout the volunteer.Maximum
penalty—(a)for an individual guilty under chapter
2 of the CriminalCode of an offence—50 penalty units;
or(b)forafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider—250penaltyunits.Note—Seesection46(7)forparticularvolunteerswhoarenotvolunteersengaged by a
non-government service provider.(2)Theapprovedformmentionedinsubsection (1)(a)mustinclude provision for—(a)identifying information about the volunteer;
and(b)certificationbythefundednon-governmentserviceprovider or NDIS non-government service
provider thatthe service provider has sighted documents,
relating toproofofthevolunteer’sidentity,prescribedunderaregulation.69Currency of prescribed notice for volunteer
continuingengagement(1)This
section applies if—(a)avolunteerengagedbyafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider at a service outlet of the service
provider has apositive notice (theprevious
notice); and(b)theserviceproviderappliedforafurtherprescribednoticeoranexemptionnoticeaboutthevolunteeratleast 30 days before the previous notice
expires; and(c)the application has not been
decided.(2)Despitesection
58(2),thepreviousnoticeremainscurrentfromthedayitwouldotherwiseendunderthatsubsectionPage 60Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 70]untiltheapplicationisdecidedorwithdrawnunlesstheprevious notice is earlier cancelled
under division 8.Note—See, however,
section 86 for the effect of a suspension of a positivenotice.70Prohibited engagement(1)This
section applies if a person (theengaged
person) does nothave a current
positive notice or current positive exemptionnotice.(2)Afundednon-governmentserviceprovideroranNDISnon-governmentserviceprovidermustnotengage,orcontinue to engage, the engaged person at a
service outlet ofthe service provider if the service
provider—(a)has applied for a prescribed notice or
exemption noticeabout the engaged person and has been
notified by thechief executive, other than as provided
under paragraph(b)(i),thattheengagedpersonhaswithdrawntheengaged person’s consent to screening under
this part;or(b)has been
given—(i)anoticeofdeemedwithdrawalrelatingtotheengaged person
under section 132(5); or(ii)a notice under
section 131(3) because of a changeinpoliceinformationmentionedinsection 131(3)(g); or(c)isawarethatanegativenoticeornegativeexemptionnoticehasbeenissuedtotheengagedpersonandiscurrent.Maximum
penalty—(a)for paragraph (a)—(i)foranindividualguiltyunderchapter2oftheCriminal Code of an offence—40 penalty
units; orCurrent as at [Not applicable]Page
61
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 71](ii)forafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider—200penalty units;
or(b)for paragraphs (b) and (c)—(i)foranindividualguiltyunderchapter2oftheCriminal Code of an offence—200 penalty
units or2 years imprisonment; or(ii)forafundednon-governmentserviceprovideroran
NDIS non-government service provider—1000penalty
units.(3)This section does not apply to a sole
trader.Subdivision 2Obligations if
holder of negativenotice or negative exemptionnotice, or prescribed notice orexemption notice application iswithdrawn71Person holding negative notice or negative
exemptionnotice not to apply for, or start or
continue in, regulatedengagement etc.(1)A
person who has a current negative notice or current negativeexemption notice must not—(a)signanapplicationasanengagedpersonundersection 52 or
59; or(b)apply for, or start or continue in,
regulated engagement.Maximumpenalty—500penaltyunitsor5yearsimprisonment.(2)However, if the person held a positive
notice but a negativenoticeornegativeexemptionnoticewassubstitutedforthepositive notice under section 83(1),
85 or 87, a court may notfind the person contravened subsection
(1) unless the court isPage 62Current as at
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 72]satisfiedthatnoticeofthesubstitutionwasgiventotheperson.(3)Also,ifthepersonheldapositiveexemptionnoticebutanegativeexemptionnoticewassubstitutedforthepositiveexemption notice
under section 84(1) or 89, a court may notfind the person
contravened subsection (1) unless the court issatisfiedthatnoticeofthesubstitutionwasgiventotheperson.72Person who has withdrawn consent to
screening not tostart or continue in regulated
engagementA person must not start or continue in
regulated engagementif—(a)aprescribednoticeapplicationorexemptionnoticeapplication about a person was made;
but(b)the person withdrew the person’s
consent to screeningunder this part before a prescribed
notice or exemptionnotice was issued to the person.Maximum penalty—(a)if
the person’s consent to screening is withdrawn undersection 132(2)—100penaltyunitsor1year’simprisonment;
or(b)otherwise—500 penalty units or 5 years
imprisonment.Subdivision 3Changes in
police information73Acquiring police informationFor
a person who does not have police information, there istaken to be a change in the person’s police
information if theperson acquires police information.Current as at [Not applicable]Page
63
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 74]74Effect of conviction for serious
offence(1)This section applies to a person with
a current positive noticeor positive exemption notice if the
person is convicted of aserious offence.(2)Thepersonmustimmediatelyreturnthepositivenoticeorpositiveexemptionnoticetothechiefexecutive,unlesstheperson has a reasonable excuse.Maximum penalty—100 penalty units.(3)Until and unless a prescribed event
happens for the person, theperson must not
start or continue in regulated engagement.Maximumpenalty—500penaltyunitsor5yearsimprisonment.(4)For
subsection (3), aprescribed eventhappens for a
person iftheperson’spositivenoticeorpositiveexemptionnoticeiscancelledandthepersonisissuedanewpositivenoticeorpositive exemption notice.(5)Inthissection,areferencetoaperson’spositivenoticeistakentoincludeareferencetoanypositivenoticecardrelating to the
notice.75Change in police information of person
engaged byfunded non-government service provider or
NDISnon-government service provider(1)Subsections (2) to (4) apply to a
person engaged by a fundednon-governmentserviceprovideroranNDISnon-government
service provider, other than a sole trader, ifthere is a
change in the person’s police information.(2)Thepersonmustimmediatelydisclosetothefundednon-governmentserviceproviderorNDISnon-governmentservice provider
that there has been a change in the person’spolice
information.Maximum penalty—100 penalty units.(3)Onreceivingthedisclosure,thefundednon-governmentserviceproviderorNDISnon-governmentserviceproviderPage 64Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 75]must
not continue to engage the person at a service outlet ofthe
service provider without applying for a prescribed noticeor
exemption notice, or further prescribed notice or exemptionnotice, about the person.Maximum penalty—(a)for
an individual guilty under chapter 2 of the CriminalCode
of an offence—100 penalty units; or(b)forafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider—500penaltyunits.(4)To
remove any doubt, it is declared that—(a)it
is not a requirement of subsection (2) that the persongivethefundednon-governmentserviceproviderorNDIS
non-government service provider any informationabout the change
other than that a change has happened;and(b)it is not a requirement of subsection
(3) that the fundednon-governmentserviceproviderorNDISnon-governmentserviceproviderstopengagingthepersonataserviceoutletoftheserviceprovideronreceiving the disclosure.(5)Subsections (6) and (7) apply to a
person who is a sole traderif—(a)thepersonisprovidingdisabilityservicesasanNDISnon-government service provider at a service
outlet ofthe service provider; and(b)there is a change in the person’s
police information.(6)Thepersonmustimmediatelydisclosetothechiefexecutivethattherehasbeenachangeintheperson’spoliceinformation.Maximum
penalty—100 penalty units.(7)To remove any
doubt, it is declared that it is not a requirementof
subsection (6) that the person give the chief executive anyCurrent as at [Not applicable]Page
65
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 76]informationaboutthechangeotherthanthatachangehashappened.Notauthorised—indicativeonly76Change in police
information of person engaged bydepartment(1)This section applies to a person
engaged by the department ata service outlet
of the department if there is a change in theperson’s police
information.(2)The person must immediately disclose
to the chief executivethattherehasbeenachangeintheperson’spoliceinformation.Maximum
penalty—100 penalty units.(3)If the chief
executive receives information about a change inthe
person’s police information under subsection (2), the chiefexecutivemay,undersection
50,askthepersonforwrittenconsent for the
chief executive to undertake screening of theperson under
this part.(4)To remove any doubt, it is declared
that it is not a requirementof subsection
(2) that the person give the chief executive anyinformationaboutthechangeotherthanthatachangehashappened.77Change in police information of other
persons(1)This section applies if—(a)a person has a current positive notice
or current positiveexemption notice; and(b)therehasbeenachangeintheperson’spoliceinformation since the notice was issued;
and(c)thepersonisnotengagedataserviceoutletbythedepartment, a funded non-government
service provideror an NDIS non-government service
provider.(2)Beforestartingengagementwithafundednon-governmentservice provider
or an NDIS non-government service providerataserviceoutletoftheserviceprovider,thepersonmustPage
66Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 78]notify the service provider that there has
been a change in theperson’s police information since the
person’s current positivenotice or current exemption notice was
issued.Maximum penalty—100 penalty units.(3)Subsection(2)doesnotapplyinrelationtoanNDISnon-government
service provider who is a sole trader.(4)Onreceivingthedisclosure,thefundednon-governmentserviceproviderorNDISnon-governmentserviceprovidermust not engage
the person at a service outlet of the serviceproviderwithoutapplyingfor
a further prescribed notice orexemption notice
about the person.Maximum penalty—(a)for
an individual guilty under chapter 2 of the CriminalCode
of an offence—100 penalty units; or(b)forafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider—500penaltyunits.(5)Subsection (6) applies if the person is a
sole trader.(6)BeforeprovidingdisabilityservicesasanNDISnon-governmentserviceproviderataserviceoutletoftheserviceprovider,thepersonmustnotifythechiefexecutivethattherehasbeenachangeintheperson’spoliceinformationsincetheperson’scurrentpositivenoticeorcurrent exemption notice was
issued.Maximum penalty—100 penalty units.Subdivision 4General78False or misleading disclosureA
person must not—(a)giveafundednon-governmentserviceprovideroranNDISnon-governmentserviceproviderwhoisCurrent as at [Not applicable]Page
67
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 79]proposing to engage the person information
for this partthat is false or misleading in a material
particular; or(b)state anything to the chief executive
for this part that thepersonknowsisfalseormisleadinginamaterialparticular.Maximumpenalty—100penaltyunitsor2yearsimprisonment.79False
or misleading documents(1)A person must
not give the chief executive a document for thispartcontaininginformationthepersonknowsisfalseormisleading in a material particular.Maximumpenalty—100penaltyunitsor2yearsimprisonment.(2)Subsection (1) does not apply to a person if
the person, whengiving the document—(a)tellsthechiefexecutive,tothebestoftheperson’sability, how it
is false or misleading; and(b)if
the person has, or can reasonably obtain, the correctinformation—gives the correct
information.80Return 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 issuesa negative notice or negative exemption
notice to the person.(2)The person must
immediately return the old notice and anypositive notice
card issued to the person to the chief executive,unless the person has a reasonable
excuse.Maximum penalty—100 penalty units.Page
68Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 81]81Return of cancelled positive exemption
notice to chiefexecutive(1)Thissectionappliestoapersonwithacurrentpositiveexemption notice (oldnotice) if the chief
executivecancelsthenoticeandissuesanegativeexemptionnoticetotheperson.(2)The
person must immediately return the old notice to the chiefexecutive, unless the person has a
reasonable excuse.Maximum penalty—100 penalty units.Division 8Cancellation of
prescribed noticesand exemption notices etc.82Cancellation of negative notice or
negative exemptionnotice and issuing of positive notice or
positiveexemption notice(1)Thissectionappliesifthechiefexecutivehasissuedanegative notice or negative exemption notice
to a person andthe notice is current.(2)However,thissectiondoesnotapplytothepersoniftheperson is a relevant disqualified
person.(3)Thepersonmayapplytothechiefexecutivetocancelthenotice.(4)The
application may not be made less than 2 years after theissue of the notice or any previous
application by the personunder this section, unless—(a)thedecisiontoissuethenegativenoticeornegativeexemptionnoticewasbasedonwrongorincompleteinformation;
or(b)thenegativenoticeornegativeexemptionnoticewasissuedbecausethepersonwasarelevantdisqualifiedpersonandthepersonisnolongerarelevantdisqualified
person.(5)The application must be—Current as at [Not applicable]Page
69
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 83](a)in the approved form; and(b)signed by the person; and(c)accompaniedbythefeeprescribedunderaregulationfor the
application.(6)The person may state in the
application anything the personconsiders
relevant to the chief executive’s decision including,in
particular, any change in the person’s circumstances sincethe
negative notice or negative exemption notice was issued.(7)Sections 54, 55, 56 and 57 apply to
the application as if—(a)theapplicationwereanapplicationforaprescribednotice;
and(b)a reference in the provisions to
issuing a positive noticewere a reference to granting the
application; and(c)a reference in the provisions to
issuing a negative noticewere a reference to refusing the
application.(8)Ifthechiefexecutivegrantstheapplication,thechiefexecutive
must—(a)for an application relating to a
negative notice—cancelthenegativenoticeandissueapositivenoticetotheperson;
or(b)foranapplicationrelatingtoanegativeexemptionnotice—cancel
the negative exemption notice and issuea positive
exemption notice to the person.(9)However, the chief executive may issue a
positive notice orpositiveexemptionnoticeundersubsection (8)onlyifthechiefexecutiveissatisfiedthepersonisproposing,ifthepositive notice or positive exemption
notice is issued, to beengaged in regulated
engagement.83Chief executive may cancel a
prescribed notice andsubstitute another prescribed
notice(1)Thechiefexecutivemaycancelapositivenotice(thecancellednotice)aboutapersonandsubstituteanegativenotice if the
chief executive is satisfied that—Page 70Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 83](a)the decision on the application for
the cancelled noticewasbasedonwrongorincompleteinformationand,based on the correct or complete
information, the chiefexecutive should issue the negative
notice; or(b)itisappropriatetocancelthepositivenoticehavingregard
to—(i)information received under section
117, 118, 119or130abouttheperson,otherthaninformationknowntothechiefexecutiveatthetimethecancelled notice was issued; or(ii)adecisionofacourtmadeafterthecancellednoticewasissued,includingthereasonsforthedecision, relating to an offence
committed by theperson.(2)If
the person is engaged by a funded non-government serviceprovider or an NDIS non-government service
provider at thetimethenegativenoticeissubstituted,thechiefexecutivemust
give notice of the substitution to the service provider.(3)Subsection (2) does not apply if the
person is a sole trader.(4)Thechiefexecutivemaycancelanegativenotice(thecancelled
notice)aboutapersonand,subjecttosubsection(7), substitute
it with a positive notice if—(a)the
chief executive is satisfied that the decision on theapplication for the cancelled notice was
based on wrongor incomplete information and, based on the
correct orcomplete information, the chief executive
should issue apositive notice to the person; or(b)the negative notice was issued because
the person was arelevant disqualified person and the person
is no longera relevant disqualified person; or(c)the chief executive is satisfied that
it is appropriate tocancel the negative notice having
regard to informationnot known to the chief executive at
the time the negativenotice was issued.Current as at
[Not applicable]Page 71
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 83](5)Inmakingadecisionundersubsection(1)or(4),thechiefexecutive must
make the decision as if it were a decision aboutan
application for a prescribed notice and, for that purpose,sections 54,55and56applytothedecisionunderthissection.(6)If
the chief executive proposes to substitute a negative noticeas
mentioned in subsection (1), the chief executive must firstcomply with section 57 as if—(a)the reference in section 57(2) to
deciding the applicationbyissuinganegativenoticewereareferencetosubstituting a negative notice for a
positive notice; and(b)the reference in
section 57(4) to deciding the applicationwere a reference
to substituting a negative notice for apositive
notice.(7)If,forsubsection(4),thechiefexecutive’sdecisionundersubsection (5)
is that the person should be issued a positivenotice, the
chief executive may issue a positive notice to thepersononlyifthechiefexecutiveissatisfiedthepersonisproposing,ifthepositivenoticeisissued,tobeengagedinregulated engagement.(8)Thechiefexecutivemaycancelaperson’snegativenoticeunder subsection
(4) even if—(a)apositivenoticeisnotissuedtothepersonundersubsection (7) until a later time; or(b)apositivenoticeisneverissuedtothepersonundersubsection
(7).(9)The chief executive may act under
subsection (4) only on thechief executive’s own
initiative.Note—Forthechiefexecutive’spowertocancelanegativenoticeonapplication by a person, see section
82.Page 72Current as at
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 84]84Chief executive may cancel an
exemption notice andsubstitute another exemption notice(1)The chief executive may cancel a
positive exemption notice(thecancelled
notice) about a person and substitute a
negativeexemption notice if the chief executive is
satisfied that—(a)the decision on the application for
the cancelled noticewasbasedonwrongorincompleteinformationand,based on the correct or complete
information, the chiefexecutiveshouldissueanegativeexemptionnoticetothe
person; or(b)itisappropriatetocancelthecancellednoticehavingregard
to—(i)information received under section
117, 118, 119or130abouttheperson,otherthaninformationknowntothechiefexecutiveatthetimethecancelled notice was issued; or(ii)adecisionofacourtmadeafterthecancellednoticewasissued,includingthereasonsforthedecision, relating to an offence
committed by theperson.(2)If
the person is engaged by a funded non-government serviceprovider or an NDIS non-government service
provider at thetimethenegativeexemptionnoticeissubstituted,thechiefexecutive must
give notice of the substitution to the serviceprovider.(3)Subsection (2) does not apply if the
person is a sole trader.(4)Thechiefexecutivemaycancelanegativeexemptionnotice(thecancellednotice)aboutapersonand,subjecttosubsection (7), substitute a positive
exemption notice if—(a)the chief
executive is satisfied that the decision on theapplication for
the cancelled notice was based on wrongor incomplete
information and, based on the correct orcomplete
information, the chief executive should issue apositive
exemption notice to the person; orCurrent as at
[Not applicable]Page 73
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 84](b)thenegativeexemptionnoticewasissuedbecausetheperson was a relevant disqualified
person and the personis no longer a relevant disqualified
person; or(c)the chief executive is satisfied that
it is appropriate tocancel the negative exemption notice
having regard toinformation not known to the chief executive
at the timethe negative exemption notice was
issued.(5)Inmakingadecisionundersubsection(1)or(4),thechiefexecutive must
make the decision as if it were a decision aboutanexemptionnoticeapplicationand,forthatpurpose,sections 61,62and63applytothedecisionunderthissection.(6)Ifthechiefexecutiveproposestosubstituteanegativeexemptionnoticeasmentionedinsubsection (1),thechiefexecutive must
first comply with section 57 as if—(a)the
reference in section 57(2) to deciding the applicationbyissuinganegativenoticewereareferencetosubstituting a negative exemption notice for
a positiveexemption notice; and(b)the
reference in section 57(4) to deciding the applicationwereareferencetosubstitutinganegativeexemptionnotice for a positive exemption
notice.(7)If,forsubsection(4),thechiefexecutive’sdecisionundersubsection (5)
is that the person should be issued a positiveexemptionnotice,thechiefexecutivemayissueapositiveexemptionnoticetothepersononlyifthechiefexecutiveissatisfiedthepersonisproposing,ifthepositiveexemptionnotice is issued, to be engaged in regulated
engagement.(8)The chief executive may cancel a
person’s negative exemptionnotice under
subsection (4) even if—(a)a positive
exemption notice is not issued to the personunder subsection
(7) until a later time; or(b)a positive
exemption notice is never issued to the personunder subsection
(7).Page 74Current as at
[Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 85](9)The chief executive may act under
subsection (4) only on thechief executive’s own
initiative.Note—For the chief
executive’s power to cancel a negative exemption noticeon
application by a person, see section 82.85Cancellation of positive notice if relevant
disqualifiedperson(1)This
section applies if a person who is the holder of a positivenotice,includingapositivenoticethatissuspendedundersection 86, becomes a relevant disqualified
person other thanonlybecausethepersonissubjecttoeitherorbothofthefollowing—(a)a
temporary offender prohibition order;(b)an
interim sexual offender order.(2)The
chief executive must cancel the positive notice held by theperson and substitute a negative
notice.(3)At the time the chief executive gives
the person the negativenotice,thechiefexecutivemustgivethepersonafurthernotice
stating—(a)thepersoncannotapplyundersection
82forthecancellation 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-governmentserviceprovideroranNDISnon-governmentserviceprovider, the chief executive must give
notice to the serviceprovider 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
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 86]Notauthorised—indicativeonly86Suspension of
positive notice if charged withdisqualifying
offence or subject to temporary or interimorder(1)The chief executive must, by notice,
suspend a positive noticeheld by a person if the person—(a)is charged with a disqualifying
offence; or(b)becomesarelevantdisqualifiedpersonbecausethepersonissubjecttoatemporaryoffenderorderorinterim 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)thepersonmustreturnthepositivenotice,andthepositive notice
card, to the chief executive within 7 daysafter the notice
is given to the person;(f)the relevant
review and appeal information.(3)Until the suspension ends, the person whose
positive notice issuspendedandwhoisgivenanoticeundersubsection (1)mustnotapplyfor,orstartorcontinuein,regulatedengagement.Maximumpenalty—500penaltyunitsor5yearsimprisonment.(4)Within7daysafterapersonisgivennoticeundersubsection (1),
the person must return each of the following tothe 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-governmentserviceprovideroranNDISnon-governmentservicePage
76Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 86]provider, the chief executive must give
notice to the serviceprovider stating that the positive
notice held by the person issuspended and
the effect of the suspension.(6)Subsection (5) does not apply if the person
is a sole trader.(7)Anoticeundersubsection
(5)toafundednon-governmentservice provider
or an NDIS non-government service providermust state
that—(a)the service provider must not allow
the person to workat a service outlet of the service provider;
and(b)theserviceprovidermustnotterminatetheperson’sengagement or
continued engagement solely or mainlybecause the
person’s positive notice is suspended.(8)Afundednon-governmentserviceprovideroranNDISnon-government
service provider to whom a notice is givenunder subsection
(5) must not allow the person engaged by theserviceprovidertoworkataserviceoutletoftheserviceprovider.Maximum
penalty—(a)for an individual guilty under chapter
2 of the CriminalCodeofanoffence—200penaltyunitsor2yearsimprisonment;
or(b)forafundednon-governmentserviceprovideroranNDIS non-government service
provider—1000 penaltyunits.(9)Afundednon-governmentserviceprovideroranNDISnon-government
service provider to whom a notice is givenundersubsection (5)aboutapersonmustnotterminatetheperson’sengagementorcontinuedengagementsolelyormainly because the service provider is
given the notice.(10)Withoutlimitingsubsection
(3)anddespitesection
58(2),apositivenoticeremainscurrentduringtheperiodofsuspension 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 serviceproviders[s 87]87Ending of suspension and issue of
further prescribednotice(1)This
section applies to a positive notice held by a person thatis
suspended under section 86 (thesuspended
notice).(2)The suspension
ends if—(a)thesuspendednoticeiscancelledunderanotherprovision of
this division; or(b)on the chief executive’s own
initiative or on applicationby the
person—(i)thechiefexecutivecancelsthesuspendednoticeandissuesafurtherpositivenoticeoranegativenotice to the
person; or(ii)the chief
executive cancels the suspended notice asmentioned in
subsection (5).(3)Inmakingadecisiontocancelthesuspendednoticeand,subject to
subsection (5), issue a further positive notice or anegative notice to the person, the chief
executive must makethe decision as if it were a decision about
an application for aprescribed notice and, for that
purpose, sections 54, 55 and 56apply to the
decision under this section.(4)If
the chief executive proposes to issue a negative notice, thechief executive must first comply with
section 57.(5)The chief executive may cancel the
suspended positive noticewithout issuing a further prescribed
notice to the person if thechiefexecutiveissatisfiedthatthepersonisnolongerproposing to be
engaged in regulated engagement, even if afurther positive
notice is issued to the person.(6)Despite an application made by the person as
mentioned insubsection (2)(b), the chief executive is
not required to decidethe application—(a)whileachargeagainstthepersonforadisqualifyingoffence is
pending; orPage 78Current as at
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 88](b)whilethepersonisarelevantdisqualifiedpersonbecausethepersonissubjecttoatemporaryoffenderprohibition order or interim sexual offender
order; or(c)ifthepersonhasbeenconvictedofadisqualifyingoffence
and—(i)theperiodallowedforanappealrelatingtotheconviction or
sentence of the person has not ended;or(ii)an appeal
relating to the conviction or sentence hasstarted but has
not been decided; or(d)ifthepersonissubjecttoafinaloffenderprohibitionorder,disqualificationorderorfinalsexualoffenderorder
and—(i)theperiodallowedforanappealrelatingtotheorder has not
ended; or(ii)an appeal
relating to the order has started but hasnot been
decided.88Suspension of a positive exemption
notice if WWCpositive notice suspended(1)This section applies if—(a)a person holds a positive exemption
notice on the basisthe person also holds a WWC positive notice;
and(b)theWWCpositivenoticeissuspendedundertheWorking with Children Act.(2)Thechiefexecutivemustsuspendtheperson’spositiveexemption notice by notice given to the
person.(3)The notice about the suspension must
state the following—(a)thepositiveexemptionnoticeheldbythepersonissuspended;(b)the
reason for the suspension;(c)how long the
suspension will continue;Current as at [Not applicable]Page
79
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 88]Notauthorised—indicativeonly(d)the effect of
the suspension;(e)the person must return the positive
exemption notice tothe chief executive within 7 days after the
notice aboutthe suspension is given to the
person;(f)the relevant review and appeal
information.(4)Untilthesuspensionends,thepersonwhosepositiveexemptionnoticeissuspendedandwhoisgivenanoticeunder subsection
(2) must not apply for, or start or continuein, regulated
engagement.Maximumpenalty—500penaltyunitsor5yearsimprisonment.(5)Within7daysafterapersonisgivennoticeundersubsection
(2),thepersonmustreturntheperson’spositiveexemption notice to the chief
executive.Maximum penalty—100 penalty units.(6)Also, if the person is engaged by a
funded non-governmentserviceprovideroranNDISnon-governmentserviceprovider, the chief executive must give
notice to the serviceprovider stating the following—(a)thepositiveexemptionnoticeheldbythepersonissuspended;(b)how
long the suspension will continue;(c)the
effect of the suspension;(d)that the service
provider must not allow the person towork at a
service outlet of the service provider while theperson’s positive exemption notice is
suspended;(e)theserviceprovidermustnotterminatethepersonsengagement or
continued engagement solely or mainlybecausetheperson’spositiveexemptionnoticeissuspended.(7)Subsection (6) does not apply if the person
is a sole trader.(8)Afundednon-governmentserviceprovideroranNDISnon-governmentserviceprovidertowhomnoticeisgivenPage 80Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 89]under subsection (6) must not allow the
person to work at aserviceoutletoftheserviceproviderwhiletheperson’spositive
exemption notice is suspended.Maximum
penalty—(a)for an individual guilty under chapter
2 of the CriminalCode of an offence—200 penalty units;
or(b)forafundednon-governmentserviceprovideroranNDIS non-government service
provider—1000 penaltyunits.(9)Afundednon-governmentserviceprovideroranNDISnon-government
service provider to whom a notice is givenundersubsection (6)aboutapersonmustnotterminatetheperson’sengagementorcontinuedengagementsolelyormainly because the service provider is
given the notice.89Ending of suspension and issue of
further exemptionnotice or prescribed notice(1)This section applies to a positive
exemption notice held by apersonthatissuspendedundersection 88(thesuspendednotice).(2)The suspension
ends if—(a)thesuspendednoticeiscancelledunderanotherprovision of
this division; or(b)thesuspendednoticeceasestohaveeffectundersection 64(2)
because the person’s WWC positive noticeis cancelled
under the Working with Children Act; or(c)on
the chief executive’s own initiative or on applicationby
the person—(i)thechiefexecutivecancelsthesuspendednoticeandissuesafurtherpositiveexemptionnoticeornegative exemption notice to the
person; or(ii)the chief
executive cancels the suspended notice asmentioned in
subsection (6).(3)If subsection (2)(b) applies—Current as at [Not applicable]Page
81
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 89](a)the chief executive may, on the chief
executive’s owninitiativeoronapplicationbytheperson,issueapositive notice or negative notice to
the person; and(b)inmakingadecisionunderparagraph(a),thechiefexecutive must
make the decision as if it were a decisionaboutaprescribednoticeapplicationand,forthatpurpose,sections 54,55and56applyinrelationtomaking the decision.(4)Inmakingadecisionundersubsection (2)(c)tocancelthesuspendednoticeand,subjecttosubsection (6),issueareplacementnoticetotheperson,thechiefexecutivemustmake the
decision as if it were a decision about an exemptionnotice application and, for that purpose,
sections 61, 62 and63 apply in relation to making the
decision.(5)If the chief executive proposes to
issue a negative notice ornegativeexemptionnoticeundersubsection (3)or(4),thechief executive must first comply with
section 57 as if—(a)the reference in section 57(2) to
deciding the applicationby issuing a negative notice were a
reference to issuing anegative notice or negative exemption
notice under thissection; and(b)the
reference in section 57(4) to deciding the applicationwere
a reference to cancelling the suspended notice andissuingaprescribednoticeorexemptionnoticeunderthis
section.(6)Thechiefexecutivemaycancelthesuspendedpositiveexemption notice without issuing a further
exemption noticeor a prescribed notice to the person if the
chief executive issatisfied that the person is no longer
proposing to be engagedin regulated engagement, even if a
positive exemption noticeor positive notice is issued to the
person.(7)Ifthechiefexecutiveissuesanegativenoticeornegativeexemption notice
to the person under this section, the chiefexecutive must
give the person a notice stating—Page 82Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 90](a)the reasons for the chief executive’s
decision to issue anegativenoticeornegativeexemptionnoticetotheperson; and(b)the
relevant review and appeal information.(8)Also, if the person is engaged by a funded
non-governmentservice provider or an NDIS non-government
service providerand the chief executive issues a further
exemption notice or aprescribednoticetotheperson
underthissection,thechiefexecutive must
give notice to the service provider stating—(a)the
person’s suspended notice has been cancelled underthissectionor,ifsubsection
(2)(b)applies,ceasedtohave effect under section 64;
and(b)whetherthepersonhasbeenissuedapositivenotice,negativenotice,positiveexemptionnoticeornegativeexemption
notice.(9)Subsection (8) does not apply if the
person is a sole trader.(10)Despite an
application made by the person as mentioned insubsection
(2)(c), the chief executive is not required to decidetheapplicationwhiletheperson’sWWCpositivenoticeissuspended under the Working with
Children Act.90Notifying 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 thatis current under
the Working with Children Act.(2)The
chief executive must give the person a notice stating thattheperson’spositiveexemptionnoticehasceasedtohaveeffect under
section 64.(3)The notice must also advise the person
that a prescribed noticeapplication may be made about the
person if the person doesnotholdaWWCpositivenoticeandisnotadisqualifiedperson.Current as at [Not applicable]Page
83
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 91](4)Also, if the person is engaged by a
funded non-governmentservice provider or an NDIS
non-government service providerat a service
outlet of the service provider, the chief executivemust
give the service provider a notice stating that—(a)thepositiveexemptionnoticeheldbythepersonhasceased to have effect under section 64;
and(b)a prescribed notice application may be
made about thepersonifthepersondoesnotholdaWWCpositivenotice and is
not a disqualified person.(5)Subsection (4)
does not apply if the person is a sole trader.(6)Apersonwhoisgivennoticeundersubsection
(2)thattheperson’s positive exemption notice has
ceased to have effectmust immediately return the positive
exemption notice to thechief executive, unless the person has
a reasonable excuse.Maximum penalty for subsection (6)—100
penalty units.91Request to cancel positive notice or
positive exemptionnotice(1)Aperson,includingapersonwhosepositivenoticeissuspendedundersection 86orwhosepositiveexemptionnotice is
suspended under section 88, may, by notice, ask thechiefexecutivetocanceltheperson’spositivenoticeorpositive 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 hasbeen cancelled;
and(ii)the person must
not apply for, or start or continuein, regulated
engagement.(3)Thepersonmustnotapplyfor,orstartorcontinuein,regulatedengagementunlessthechiefexecutiveissuesaPage
84Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 92]furtherpositivenoticeorpositiveexemptionnoticetotheperson.Maximumpenalty—500penaltyunitsor5yearsimprisonment.(4)If
the person is engaged by a funded non-government serviceprovideroranNDISnon-governmentserviceprovider,thechief executive must give notice about the
cancellation of theperson’spositivenoticeorpositiveexemptionnoticetotheservice provider.(5)Subsection (4) does not apply if the person
is a sole trader.(6)Anoticeundersubsection
(4)muststatethatafundednon-governmentserviceprovideroranNDISnon-government
service provider to whom the notice is givenmust not engage,
or continue to engage, the person at a serviceoutlet of the
service provider.92Replacement of positive notice,
positive notice card orpositive exemption notice(1)If a person’s current positive notice,
positive notice card, orpositive 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 positivenotice card and only the notice is
lost or stolen, or onlythe card is lost or stolen, return the
card or the noticethat is not lost or stolen to the chief
executive; and(c)either—(i)apply for a replacement notice or card;
or(ii)askthechiefexecutivetocanceltheperson’spositive notice
or positive exemption notice undersection
91.Maximum penalty—10 penalty units.Current as at [Not applicable]Page
85
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 92](2)Anapplicationundersubsection (1)(c)(i)mustbeintheapproved form and accompanied by the fee
prescribed under aregulation for the application.(3)The chief executive must—(a)cancel—(i)foralostorstolenpositivenotice—thelostorstolennoticeandanypositivenoticecardissuedfor it;
or(ii)for a lost or
stolen positive notice card—the lost orstolen card and
the positive notice for which it wasissued;
or(iii)for a lost or
stolen positive exemption notice—thelost or stolen
notice; and(b)ifthepersonmakesanapplicationundersubsection (1)(c)(i)—issue to the
person—(i)for a lost positive notice or positive
notice card—areplacement positive notice and, if the
person had apositivenoticecardfortheperson’spreviouspositive notice, a replacement positive
notice card;or(ii)foralostorstolenpositiveexemptionnotice—areplacement positive exemption
notice.(4)The chief executive must issue the
replacement notice or cardwith a different registration number
to the number of the lostor stolen notice or card.(5)If the person’s lost or stolen notice
or card is returned to, orotherwise recovered by, the person
after the application for areplacement
notice or card, the person must give the replacednotice or card to the chief executive within
14 days after it isreturned to, or otherwise recovered by, the
person.Maximum penalty—10 penalty units.(6)Thechiefexecutivemustgivenoticetothepolicecommissioneraboutthefactthatacurrentpositivenotice,Page 86Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 93]currentpositivenoticecard,orcurrentpositiveexemptionnotice, has been
lost or stolen.Notauthorised—indicativeonly93Change of details for positive notice,
positive notice cardor positive exemption notice(1)Thissectionappliesiftheholderofapositivenoticeorpositive exemption notice does any of
the following (each ofwhich is arelevant
change)—(a)changes a name
the holder has previously given to thechief
executive;(b)starts to use a different name to the
name or names theholder has previously given to the chief
executive;(c)changescontactdetailspreviouslygiventothechiefexecutive.(2)The
holder must give notice, in the approved form, to the chiefexecutive about the relevant change within
14 days after therelevant change.Maximum
penalty—10 penalty units.(3)If the chief
executive considers it is appropriate to do so, thechief executive may issue to the
holder—(a)fortheholderofapositivenotice—areplacementpositivenoticeand,iftheholderalsohasapositivenotice card, a
replacement positive notice card; or(b)fortheholderofapositiveexemptionnotice—areplacement positive exemption
notice.(4)If the chief executive issues the
holder a replacement positivenotice, positive
notice card or positive exemption notice, theholdermustreturnthereplacednoticeorcardtothechiefexecutivewithin14daysafterreceivingthereplacementnotice or
card.Maximum penalty—10 penalty units.(5)The chief executive must cancel the
previously held positivenotice, positive notice card or
positive exemption notice if thechief executive
has issued a replacement notice or card.Current as at
[Not applicable]Page 87
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 94]94Replacement notice etc. if change in
engagement details(1)This section applies if the holder of
a positive notice that isnot suspended changes the person’s
engagement by a fundednon-governmentserviceprovideroranNDISnon-governmentserviceproviderfromengagementasavolunteertoengagementasotherthanavolunteer(therelevant change).(2)The holder must give notice, in the
approved form, to the chiefexecutive about
the relevant change within 14 days after thechange.Maximum penalty—10 penalty units.(3)If,undersubsection (6),thenoticeisaccompaniedbytheprescribed application fee, the chief
executive must issue tothe holder a new positive notice and,
if the holder also has apositive notice card, a new positive
notice card.(4)If the chief executive issues to the
holder a new positive noticeor positive
notice card under subsection (3), the holder mustreturn the person’s previously held notice
or card to the chiefexecutivewithin14daysafterreceivingthenewnoticeorcard.Maximum
penalty—10 penalty units.(5)The chief
executive must cancel the previously held positivenotice or positive notice card if the chief
executive has issueda new notice or card.(6)The notice under subsection (2) must
be accompanied by theprescribedapplicationfeeiftheapplicationforthepositivenotice was
made—(a)before 1 July 2010; or(b)on the basis the holder was engaged,
or to be engaged, inregulated engagement as a
volunteer.(7)In this section—prescribedapplicationfee,foranoticegivenundersubsection
(2),meanstheprescribedfeeforaprescribedPage 88Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 95]noticeapplicationaboutapersonengagedinregulatedengagement other
than as a volunteer.Notauthorised—indicativeonlyDivision 9Persons who hold
or held a WWCpositive notice95Application of div 8 to person who holds WWC
positivenotice and prescribed notice(1)This section applies if—(a)apersonholdsacurrentpositivenoticeorcurrentnegative notice;
and(b)the person also holds a WWC positive
notice.(2)The person’s positive notice or
negative notice continues ineffect subject
to section 58.(3)Division8continuestoapplyinrelationtotheperson’spositive notice
or negative notice while it remains current.(4)If,underaprovisionofdivision8,thechiefexecutiveisrequired or permitted to issue a
positive notice to the personand the chief
executive is aware the person also holds a WWCpositivenotice,thechiefexecutivemustinsteadissueapositive exemption notice to the
person.(5)If,underaprovisionofdivision8,thechiefexecutiveisrequired or permitted to issue a
negative notice to the personandthechiefexecutiveisawarethepersonholdsaWWCpositivenotice,thechiefexecutivemustinsteadissueanegative exemption notice to the
person.(6)This section applies despite section
51.96Person who holds negative exemption
notice but nolonger holds WWC positive notice(1)This section applies if—(a)a person was issued a negative
exemption notice on thebasis the person held a WWC positive
notice; andCurrent as at [Not applicable]Page
89
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 97](b)the person no longer holds a WWC
positive notice.(2)Thenegativeexemptionnoticecontinuesineffectdespitesection 59(1).(3)If,aftercancellingthenegativeexemptionnoticeundersection 82or84(4),thechiefexecutiveisrequiredorpermittedtoissueapositiveexemptionnoticetothepersonand the chief
executive is aware the person does not hold aWWC positive
notice, the chief executive must instead issue apositive notice to the person.Division 10Disqualified
persons97Who is adisqualified
person(1)A person is adisqualified
personif 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 adisqualified person if the chief
executive issued an eligibilitydeclaration to
the person and the eligibility declaration has notexpired.Notes—1Under section 102, a person who is
issued a positive notice, orwhose negative
notice or negative exemption notice is cancelled, istaken to be issued with an eligibility
declaration.2Seesection
106forwhenaneligibilitydeclarationexpires,including if the person is charged with a
disqualifying offence orbecomes a relevant disqualified person
after the declaration wasissued.Page 90Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 98]98Offences for disqualified
person(1)A disqualified person must not—(a)signanapplicationasanengagedpersonundersection 52;
or(b)apply for, or start or continue in,
regulated engagement.Maximumpenalty—500penaltyunitsor5yearsimprisonment.(2)If
the chief executive is satisfied a person who has signed anapplication as mentioned in subsection
(1)(a) is a disqualifiedperson, the chief executive must give
a notice to the personstating the following—(a)thechiefexecutiveissatisfiedthepersonisadisqualified person;(b)the application is invalid;(c)thepersonmustnotapplyfor,orstartorcontinuein,regulated engagement.(3)Also,thechiefexecutivemustgiveanoticestatingthefollowing to the funded non-government
service provider orNDISnon-governmentserviceproviderwhomadetheapplication—(a)that
the chief executive is satisfied that the person forwhomtheapplicationhasbeenmadeisadisqualifiedperson;(b)the service provider must not allow
the person to start orcontinueinengagementbytheserviceproviderataservice 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 afundednon-governmentserviceprovideroranNDISnon-governmentserviceprovidertoengagethedisqualifiedperson at a
service outlet of the service provider.Current as at
[Not applicable]Page 91
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 99]99Application for an eligibility
declaration(1)The purpose of this section is to
allow a person who may be adisqualifiedpersontoapplytothechiefexecutiveforadeclaration(eligibilitydeclaration)thatthepersonisnotadisqualified
person and is eligible to sign an application as anengaged person under section 52.(2)A person may make an application
(eligibility application) tothe
chief executive for an eligibility declaration.(3)The
person can not make an eligibility application less than 2years after making a previous eligibility
application that hasbeen refused, unless—(a)the decision to refuse the previous
eligibility applicationwas based on wrong or incomplete
information; or(b)the previous eligibility declaration
was refused becausethepersonwasarelevantdisqualifiedpersonandtheperson 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 prescribedperson has sighted the documents, relating
to proof ofthe person’s identity, prescribed under a
regulation.100Notice of change of name and contact
details in eligibilityapplication(1)Thissectionappliesif,afterapersonmakesaneligibilityapplication, the
person’s name or contact details, as stated intheapplication,changebeforethechiefexecutiveissuesaneligibilitydeclarationoranoticerelatingtotheapplicationunder section
101.Page 92Current as at
[Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 101](2)Within 14 days after the change
happens, the person must givenotice of it, in
the approved form, to the chief executive.Maximum
penalty—10 penalty units.Notauthorised—indicativeonly101Chief executive’s decision on
eligibility application(1)The chief
executive may issue an eligibility declaration to aperson 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 asifitwereadecisionaboutanapplicationforaprescribednotice and, for
that purpose, sections 54, 55 and 57 apply tothe
decision.(3)For subsection (2), sections 54, 55
and 57 apply as if—(a)areferenceinthesectionstoaprescribednoticeapplication were a reference to an
eligibility application;and(b)a
reference in the sections to issuing a positive noticewereareferencetoissuinganeligibilitydeclaration;and(c)a reference in the sections to issuing
a negative noticewereareferencetorefusingtoissueaneligibilitydeclaration.(4)Iftheeligibilityapplicationisgranted,thechiefexecutivemust
issue the eligibility declaration to the person.(5)Iftheeligibilityapplicationisrefused,thechiefexecutivemust
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 thenotice,thepersonmayappealtoaMagistratesCourtaboutthepolicecommissioner’sdecisionCurrent as at [Not applicable]Page
93
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 102]thattheinformationisinvestigativeinformation;and(ii)howthepersonmayappealtotheMagistratesCourt.(6)Ifthechiefexecutiveconsidersthepersonhasnotbeenconvicted of a
disqualifying offence, the chief executive mustgive notice to
the person stating the following—(a)thechiefexecutivemayonlyissueaneligibilitydeclarationifthepersonhasbeenconvictedofadisqualifying
offence;(b)thechiefexecutivedoesnotconsiderthepersonhasbeen
convicted of a disqualifying offence and, for thatreason, the chief executive cannot
issue an eligibilitydeclaration to the person;(c)ifthepersonisnotadisqualifiedpersonforanotherreason, a
prescribed notice application may be made forthe
person;(d)the eligibility application will not
be further dealt withby the chief executive.(7)There is no review or appeal under
this Act in relation to adecision of the chief executive under
this section to refuse aneligibility application.102Eligibility declaration taken to have
been issuedThechiefexecutiveistakentohaveissuedaneligibilitydeclaration 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 noticeissued to the person.103Withdrawing eligibility application
generallyA person may withdraw the person’s
eligibility application atanytimebeforethechiefexecutiveissuesaneligibilityPage 94Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 104]declarationoranoticerelatingtotheapplicationundersection 101.Notauthorised—indicativeonly104Deemed withdrawal of eligibility
application if identitycan not be establishedA
person is taken to have withdrawn the person’s eligibilityapplication if—(a)the
chief executive gives the person a notice—(i)asking the person to provide, within a
reasonablestatedtime,statedinformationthatthechiefexecutivereasonablyneedstoestablishtheperson’s identity; and(ii)warningthepersonthat,ifthepersondoesnotcomplywiththerequest,theperson’seligibilityapplication may
be taken to have been withdrawn;and(b)the person does not comply with the
request within thestated time; and(c)the
chief executive can not establish with certainty theperson’s identity; and(d)the
chief executive gives the person a notice stating thatthepersonistakentohavewithdrawntheeligibilityapplication.105Deemed withdrawal of eligibility application
if particularrequests not complied withA
person is taken to have withdrawn the person’s eligibilityapplication if—(a)the
chief executive gives the person—(i)anoticeaskingthepersontoprovide,withinareasonablestatedtime,statedinformation,including by way
of a submission, about a statedmatter that the
chief executive reasonably believesis relevant to
the application; orCurrent as at [Not applicable]Page
95
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 106](ii)a notice under
section 121; or(iii)anoticeaskingthepersontogivethenecessaryconsent for
section 123 or 124; or(iv)anoticeaskingthepersontogivethenecessaryconsent for
section 128 or 129; and(b)the notice
includes a warning that, if the person does notcomplywiththenotice,theperson’seligibilityapplication 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 thatthepersonistakentohavewithdrawntheeligibilityapplication.106Expiry of eligibility declarationAn
eligibility declaration issued to a person expires if, after
itis 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)isissuedwithanegativenoticeornegativeexemption
notice; or(b)any positive notice or positive
exemption notice held bythe person is cancelled.107Reversal of decision refusing an
eligibility declaration(1)Thechiefexecutivemayrevokeadecisiontorefuseaneligibility application and issue an
eligibility declaration if thechief executive
is satisfied—(a)the decision on the application was
based on wrong orincomplete information; andPage
96Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 108](b)based on the correct or complete
information, the chiefexecutivedecidesundersection
101thatthechiefexecutive may
issue the eligibility declaration.(2)Thechiefexecutivemayexercisethepowerundersubsection (1)onthechiefexecutive’sowninitiativeoronapplicationbythepersonwhoseeligibilityapplicationwasrefused.Division
11MiscellaneousSubdivision
1Reviews and appeals againstparticular decisions108Definitions for sdiv 1In this
subdivision—issue—(a)inrelationtoanegativenotice—includessubstituteanegative notice after cancelling a positive
notice; and(b)inrelationtoanegativeexemptionnotice—includessubstitute a
negative exemption notice after cancelling apositive
exemption notice.part 5 reviewable decision,
about a person, means—(a)adecisionofthechiefexecutiveastowhetherornotthere is an
exceptional case for the person if, because ofthe decision,
the chief executive—(i)issuedanegativenoticeornegativeexemptionnotice to the person; or(ii)refusedtocancelanegativenoticeornegativeexemption notice
issued to the person; or(b)a decision of
the chief executive that the person has beencharged with a
disqualifying offence if—Current as at [Not applicable]Page
97
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 108](i)because of the decision, the positive
notice held bythe person was suspended under section 86;
and(ii)the person
claims he or she has not been chargedwith the
disqualifying offence; and(iii)thepersonhasappliedforacancellationofthesuspensionundersection 87andthatapplicationhas been
refused; or(c)a decision of the chief executive that
the person’s WWCpositive notice has been suspended under the
Workingwith Children Act if—(i)becauseofthedecision,thepositiveexemptionnoticeheldbythepersonwassuspendedundersection 88; and(ii)the
person claims his or her WWC positive noticehasnotbeensuspendedundertheWorkingwithChildren Act; and(iii)thepersonhasappliedforacancellationofthesuspensionundersection 89andthatapplicationhas been
refused; or(d)a relevant disqualified person
decision if—(i)because of the decision, the chief
executive issueda negative notice or negative exemption
notice tothe person; and(ii)thepersonclaimsheorsheisnotthepersontowhomtheconviction,reportingobligationsororder in relation to which the decision was
maderelates; and(iii)thepersonhasappliedforacancellationofthenegative notice or negative exemption
notice undersection 82, and that application has been
refused.prescribed period, for a review
of a part 5 reviewable decisionabout a person,
means 28 days after the person is given noticeof the
following—Page 98Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 109](a)forapart5decisionmentionedindefinitionpart5reviewable decision,
paragraph (a)—the decision;(b)forapart5decisionmentionedindefinitionpart5reviewable decision,
paragraph (b)—the decision on theapplication
under section 87 about the suspension;(c)forapart5decisionmentionedindefinitionpart5reviewable decision,
paragraph (c)—the decision on theapplication
under section 89 about the suspension;(d)forapart5decisionmentionedindefinitionpart5reviewable decision,
paragraph (d)—the decision on theapplication
under section 82 about the negative notice ornegative
exemption notice.relevant disqualified person decisionmeans—(a)a
decision of the chief executive that a person has beenor
is convicted of a disqualifying offence for which animprisonment order was or is imposed;(b)a decision of the chief executive that
a person is subjectto—(i)offender
reporting obligations; or(ii)a final offender
prohibition order; or(iii)a
disqualification order; or(iv)a final sexual
offender order.109Person may apply for review of part 5
reviewable decision(1)A person who is not a disqualified
person may apply, withintheprescribedperiodandasotherwiseprovidedundertheQCAT Act, to the tribunal for a review
of a part 5 reviewabledecision about the person.(2)Ifapersonappliesundersubsection
(1)tohaveapart5reviewable 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
99
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 110](3)To remove any doubt, it is declared
that there is no review orappealunderthisActinrelationtoadecisionofthechiefexecutivetoissue,orrefusetocancel,anegativenoticeornegative exemption notice about a
person other than becauseof a part 5 reviewable
decision.Note—There is also no
review or appeal under this Act in relation to a decisionofthechiefexecutivetorefuseaneligibilityapplication.Seesection 101(7).(4)This
section does not limit section 113.110Effect of applicant for a review becoming a
disqualifiedperson(1)Thissectionappliesifadisqualifiedpersonmadeanapplicationundersection 109beforethepersonbecameadisqualified person.(2)Theapplicationandanyproceedinginrelationtotheapplication must be dismissed—(a)if a proceeding in relation to the
application is before acourt—by the court; or(b)otherwise—by the tribunal, even if the
dismissal wouldbe contrary to a direction of the Court of
Appeal.(3)Any appeal by the person from a
decision of the tribunal onthe application
must be dismissed.Subdivision 2Provisions about
investigativeinformation111Police commissioner may decide that
information about aperson is investigative information(1)The police commissioner may decide
under this section thatinformationaboutaperson(theinvestigatedperson)isinvestigative
informationif—Page 100Current as at
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 111]Notauthorised—indicativeonly(a)there is or was evidence of acts or
omissions that, at thetime of the acts or omissions,
constituted a schedule 6 or7offence(theallegedoffence)bytheinvestigatedperson against a
person (thecomplainant); and(b)thepoliceinvestigatedtheallegedoffenceandtheinvestigatedpersonwasformallynotifiedabouttheinvestigation, including—(i)by participating in an interview, or
by being askedtoparticipateinaninterview,abouttheallegedoffence;
or(ii)by otherwise
being given an opportunity to answerallegations
about the alleged offence; and(c)there was sufficient evidence available that
was capableof establishing each element of the alleged
offence but adecision was made not to charge the
investigated personbecause—(i)thecomplainantdiedbeforethechargewasbrought; or(ii)either or both of the following
applied—(A)the complainant was unwilling to
proceed;(B)anadultwho,attherelevanttime,wasthecomplainant’sparentorguardiandecidedthat, in the interests of the complainant,
thematter should not proceed.(2)Evidenceofactsoromissionsincludesinformationfromathird party if the complainant did not
make a formal complaintat or about the time of the
investigation.(3)For this section, aschedule 6 or 7 offenceis—(a)an offence against a provision of an
Act mentioned inschedule 6 or 7, column 1, subject to any
qualificationrelating to the provision mentioned opposite
in column3; or(b)an
offence of counselling or procuring the commissionof
an offence of a kind mentioned in paragraph (a); orCurrent as at [Not applicable]Page
101
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 112](c)an offence of attempting, or of
conspiring, to commit anoffence of a kind mentioned in
paragraph (a); or(d)an offence that has, as an element,
intention to commitan offence of a kind mentioned in paragraph
(a); or(e)anoffencethat,atthetimeitwascommitted,wasanoffence of a kind mentioned in
paragraph (a); or(f)an offence under a law of another
jurisdiction that, if ithadbeencommittedinQueensland,wouldhaveconstitutedanoffencementionedinparagraphs(a)to(e).Note—Column 2 in schedules 6 and 7 is included
for information purposesonly and states a section heading for
the provision mentioned oppositein column
1.(4)For subsection (3), it is immaterial
if a provision mentioned inschedule 6 or 7,
column 1, for an Act has been amended fromtime to time or
that the provision was previously numberedwith a different
number.112Delegation by police commissioner of
power under s 111restrictedDespitethePoliceServiceAdministrationAct1990,section 4.10,thepolicecommissionermaynotdelegatethepolice commissioner’s powers under section
111 other than toa police officer of at least the rank of
superintendent.113Decision by police commissioner that
information isinvestigative information(1)This section applies if—(a)the police commissioner decides that
information abouta person is investigative information;
and(b)the investigative information is
given, under section 117or 130, to the chief executive;
andPage 102Current as at
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 114](c)after the investigative information is
given to the chiefexecutive,anyofthefollowinghappens(relevantevent)—(i)a negative
notice or negative exemption notice isissued to the
person;(ii)theperson’spositivenoticeiscancelledandanegativenoticeornegativeexemptionnoticeissubstituted for it;(iii)the
person’s positive exemption notice is cancelledand a negative
exemption notice is substituted forit;(iv)the person’s
eligibility application is refused.(2)ThepersonmayappealtoaMagistratesCourtaboutthedecisionthatinformation,giventothechiefexecutiveasinvestigative information, is investigative
information.(3)However, an appeal under subsection
(2) may only be madewithin 28 days after the person is
given notice of the relevantevent.(4)The chief executive and police
commissioner must be given acopy of the
notice of appeal.(5)The tribunal does not have
jurisdiction to review a decision ofthepolicecommissionerthatinformationaboutapersonisinvestigativeinformationorthatinformationthatisinvestigative information may be given
to the chief executive.114Court to decide
matters afresh(1)A Magistrates Court hearing an appeal
under section 113 is todecide afresh whether information
given to the chief executiveasinvestigativeinformationaboutapersonisinvestigativeinformation.(2)A
person who is the relevant complainant under section 111mustnotbeaskedorcalledonbytheinvestigatedpersonunder that section to give evidence in
person before the court.Current as at [Not applicable]Page
103
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 115](3)Subsection (2) does not prevent
documentary evidence beingtendered and received in evidence by
the court.(4)Afterhearinganappealundersection 113,thecourtmayconfirm or set aside the decision and the
clerk of the court isto give the appellant notice of the
decision.(5)For subsection (4), the court must
have regard to the mattersthe police commissioner was required
to have regard to underthis Act when the police commissioner
made the decision.115Consequence of decision on
appeal(1)This section applies if a Magistrates
Court hears and decidesanappealagainstthepolicecommissioner’sdecisionundersection 111 that
information given to the chief executive abouta person is
investigative information.(2)Ifthecourtsetsasidethedecisionappealedagainst,theperson may—(a)if
the person was issued a negative notice or negativeexemption notice on the basis of the
information—applyundersection
82tocancelthenegativenoticeornegative exemption notice issued to
the person on thegrounds that the decision to issue the
notice was basedon wrong information; or(b)if
the person’s eligibility application was refused on thebasisoftheinformation—applyundersection 107forthe
chief executive to revoke the refusal on the groundsthe
refusal was based on wrong information.(3)If
the court confirms the decision appealed against—(a)the person who appealed the decision
may apply, within28 days after receiving the notice under
section 114(4)and as otherwise provided under the QCAT
Act, to thetribunal for a review of a decision of the
chief executiveif—(i)the person is
not a disqualified person; andPage 104Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 116](ii)thedecisionisapart5reviewabledecisionasdefined under section 108; and(b)the notice under section 114(4) must
state how, and theperiodwithinwhich,thepersonmayapplyforthereview.(4)If a
person applies under subsection (3)(a) to have a decisionreviewed, 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)inrelationtoanegativenotice—includessubstituteanegative notice after cancelling a positive
notice; and(b)inrelationtoanegativeexemptionnotice—includessubstitute a
negative exemption notice after cancelling apositive
exemption notice.Subdivision 3Obtaining police
information orinformation related to policeinformation about a person116Persons to whom ss 117 and 118
appliesSections117and118applyinrelationtothefollowingpersons—(a)apersonwhohasacurrentpositivenoticeorcurrentpositive
exemption notice;(b)a person about whom the chief
executive has received aprescribednoticeapplicationorexemptionnoticeapplication, if the application has not been
withdrawn;(c)a person who has applied to the chief
executive to cancela negative notice or negative exemption
notice about theperson;Current as at
[Not applicable]Page 105
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 117](d)a person who has applied, under
section 87, to the chiefexecutive to cancel the person’s
positive notice that issuspendedandissueafurtherpositivenoticetotheperson;(e)a
person who has applied, under section 89, to the chiefexecutivetocanceltheperson’spositiveexemptionnoticethatissuspendedandissueafurtherpositiveexemption 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 writtennotice under section 101; and(ii)the application
has not been withdrawn;(g)apersonwhohasaneligibilitydeclaration,iftheeligibility declaration has not
expired;(h)apersonwhohasanegativenoticeornegativeexemption notice
if—(i)thepersonhasmadeanapplicationundersection 109 or 115(3) that has not been
decided; or(ii)an appeal to an
entity has been made in relation toan application
under section 109 or 115(3), and theappeal has not
been decided.117Chief executive may obtain information
from policecommissioner(1)This
section applies to a person mentioned in section 116.(2)Thechiefexecutivemayaskthepolicecommissionerforinformation,orforaccesstothepolicecommissioner’srecords,toenablethechiefexecutivetolearnwhatpoliceinformation
exists, if any, in relation to the person.(3)For
subsection (2), the chief executive’s request may includethe
following information—(a)theperson’snameandanyothernamethatthechiefexecutive
believes the person may use or may have used;Page 106Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 117](b)the person’s gender and date and place
of birth;(c)the person’s address;(d)ifthepersoniscurrentlytheholderofaprescribednotice—any
number or date relevant to the prescribednotice or a
positive notice card;(e)ifthepersoniscurrentlytheholderofanexemptionnotice—any
number or date relevant to the exemptionnotice;(f)whether or not the person is engaged,
or to be engaged,as a volunteer;(g)thebasisonwhichthechiefexecutivemayrequestinformation
about the person, including, for example, byreferencing the
relevant provision of subsection (1).(4)Ifthereispoliceinformationabouttheperson,thechiefexecutivemayaskthepolicecommissionerforabriefdescriptionofthecircumstancesofaconviction,chargeorinvestigative information mentioned in
the police information.(5)The police
commissioner must comply with a request underthissectionunlessthepolicecommissioneris,undersubsection (11),
told not to provide the information.(6)However,thedutyimposedonthepolicecommissionertocomplywitharequestappliesonlytoinformationinthepolicecommissioner’spossessionortowhichthepolicecommissioner has
access.(7)Ifthepolicecommissionergivesthechiefexecutiveinformation under this section about a
person who is or hasbeenarelevantdisqualifiedperson,theinformationmustinclude the following information about the
person—(a)thatthepersonisorhasbeenarelevantdisqualifiedperson;(b)if the person is or has been subject
to a disqualificationorder—thedurationanddetailsofthedisqualificationorder;Current as at [Not applicable]Page
107
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 117]Notauthorised—indicativeonly(c)ifthepersonisorhasbeensubjecttoanoffenderprohibition
order—(i)a brief description of the conduct
that gave rise tothe order; and(ii)thedurationanddetailsoftheorder,includingwhetheritisorwasatemporaryoffenderprohibitionorderorafinaloffenderprohibitionorder.(8)Ifthepolicecommissionergivesthechiefexecutiveinformation under this section about a
person who is or hasbeen the subject of an application for
a disqualification orderor named as the respondent for an
application for an offenderprohibition
order, and the order was not made, the informationmust
include the following information about the person—(a)thatthepersonisorhasbeenthesubjectofanapplication for a disqualification
order or named as therespondent for an application for an
offender prohibitionorder 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 orderandthemagistrateorcourthearingtheapplicationdecidednottomakeanoffenderprohibitiondisqualification
order for the person—the reasons whythe offender
prohibition disqualification order was notmade.(9)Thepolicecommissionerneednotdiscloseinvestigativeinformation
about the person to the chief executive under thissection if the police commissioner is
reasonably satisfied thatgiving the information may do any of
the following—(a)prejudice the investigation of a
contravention or possiblecontravention of the law in a
particular case;(b)enable the existence or identity of a
confidential sourceofinformation,inrelationtotheenforcementoradministration of the law, to be
ascertained;Page 108Current as at
[Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 117](c)endanger a person’s life or physical
safety;(d)prejudicetheeffectivenessofalawfulmethodorprocedureforpreventing,detecting,investigatingordealing with a contravention or possible
contraventionof the law.(10)Ifthepolicecommissionergivesinvestigativeinformationabout the person
to the chief executive under this section, thepolice
commissioner must give notice, in the approved form,to
the person that—(a)thepolicecommissionerhasdecidedthatinformationabout the person
is investigative information; and(b)investigativeinformationhasbeengiventothechiefexecutive.(11)If
the chief executive decides that information requested undersubsection (2) about the person is no longer
required, the chiefexecutive must tell the police commissioner
not to provide theinformation.(12)Informationgiventothepolicecommissionerunderthissectionmustnotbeaccessedordisclosedforanypurposeexceptforapurposeunderthispartoranyotherpurposerelevant to law enforcement.(13)Informationgiventothepolicecommissionerunderthissection must not
be used for any purpose except for a purposeunder this
part.(14)However,subsections (12)and(13)donotapplytoinformation the police commissioner obtained
before the chiefexecutivegavetheinformationtothepolicecommissionerunder this
section.(15)Toremoveanydoubt,itisdeclaredthat,despitetheYouthJusticeAct1992,part9,thepolicecommissionermaydiscloseinformationtowhichthatpartappliestothechiefexecutive for complying with a request under
subsection (2)or (4).Current as at
[Not applicable]Page 109
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 118]Notauthorised—indicativeonly118Obtaining
information from director of publicprosecutions(1)This
section applies to a person mentioned in section 116.(2)If the chief executive becomes aware
that the person has beencharged with or convicted of an
offence, the chief executivemay, by notice,
ask the director of public prosecutions for thefollowing—(a)a
written statement briefly describing the circumstancesof a
charge or conviction for the offence;(b)a
copy or written summary of evidentiary material aboutthe
offence;(c)if a charge for the offence was not
proceeded with—awritten summary of the reasons why the
charge was notproceeded with.(3)Thechiefexecutive’srequestmayincludethefollowinginformation—(a)theperson’snameandanyothernamethechiefexecutive
believes the person may use or have used;(b)the
person’s gender and date and place of birth.(4)Thedirectorofpublicprosecutionsmaycomplywitharequestundersubsection (2)ifthedirectorreasonablybelieves the
statement, copy or summary may help the chiefexecutive in
making a screening decision about the person.(5)However, the director of public prosecutions
must not give thechiefexecutiveacopyorwrittensummaryofevidentiarymaterial about
the offence that relates only to a person otherthan 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 whomthe
request is made(6)The director of public prosecutions
must not give information,or a document containing information,
to the chief executiveunder this section if the director is
reasonably satisfied thatgiving the information may do any of
the following—Page 110Current as at
[Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 118]Notauthorised—indicativeonly(a)prejudice the investigation of a
contravention or possiblecontravention of the law in a
particular case;(b)enable the existence or identity of a
confidential sourceofinformation,inrelationtotheenforcementoradministration of the law, to be
ascertained;(c)endanger a person’s life or physical
safety;(d)prejudicetheeffectivenessofalawfulmethodorprocedureforpreventing,detecting,investigatingordealing with a contravention or possible
contraventionof the law;(e)prejudice a prosecution or another matter
before a court.(7)Thegivingofinformation,oradocumentcontaininginformation,underthissectionbythedirectorofpublicprosecutionsisauthoriseddespiteanyotherActorlaw,includingalawimposinganobligationtomaintainconfidentiality
about the information.Note—Seesection 227forrestrictionsondisclosingorgivingaccesstoinformation or documents obtained
under this part.(8)Withoutlimitingsubsection (7),thissectionappliesdespitetheDirector of Public Prosecutions Act
1984, section 24A.(9)In
this section—evidentiarymaterial,aboutanoffence,meansmaterialcompiled in the
course of the investigation or prosecution ofthe offence,
including, for example, the following—(a)a
summary of the circumstances of the alleged offenceprepared 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 aninterview;Current as at
[Not applicable]Page 111
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 119](e)a report by an expert about the person
alleged to havecommitted the offence.119Obtaining information from chief executive
(correctiveservices)(1)The
chief executive (corrective services) must give the chiefexecutive notice of each person who is or
becomes subject to asexual 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)anyotherinformationthechiefexecutive(correctiveservices)
reasonably considers is necessary for the chiefexecutivetoperformafunctionorexerciseapowerunder this
part.(3)Thechiefexecutive(correctiveservices)andthechiefexecutivemayenterintoawrittenarrangementbywhichnotices are
given under subsection (1).(4)Without limiting subsection (3), the
arrangement may providefor giving the notices
electronically.(5)However,ifnoticesundersubsection (1)aretobegivenelectronically and, under an Act, there is a
limitation on whomay access the information mentioned in the
notices or thepurposesforwhichthatinformationmaybeused,thearrangement must provide for the
limitation.(6)Thedisclosureofinformationbythechiefexecutive(corrective services) under this section is
authoriseddespiteany other Act or
law, including a law imposing an obligationto maintain
confidentiality about the information.Note—Seesection 227forrestrictionsondisclosingorgivingaccesstoinformation or documents obtained
under this part.(7)In this section—Page 112Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 120]chiefexecutive(correctiveservices)meansthechiefexecutive of the
department in which theCorrective ServicesAct
2006is administered.Subdivision
4Obtaining report about person’smental health120Application of sdiv 4(1)This
subdivision applies if—(a)the chief
executive is deciding whether or not there is anexceptional 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 thana serious
offence) relating to or involving a personwith a
disability; and(b)the chief executive reasonably
believes it is necessary toconsiderareportabouttheperson’smentalhealthprepared under
this section for deciding whether or notthere is an
exceptional case for the person.(2)Forsubsection (1)(b),thechiefexecutivemayformthereasonable belief only if—(a)inrelationtothechargeorconvictionmentionedinsubsection (1)(a)—(i)the
matter of the person’s mental state relating tothe offence has
been or was referred to the MentalHealthCourtoranentityofanotherStatewithsimilar
functions to that court; or(ii)acourthasorderedthepersontoundertaketreatment of a
psychiatric nature; or(iii)a court has been
given a report about the person’smentalhealthpreparedbyaregisteredhealthpractitioner; orCurrent as at
[Not applicable]Page 113
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 121](b)thechiefexecutivehas,underthispart,beengivenareportabouttheperson’smentalhealthpreparedbyaregistered
health practitioner.Notauthorised—indicativeonly121Chief executive
may request person to undergoexamination by
registered health practitioner etc.(1)The
chief executive may, by notice, ask the person—(a)toundergoanexaminationbyaregisteredhealthpractitioner nominated by the chief
executive, and anyfurther examination required by the health
practitioner,so that a report about the person’s mental
health can begiven to the chief executive under this
subdivision; and(b)togivethechiefexecutiveconsenttoobtainareportabouttheperson’smentalhealthfromtheregisteredhealth
practitioner who conducts the examination.(2)Thenoticegivenundersubsection
(1)muststatethefollowing—(a)the
reasons for the chief executive’s request;(b)thenameandqualificationsoftheregisteredhealthpractitioner nominated by the chief
executive to conductthe examination;(c)when
and where the examination is to be conducted;(d)thattheregisteredhealthpractitionermayrequiretheperson to undergo further examinations so
that a reportabout the person’s mental health can be
prepared;(e)that,undersection 55(2)(c),thechiefexecutivemusthaveregardtothereportabouttheperson’smentalhealthpreparedunderthissubdivisionindecidingwhetherornotthereisanexceptionalcasefortheperson;(f)thatthepersonmaywithdrawtheperson’sconsenttoemployment screening under this part
or, if the person isan applicant for an eligibility
declaration, the person’seligibility application;Page
114Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 122](g)that, if the person fails to undergo
the examination, andanyfurtherexaminationrequiredbytheregisteredhealth
practitioner, or to give the consent mentioned insubsection (1)(b), either—(i)theperson’sconsenttoscreeningunderthispartmaybewithdrawnundersection
132(4),ortheperson’s
eligibility application may be withdrawnundersection 105,bythechiefexecutivegivingnotice of the
withdrawal under that section; or(ii)thechiefexecutivemaydecidewhetherornotthere is an
exceptional case for the person in theabsenceofareportabouttheperson’smentalhealth.(3)Ifthepersondoesnotcomplywiththechiefexecutive’srequest under
subsection (1), the chief executive may decidewhether or not
there is an exceptional case for the person inthe absence of a
report about the person’s mental health.Note—See
alsosection 105 (in relation to the withdrawal
of an eligibilityapplication)andsection 132(4)(inrelationtothewithdrawalofaprescribed notice application or
exemption notice application).122Nominating registered health practitioner to
conductexaminationThechiefexecutivemaynominatearegisteredhealthpractitioner to conduct an examination under
this subdivisiononly if the chief executive is reasonably
satisfied the healthpractitionerhasthenecessaryqualifications,expertiseorexperience to conduct the
examination.123Registered health practitioner
obtaining information fromMental Health Court(1)This section applies if—(a)the person (charged
person) has been charged with, butnot
convicted of—Current as at [Not applicable]Page
115
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 123]Notauthorised—indicativeonly(i)a serious
offence; or(ii)an offence
(other than a serious offence) relating toor involving a
person with a disability; and(b)the
matter of the charged person’s mental state relatingtotheoffencehasbeenreferredtotheMentalHealthCourt;
and(c)the chief executive is reasonably
satisfied that it may benecessary or desirable for a
registered health practitionerconducting an
examination of the charged person underthis subdivision
to have regard to information mentionedinsubsection (2)forpreparingareportabouttheperson’s mental health.(2)The chief executive may, by notice,
ask the charged person togive the Mental Health Court consent
to give the registeredhealth 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 aboutthe person received in evidence by the
court, including,forexample,amedicalreport,psychiatrist’sreportorexpert report that accompanied the
reference;(d)transcriptsofanyhearingconductedforthereferencethat
the court has directed may be given to a party to thehearing 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, theperson’sconsenttoscreeningunderthispartmaybewithdrawnbythechiefexecutivegivingthepersonnotice of the
withdrawal.(4)Ifthechargedpersongivestheconsent,theMentalHealthCourt may give the information mentioned in
subsection (2)tothechiefexecutiveforgivingittotheregisteredhealthpractitioner.Page 116Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 123]Notauthorised—indicativeonly(5)However, information or documents
given under this sectionmust not include—(a)anyrecordofmaterialgiventothecourtundertheMentalHealthAct2016,section163,orofhowthematerial was taken into account;
or(b)theMentalHealthCourt’sreasonsfortakingmaterialmentionedinparagraph(a) intoaccountornottakingthe material
into account; or(c)the content of an expert report about
a person other thanthe charged person; or(d)informationaboutapersonotherthanthechargedperson the
Mental Health Court reasonably considers isnotrelevanttotheregisteredhealthpractitionerpreparingareportaboutthechargedperson’smentalhealth.(6)Also, the Mental Health Court must not
give information, or adocumentcontaininginformation,underthissectionifthecourt is
reasonably satisfied that giving the information maydo
any of the following—(a)prejudice an
investigation or a matter before the MentalHealth
Court;(b)prejudice the investigation of a
contravention or possiblecontravention of the law in a
particular case;(c)enable the existence or identity of a
confidential sourceofinformation,inrelationtotheenforcementoradministration of the law, to be
ascertained;(d)prejudicetheeffectivenessofalawfulmethodorprocedureforpreventing,detecting,investigatingordealing with a contravention or possible
contraventionof the law;(e)prejudice a prosecution or another matter
before anothercourt;(f)endanger a person’s life or physical
safety;(g)adversely affect a person’s mental
health.Current as at [Not applicable]Page
117
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 124](7)If the chief executive is given
information under this section togive to the
registered health practitioner, the chief executive—(a)mustgivetheinformationtotheregisteredhealthpractitioner as soon as possible; and(b)must not use the information for any
purpose other thangiving it to the registered health
practitioner.(8)Thegivingofinformation underthissectionbytheMentalHealthCourtisauthoriseddespiteanyotherActorlaw,includingalawimposinganobligationtomaintainconfidentiality
about the information.Note—See sections 125
and 227 for restrictions on disclosing or giving accessto
information or documents obtained under this section.(9)Without limiting subsection
(8)—(a)information may be given under this
section even if theinformation can not be disclosed to the
charged personunderaconfidentialityorderundertheMentalHealthAct
2016, section 696; and(b)thissectionappliesinrelationtoanexpert’sreportdespite theMental Health
Act 2016, section 160.(10)A
decision of the Mental Health Court not to give an expertreport about the charged person under this
section does notprevent the chief executive applying under
theMental HealthAct2016,section160(2)forleaveofthecourttogivethereport to the registered health
practitioner.124Registered health practitioner
obtaining information fromMental Health Review Tribunal(1)This section applies if—(a)the person (charged
person) has been charged with, butnot
convicted of—(i)a serious offence; or(ii)an offence
(other than a serious offence) relating toor involving a
person with a disability; andPage 118Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 124]Notauthorised—indicativeonly(b)theMentalHealthReviewTribunalhasreviewedaforensicordertowhichthepersonissubject,ortheperson’s fitness for trial, under
theMentalHealthAct2016, chapter 12,
part 3, 4 or 6; and(c)the chief executive is reasonably
satisfied that it may benecessary or desirable for a
registered health practitionerconducting an
examination of the charged person underthis subdivision
to have regard to information mentionedinsubsection (2)forpreparingareportabouttheperson’s mental health.(2)The chief executive may, by notice,
ask the charged person togive the Mental Health Review Tribunal
consent to give theregistered 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 aboutthechargedpersonreceivedbythetribunalintheproceedingforthereview,including,forexample,areportaboutanexaminationofthepersonbyapsychiatristorotherpersonmentionedintheMentalHealth Act
2016, section 454;(d)transcripts of any hearing conducted for the
review thatthe tribunal has directed may be given to a
party to thehearing 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, theperson’sconsenttoscreeningunderthispartmaybewithdrawnbythechiefexecutivegivingthepersonnotice of the
withdrawal.(4)Ifthepersongivestheconsent,theMentalHealthReviewTribunalmaygivetheinformationmentionedinsubsection (2)tothechiefexecutiveforgivingittotheregistered
health practitioner.Current as at [Not applicable]Page
119
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 124](5)However, information or documents
given under this sectionmust not include—(a)anyrecordofmaterialgiventotheMentalHealthReviewTribunalundertheMentalHealthAct2016,section 155 or 742, or of how the material
was taken intoaccount; or(b)the
Mental Health Review Tribunal’s reasons for takingmaterial mentioned in paragraph (a) into
account or nottaking the material into account; or(c)the content of an expert report about
a person other thanthe charged person; or(d)informationaboutapersonotherthanthechargedperson the
Mental Health Review Tribunal reasonablyconsidersisnotrelevanttotheregisteredhealthpractitionerpreparingareportaboutthechargedperson’s mental
health.(6)Also,theMentalHealthReviewTribunalmustnotgiveinformation, or
a document containing information, under thissection if the
tribunal is reasonably satisfied that giving theinformation may do any of the
following—(a)prejudice a matter before the
tribunal;(b)prejudice the investigation of a
contravention or possiblecontravention of the law in a
particular case;(c)enable the existence or identity of a
confidential sourceofinformation,inrelationtotheenforcementoradministration of the law, to be
ascertained;(d)prejudicetheeffectivenessofalawfulmethodorprocedureforpreventing,detecting,investigatingordealing with a contravention or possible
contraventionof 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 120Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 125](7)If the chief executive is given
information under this section togive to the
registered health practitioner, the chief executive—(a)mustgivetheinformationtotheregisteredhealthpractitioner as soon as possible; and(b)must not use the information for any
purpose other thangiving it to the registered health
practitioner.(8)Thegivingofinformation underthissectionbytheMentalHealth Review
Tribunal is authorised despite any other Act orlaw,includingalawimposinganobligationtomaintainconfidentiality
about the information.Note—See sections 125
and 227 for restrictions on disclosing or giving accessto
information or documents obtained under this section.(9)Withoutlimitingsubsection (8),informationmaybegivenunder this
section even if the information can not be disclosedto
the charged person under a confidentiality order under theMental Health Act 2016, section
722.125Use of information obtained from
Mental Health Court orMental Health Review Tribunal(1)This section applies if the chief
executive gives a registeredhealth
practitioner information or a document about a persongiven to the commissioner—(a)by the Mental Health Court under
section 123; or(b)bytheMentalHealthReviewTribunalundersection
124.(2)The registered health practitioner
must not—(a)make a record of the information or
information in thedocument; or(b)disclose the information or information in
the documentto anyone; or(c)give
anyone access to the document; orCurrent as at
[Not applicable]Page 121
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 126](d)include any details of the
information, or information inthedocument,inthereportabouttheperson’smentalhealth prepared under this
subdivision.Maximum penalty—100 penalty units.126Chief executive may obtain report
about person’s mentalhealth from registered health
practitioner(1)Thissectionappliesifapersongivesthechiefexecutiveconsentasmentionedinsection 121(1)(b)inrelationtoanexamination of the person conducted
under this subdivision.(2)The chief
executive may ask the registered health practitionerwhoconductstheexaminationtogiveareportabouttheperson’smentalhealthtothechiefexecutive,andtheregistered health practitioner may
give the report to the chiefexecutive.(3)The
giving of a report under this section by a registered healthpractitionerisauthoriseddespiteanyotherActorlaw,includingalawimposinganobligationtomaintainconfidentiality
about the examination.Note—Seesection 227forrestrictionsondisclosingorgivingaccesstoinformation or documents obtained
under this part.127Chief executive to bear medical
costs(1)The chief executive must bear the
medical costs for obtainingareportfromaregisteredhealthpractitionerunderthissubdivision.(2)In
this section—medical costs, for obtaining
a report from a registered healthpractitionerunderthissubdivision,meansamountschargedby
the health practitioner to—(a)conduct an examination for preparing the
report; or(b)prepare the report.Page
122Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 128]Subdivision 5Obtaining other
information aboutperson’s mental healthNotauthorised—indicativeonly128Chief executive may obtain particular
information fromMental Health Court(1)This
section applies if—(a)the chief executive is deciding
whether or not there is anexceptional case for a person (charged person) who hasbeen
charged with, but not convicted of—(i)a
serious offence; or(ii)an offence
(other than a serious offence) relating toor involving a
person with a disability; and(b)the
matter of the charged person’s mental state relatingtotheoffencehasbeenreferredtotheMentalHealthCourt;
and(c)the chief executive has the charged
person’s consent toobtaininformationaboutthepersonfromtheMentalHealth Court
under this section.(2)The chief executive may ask the Mental
Health Court for thefollowing (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 aboutthechargedpersonreceivedinevidencebythecourt,including, for
example, a medical report, psychiatrist’sreport or expert
report that accompanied the reference;(d)transcriptsofanyhearingconductedforthereferencethat
the court has directed may be given to a party to thehearing or another person.(3)The Mental Health Court may comply
with the request if thecourtreasonablyconsiderstherequestedinformationmayhelp
the chief executive in deciding whether or not there is anexceptional case for the charged
person.Current as at [Not applicable]Page
123
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 128]Notauthorised—indicativeonly(4)However,theinformationordocumentsgiventothechiefexecutive for complying with the request
must not include—(a)anyrecordofmaterialgiventothecourtundertheMentalHealthAct2016,section163,orofhowthematerial was taken into account;
or(b)theMentalHealthCourt’sreasonsfortakingmaterialmentionedinparagraph(a) intoaccountornottakingthe material
into account; or(c)informationthatcannotbedisclosedtothechargedpersonunderaconfidentialityorderundertheMentalHealth Act
2016, section 696; or(d)the
content of an expert report about a person other thanthe
charged person; or(e)informationaboutapersonotherthanthechargedpersonthattheMentalHealthCourtreasonablyconsiders is not
relevant to the chief executive decidingwhetherornotthereisanexceptionalcaseforthecharged
person.(5)Also, the Mental Health Court must not
give information, or adocument containing information, to
the chief executive underthis section if the court is
reasonably satisfied that giving theinformation may
do any of the following—(a)prejudice an
investigation or a matter before the MentalHealth
Court;(b)prejudice the investigation of a
contravention or possiblecontravention of the law in a
particular case;(c)enable the existence or identity of a
confidential sourceofinformation,inrelationtotheenforcementoradministration of the law, to be
ascertained;(d)prejudicetheeffectivenessofalawfulmethodorprocedureforpreventing,detecting,investigatingordealing with a contravention or possible
contraventionof the law;(e)prejudice a prosecution or another matter
before anothercourt;Page 124Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 129](f)endanger a person’s life or physical
safety;(g)adversely affect a person’s mental
health.(6)Thegivingofinformation underthissectionbytheMentalHealthCourtisauthoriseddespiteanyotherActorlaw,includingalawimposinganobligationtomaintainconfidentiality
about the information.Note—Seesection 227forrestrictionsondisclosingorgivingaccesstoinformation or documents obtained
under this part.(7)Without limiting subsection (6), this
section applies in relationtoanexpert’sreportdespitetheMentalHealthAct2016,section 160.(8)A
decision of the Mental Health Court not to give the chiefexecutive an expert report about the charged
person under thissection does not prevent the chief executive
applying undertheMentalHealthAct2016, section 160(2)
for leave of thecourt to give the report to the chief
executive.129Chief executive may obtain particular
information fromMental Health Review Tribunal(1)This section applies if—(a)the chief executive is deciding
whether or not there is anexceptional case for a person (charged person) who hasbeen
charged with, but not convicted of—(i)a
serious offence; or(ii)an offence
(other than a serious offence) relating toor involving a
person with a disability; and(b)theMentalHealthReviewTribunalhasreviewedaforensicordertowhichthepersonissubject,ortheperson’s fitness for trial, under
theMentalHealthAct2016, chapter 12,
part 3, 4 or 6; and(c)the chief executive has the charged
person’s consent toobtaininformationaboutthepersonfromtheMentalHealth Review
Tribunal under this section.Current as at
[Not applicable]Page 125
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 129]Notauthorised—indicativeonly(2)ThechiefexecutivemayasktheMentalHealthReviewTribunal 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 aboutthechargedpersonreceivedbythetribunalintheproceedingforthereview,including,forexample,areportaboutanexaminationofthepersonbyapsychiatristorotherpersonmentionedintheMentalHealth Act
2016, section 454;(d)transcripts of any hearing conducted for the
review thatthe tribunal has directed may be given to a
party to thehearing or another person.(3)TheMentalHealthReviewTribunalmaycomplywiththerequestifthetribunalreasonablyconsiderstherequestedinformation may
help the chief executive in deciding whetheror not there is
an exceptional case for the charged person.(4)However,theinformationordocumentsgiventothechiefexecutive for complying with the request
must not include—(a)anyrecordofmaterialgiventotheMentalHealthReviewTribunalundertheMentalHealthAct2016,section 155 or 742, or of how the material
was taken intoaccount; or(b)the
tribunal’s reasons for taking material mentioned inparagraph (a) into account or not taking the
material intoaccount; or(c)informationthatcannotbedisclosedtothechargedpersonunderaconfidentialityorderundertheMentalHealth Act
2016, section 722; or(d)the
content of an expert report about a person other thanthe
charged person; or(e)informationaboutapersonotherthanthechargedpersonthattheMentalHealthReviewTribunalreasonablyconsidersisnotrelevanttothechiefPage
126Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 129]executivedecidingwhetherornotthereisanexceptional case for the charged
person.(5)Also,theMentalHealthReviewTribunalmustnotgiveinformation,oradocumentcontaininginformation,tothechief executive under this section if
the tribunal is reasonablysatisfiedthatgivingtheinformationmaydoanyofthefollowing—(a)prejudice a matter before the
tribunal;(b)prejudice the investigation of a
contravention or possiblecontravention of the law in a
particular case;(c)enable the existence or identity of a
confidential sourceofinformation,inrelationtotheenforcementoradministration of the law, to be
ascertained;(d)prejudicetheeffectivenessofalawfulmethodorprocedureforpreventing,detecting,investigatingordealing with a contravention or possible
contraventionof 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)Thegivingofinformation underthissectionbytheMentalHealth Review
Tribunal is authorised despite any other Act orlaw,includingalawimposinganobligationtomaintainconfidentiality
about the information.Note—Seesection 227forrestrictionsondisclosingorgivingaccesstoinformation or documents obtained
under this part.Current as at [Not applicable]Page
127
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 130]Subdivision 6Obtaining
information aboutchanges in police informationNotauthorised—indicativeonly130Notice of change
in police information about a person(1)This
section applies if, for a person in relation to whom any ofthefollowinghappens(therelevantevent),thepolicecommissionerreasonablysuspectsthepersonisapersonmentioned in
section 116(a) to (h)—(a)the person’s
criminal history changes;(b)the police
commissioner decides, under section 111, thatinformationaboutthepersonisinvestigativeinformation(regardlessofwhentheactoromissionrelevant to the investigative information
happened or isalleged to have happened);(c)thepersonbecomes,orisnolonger,arelevantdisqualified
person;(d)the person is named as the respondent
for an applicationfor an offender prohibition order.(2)For a relevant event mentioned in
subsection (1)(a) or (b), thepolicecommissionermaynotifythechiefexecutiveofthefollowing—(a)that
the relevant event has happened;(b)if
subsection (1)(a) applies because the person has beencharged with or convicted of an
offence—(i)theoffencethepersonhasbeenchargedwithorconvicted of; and(ii)the
particulars of the offence; and(iii)the
date of the charge or conviction;(c)ifsubsection (1)(b)applies—abriefdescriptionoftheinvestigative information.(3)For a relevant event mentioned in
subsection (1)(c) or (d), thepolicecommissionermustnotifythechiefexecutiveofthefollowing—Page 128Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 130]Notauthorised—indicativeonly(a)that the relevant event has
happened;(b)ifsubsection
(1)(c)appliesbecausethepersonhasbecome a relevant disqualified person—the
informationmentioned in section 117(7);(c)if subsection (1)(d) applies—the
information mentionedin section 117(8) in relation to the
offender prohibitionorder.(4)Anoticegivenundersubsection
(2)or(3)muststatethefollowing—(a)the
person’s name and any other name that the policecommissioner believes the person may use or
may haveused;(b)the
person’s gender and date and place of birth.(5)The
chief executive may confirm the police commissioner’ssuspicions under subsection (1).(6)Thedutyimposedonthepolicecommissionertoprovideinformation to
the chief executive under this section appliesonly to
information in the police commissioner’s possessionor
to which the police commissioner has access.(7)Ifthepersonisapersontowhomsection
75(1)or77(1)applies,thechiefexecutive,onreceivingnoticeundersubsection (2)
or (3), may write to the person to inform thepersonoftheperson’sobligationsundersections 75(2)and77(2).(8)If
the police commissioner gives investigative information tothechiefexecutiveunderthissection,thepolicecommissioner
must give notice, in the approved form, to thepersonthatinvestigativeinformationhasbeengiventothechief
executive.(9)For a person who does not have a
criminal history, there istakentobeachangeintheperson’scriminalhistoryiftheperson acquires
a criminal history.(10)Toremoveanydoubt,itisdeclaredthat,despitetheYouthJusticeAct1992,part9,thepolicecommissionermayCurrent as at [Not applicable]Page
129
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 131]discloseinformationtowhichthatpartappliestothechiefexecutive under subsection (2) or
(3).Notauthorised—indicativeonlySubdivision 7Other
miscellaneous provisions131Chief executive
to give notice to funded non-governmentservice provider
or NDIS non-government serviceprovider about
making screening decision aboutengaged
person(1)This section applies if—(a)the police commissioner, an engaged
person or anotherpersongivesnoticetothechiefexecutivethatpoliceinformation about the engaged person has
changed; or(b)the chief executive otherwise becomes
aware that policeinformation about the engaged person has
changed.(2)However,thissectiondoesnotapplytoachangeinpoliceinformation
if—(a)the change is that the engaged
person—(i)hasbeenchargedwithorconvictedofadisqualifying offence; or(ii)has become a
relevant disqualified person; or(b)both
of the following apply—(i)thechangeisthattheengagedpersonhasbeennamed as the
respondent in an application for anoffender
prohibition order and the proceeding forthe offender
prohibition order has not ended;(ii)an
application for a prescribed notice or exemptionnoticeabouttheengagedpersonhasbeenmadeunder this part and has not been
decided.(3)Ifthechiefexecutiveconsidersthechangeinpoliceinformation may
be relevant to the engagement of the engagedpersonbyafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovider,thechiefexecutivePage
130Current as at [Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 131]Notauthorised—indicativeonlymustgivenoticetotheserviceproviderstatingthefollowing—(a)the
engaged person’s name and identifying details;(b)thechiefexecutivehasreceivedpoliceinformationabouttheengagedpersonthatthechiefexecutiveconsidersrelevanttotheengagementoftheengagedperson by the
service provider;(c)the chief executive is making a
screening decision aboutthe engaged person;(d)a reminder of the risk management
requirements undersection 49;(e)a
funded non-government service provider or an NDISnon-government service provider may not
terminate theengagementoftheengagedpersonsolelyormainlybecause the
service provider is given a notice under thissection;(f)ifthechangeinpoliceinformationisachangeincriminal history, whether it is a charge or
conviction andwhether or not the charge or conviction is
for a seriousoffence;(g)if
the change in police information is a conviction for aserious offence—(i)thatundersection 70,itisanoffencefortheservice provider
to engage, or continue to engage,the engaged
person at a service outlet of the serviceprovider;
and(ii)the effect of
section 74.(4)Thefundednon-governmentserviceproviderorNDISnon-governmentserviceprovidermustnotterminatetheengagedperson’sengagementorcontinuedengagementsolelyormainlybecausetheserviceproviderisgiventhenotice.(5)This
section does not apply to a sole trader.(6)In
this section—Current as at [Not applicable]Page
131
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 132]engaged personmeans—(a)theholderofapositivenotice,otherthanapositivenotice that is
suspended under section 86; or(b)the
holder of a positive exemption notice, other than apositiveexemptionnoticethatissuspendedundersection 88; or(c)a
person about whom a prescribed notice application orexemption notice application is made if the
applicationhas not been decided or withdrawn.132Withdrawal of engaged person’s consent
to screening(1)This section applies if the chief
executive—(a)hasreceivedanapplicationfromafundednon-governmentserviceprovideroranNDISnon-government
service provider for a prescribed noticeorexemptionnoticeaboutaperson(theengagedperson);
and(b)hasnotyetissuedtheprescribednoticeorexemptionnotice.(2)The engaged person may give a notice
to the chief executivewithdrawing the engaged person’s
consent to screening underthis part.(3)Theengagedpersonistakentohavewithdrawnhisorherconsent to screening under this part
if—(a)the chief executive gives the engaged
person a notice—(i)askingtheengagedpersontoprovide,withinareasonable stated time, stated
information that thechiefexecutivereasonablyneedstoestablishtheengaged person’s identity; and(ii)warningtheengagedpersonthat,iftheengagedperson does not
comply with the request, the chiefexecutive may
give the engaged person a notice ofdeemed
withdrawal; andPage 132Current as at
[Not applicable]
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 132]Notauthorised—indicativeonly(b)theengagedpersondoesnotcomplywiththerequestwithin the
stated time; and(c)the chief executive can not establish
with certainty theengaged person’s identity; and(d)thechiefexecutivegivestheengagedpersonandthefundednon-governmentserviceproviderorNDISnon-governmentserviceprovideranoticeofdeemedwithdrawal
relating to the engaged person.(4)Also, the engaged person is taken to have
withdrawn his orher consent to screening under this part
if—(a)the chief executive gives the engaged
person—(i)anoticeaskingthepersontoprovide,withinareasonablestatedtime,statedinformation,including by way
of a submission, about a statedmatter that the
chief executive reasonably believesis relevant to
the application; or(ii)a notice under
section 121; or(iii)anoticeaskingthepersontogivethenecessaryconsent for
section 123 or 124; or(iv)anoticeaskingthepersontogivethenecessaryconsent for
section 128 or 129; and(b)the notice
includes a warning that, if the engaged persondoesnotcomplywiththenotice,thechiefexecutivemay
give the person a notice of deemed withdrawal; and(c)theengagedpersondoesnotcomplywiththenotice;and(d)thechiefexecutivegivestheengagedpersonandthefundednon-governmentserviceproviderorNDISnon-governmentserviceprovideranoticeofdeemedwithdrawal.(5)Further, the engaged person is taken to have
withdrawn his orher consent to screening under this part
if—(a)thefundednon-governmentserviceproviderorNDISnon-governmentserviceproviderhasgiventhechiefCurrent as at
[Not applicable]Page 133
Disability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 132]Notauthorised—indicativeonlyexecutive notice that the person is no
longer engaged bythe service provider or the chief executive
can not obtaininformation,inwriting,fromtheserviceproviderthatthe person is
engaged by the service provider; and(b)theengagedpersonhasnotgivennoticetothechiefexecutive about
the end of the engagement as requiredunder section
53; and(c)thechiefexecutivegivestheengagedpersonandtheservice provider
a notice of deemed withdrawal relatingto the engaged
person.(6)In addition, the engaged person is
taken to have withdrawn hisor her consent
to screening under this part if—(a)theengagedpersongivesthechiefexecutive,orthechief executive gives the engaged
person, notice that theengaged person is charged with a
disqualifying offence,whether the charge was made before,
when or after theapplication was made; and(b)thechiefexecutivegivestheengagedpersonandthefundednon-governmentserviceproviderorNDISnon-governmentserviceprovideranoticeofdeemedwithdrawal under
this subsection relating to the engagedperson.(7)Additionally for an exemption notice
application, the engagedpersonistakentohavewithdrawnhisorherconsenttoscreening under this part if—(a)theengagedpersongivesthechiefexecutive,orthechief executive gives the engaged
person, notice that theengagedperson’sWWCpositivenoticeissuspendedunder the
Working with Children Act; and(b)thechiefexecutivegivestheengagedpersonandthefundednon-governmentserviceproviderorNDISnon-governmentserviceprovideranoticeofdeemedwithdrawal.(8)Iftheengagedpersonwithdrawshisorherconsenttoscreening under this part before the chief
executive issues aPage 134Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 133]prescribednoticeorexemptionnoticeabouttheengagedperson—(a)the chief executive must not issue the
prescribed noticeor exemption notice; and(b)iftheengagedpersonwithdrawsconsentbygivinganotice to the chief executive and the
engaged person isnot a sole trader, the chief executive must
give notice ofthewithdrawaltothefundednon-governmentserviceprovider or NDIS non-government service
provider.(9)For subsection (5), a funded
non-government service provideror an NDIS
non-government service provider may give noticeto the chief
executive that a stated person—(a)is
engaged, or continues to be engaged, by the serviceprovider; or(b)is
no longer engaged by the service provider.(10)IftheengagedpersonisanNDISnon-governmentserviceprovider who is a sole trader, a notice of
deemed withdrawalgiventothepersonundersubsection(3)(d),(4)(d),(5)(c),(6)(b)or(7)(b)istakentobegivenalsototheNDISnon-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 havewithdrawn his or her consent to screening
under this part.133Compliance with requirement to end, or
not start, aperson’s engagement(1)Thissectionappliesifitwouldbeacontraventionofaprovisionofthispartforafundednon-governmentserviceprovideroranNDISnon-governmentserviceprovidertoengage, or continue to engage, a person
(theengaged person)at a
service outlet of the service provider.(2)Thefundednon-governmentserviceproviderorNDISnon-governmentserviceprovidermustcomplywiththeCurrent as at [Not applicable]Page
135
Notauthorised—indicativeonlyDisability Services Act 2006Part 5
Screening of particular persons engaged by department or particular
funded serviceproviders[s 134]provision despite another Act or law or any
industrial awardor agreement.(3)Thefundednon-governmentserviceproviderorNDISnon-government
service provider does not incur any liabilitybecause,incompliancewiththeprovision,theserviceprovider does
not engage, or continue to engage, the engagedperson at a
service outlet of the service provider.(4)A
person whose positive notice is suspended under section 86,orwhosepositiveexemptionnoticeissuspendedundersection 88,maybeengagedbythefundednon-governmentserviceproviderorNDISnon-governmentserviceproviderother than at a
service outlet of the service provider until thesuspension ends.134Guidelines for dealing with
information(1)The chief executive must make
guidelines, consistent with thisAct,fordealingwithinformationobtainedbythechiefexecutive under this part.(2)The purpose of the guidelines is to
ensure—(a)natural justice is afforded to the
persons about whom theinformation is obtained; and(b)only relevant information is used in
making screeningdecisions; and(c)screening decisions, based on the
information, are madeconsistently.(3)The
chief executive must give a copy of the guidelines to aperson on request.135Use
of information obtained under this part about apersonThe
chief executive must not use information obtained underthis
part about a person, other than for this part.Page 136Current as at [Not applicable]
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 136]136Chief executive must give police
commissioner aperson’s current address(1)The
chief executive must, on written application of the policecommissioner,givethepolicecommissionerinformationabout an address
for a person if—(a)the chief executive has an address for
the person that isdifferenttotheaddressstatedbythepolicecommissioner in the application; and(b)the police commissioner is, under this
part, required togive a notice to the person.(2)Informationgiventothepolicecommissionerunderthissectionmustnotbeused,disclosedoraccessedforanypurpose except to give a notice under
this part to the person.137Disqualification
order(1)This section applies if a person is
convicted of—(a)a disqualifying offence and the court
that convicts theperson does not impose an imprisonment order
for theoffence; or(b)anotherseriousoffencecommittedinrelationto,orotherwise involving, a person with a
disability.(2)The court may, on application by the
prosecutor or on its owninitiative, make an order (disqualification order) in relation
tothe person stating that—(a)thepersonmaynotholdapositivenoticeorpositiveexemptionnotice,orapplyforaprescribednoticeorexemption notice, for a stated period;
or(b)the person may never hold a positive
notice or positiveexemptionnoticeorapplyforaprescribednoticeorexemption notice.(3)However, the court may make the
disqualification order onlyif the court
considers it would not be in the interests of peoplewithadisabilityforthechiefexecutivetoissueapositivenotice or
positive exemption notice to the person.Current as at
[Not applicable]Page 137
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Screening of particular persons engaged by department or particular
funded serviceproviders[s 138](4)Apersonagainstwhomthedisqualificationorderismademay 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
prosecutorincludes—(a)the
Attorney-General; and(b)the director of
public prosecutions; and(c)another person,
other than a police officer, appearing forthe
State.prosecutormeans—(a)in the context of a proceeding before,
or an applicationto,aMagistratesCourt—apoliceofficerorCrownprosecutor;
or(b)otherwise—a Crown prosecutor.138Register of persons engaged by
particular entities or forwhom particular applications are
made(1)Thechiefexecutivemustkeeparegisterwithup-to-dateinformation for
the following—(a)eachpersonengagedbythedepartmentataserviceoutlet of the
department;(b)each person for whom a prescribed
notice application orexemption notice application is
made.(2)Theregistermayincludethemattersdecidedbythechiefexecutive but must include the
following—(a)the person’s name;(b)whether the person is engaged by the
department or by afundednon-governmentserviceprovideroranNDISnon-governmentserviceproviderand,ifthepersonisengaged by a funded non-government
service provider,the service provider’s name;(c)whether the person is a sole
trader;Page 138Current as at
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6 Positive behaviour support and restrictive practices[s
139](d)whetherthepersonhasbeenissuedapositivenotice,negativenotice,positiveexemptionnoticeornegativeexemption
notice;(e)the date of issue of the prescribed
notice or exemptionnotice;(f)iftheperson’sconsenttoscreeningunderpart10istakentohavebeenwithdrawn,thedateofthewithdrawal;(g)if
the person applies for a review of a decision of thechiefexecutiverelatingtoaprescribednoticeorexemptionnotice,thedetailsofthereviewanditsoutcome.(3)Ifafundednon-governmentserviceprovideroranNDISnon-government
service provider proposes to start engaging aperson at a
service outlet of the service provider, the serviceprovidermayapplytothechiefexecutiveintheapprovedform
for information contained in the register.(4)Ifafundednon-governmentserviceprovideroranNDISnon-government
service provider asks the chief executive forinformation
contained in the register, the chief executive mustgive
the service provider the information.Part 6Positive behaviour support andrestrictive practicesDivision 1Preliminary139Purpose of pt 6The purpose of
this part is to protect the rights of adults withan
intellectual or cognitive disability by—(a)statingprinciplestobetakenintoaccountbyfundedserviceprovidersinprovidingdisabilityservicestoCurrent as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
140]thoseadultswithbehaviourthatcausesharmtothemselves or others; and(b)regulatingtheuseofrestrictivepracticesbyfundedserviceprovidersinrelationtothoseadultsinawaythat—(i)has
regard to the human rights of those adults; and(ii)safeguards them and others from harm;
and(iii)maximisestheopportunityforpositiveoutcomesand
aims to reduce or eliminate the need for use ofthe restrictive
practices; and(iv)ensures
transparency and accountability in the useof the
restrictive practices.140Service providers
to which pt 6 applies(1)This part
applies to a funded service provider who providesdisability services to an adult with an
intellectual or cognitivedisability (arelevant service
provider).(2)Subsection (1)
applies subject to theForensic Disability Act2011, section
47.(3)Toremoveanydoubt,thispartappliestoafundedserviceprovider in
relation to the provision of disability services to alladultswithanintellectualorcognitivedisabilityreceivingdisability services from the funded service
provider even if thedisability services are not provided
with the funding received.141Principles for
performing functions etc.(1)This section
applies to a person, including a relevant serviceprovider,whoperformsafunction,orexercisesapower,under this
part.(2)Despite section 17, the person must
have regard to the humanrights principle in performing the
function or exercising thepower.Page 140Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
142]Notauthorised—indicativeonly142Principles for providing disability
services to particularadults(1)Thissectionappliestoanadultwithanintellectualorcognitive disability if the adult’s
behaviour causes harm to theadult or
others.(2)A relevant service provider must
provide disability services tothe adult in a
way that—(a)promotes the adult’s—(i)developmentandphysical,mental,socialandvocational ability; and(ii)opportunities for participation and
inclusion in thecommunity; and(b)responds to the adult’s needs and goals;
and(c)ensures the adult and their family and
friends are givenanopportunitytoparticipateinthedevelopmentofstrategies for the care and support of the
adult; and(d)involves—(i)positivebehavioursupportplanninginformedbyevidence-based best practice; and(ii)theimplementationofstrategies,toproducebehaviouralchange,focussedonskillsdevelopment and
environmental design; and(e)ensurestransparencyandaccountabilityintheuseofrestrictive practices; and(f)recognisesthatrestrictivepracticesshouldonlybeused—(i)whennecessarytopreventharmtotheadultorothers; and(ii)if
the use is the least restrictive way of ensuring thesafety of the adult or others; and(g)recognises that restrictive practices
should not be usedpunitivelyorinresponsetobehaviourthatdoesnotcause harm to the adult or others;
andCurrent as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
143](h)aims to reduce the intensity,
frequency and duration oftheadult’sbehaviourthatcausesharmtotheadultorothers; and(i)aims
to reduce or eliminate the need to use restrictivepractices; and(j)ifthereisapositivebehavioursupportplanfortheadult—ensuresrestrictivepracticesareonlyusedconsistent with the plan.Note—Harm to a person
includes physical harm to the person and a seriousrisk
of physical harm to the person. See section 144, definitionharm.143Explanation of operation of pt
6(1)Thepurposeofthissectionistoexplaingenerallythecircumstancesinwhicharelevantserviceprovidermaybeauthorisedunderthisparttousearestrictivepracticeinrelation to an adult with an
intellectual or cognitive disability.(2)Useoftherestrictivepracticemaybeauthorisedifthefollowing are satisfied—(a)for containment or seclusion, or an
associated restrictivepractice—(i)apositivebehavioursupportplanispreparedforthe
adult by the chief executive; and(ii)useoftherestrictivepracticeisapprovedbythetribunal;(b)for
any other restrictive practice—(i)apositivebehavioursupportplanispreparedforthe
adult by the relevant service provider; and(ii)use
of the restrictive practice is consented to by aguardian for a restrictive practice
(general) matterfortheadultor,insomecases,aninformaldecision-maker
for the adult;(c)forallrestrictivepractices,useoftherestrictivepractice—Page
142Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
144](i)isnecessarytopreventtheadult’sbehaviourcausing harm to the adult or others;
and(ii)is the least
restrictive way of ensuring the safety ofthe adult or
others; and(iii)complies with
the positive behaviour support planfor the
adult.Note—Some other
requirements must also be complied with for the relevantservice provider to be authorised to use the
restrictive practice. Seesection 151 (for containment or
seclusion) or 166 (for use of otherrestrictive
practices).(3)Also, use of a restrictive practice
may be authorised if—(a)the restrictive
practice is used in the course of providingrespiteservicesorcommunityaccessservicestotheadult; or(b)thereisanimmediateandseriousriskofharmtotheadult or others.Note—See—•sections 152, 167 and 168 for use of
restrictive practices in thecourse of
providing respite services or community access services•sections 153 and 170 for use of
restrictive practices if there is animmediate and
serious risk of harm to the adult or others.(4)In
this section—associatedrestrictivepracticemeansarestrictivepracticeother than containment or seclusion,
relating to the adult whois the subject of a containment or
seclusion approval.144Definitions for pt 6In
this part—adultwithanintellectualorcognitivedisabilitymeansanadult with a disability who has a
condition attributable to anintellectual or
cognitive impairment, or a combination of theimpairments.Current as at
[Not applicable]Page 143
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Positive behaviour support and restrictive practices[s
144]appropriately qualifiedsee section
149.assessmentsee section
148(3).authorisedpsychiatristseetheMentalHealthAct2016,schedule 3.chemical
restraintsee section 145.chemicalrestraint(fixeddose)meanschemicalrestraintusingmedicationthatisadministeredatfixedintervalsandtimes.chief
psychiatristsee theMental Health
Act 2016, schedule 3.communityaccessservicesmeansdisabilityservicesthatare—(a)community access services provided to
an adult with anintellectual or cognitive disability who
does not receivedisabilityservicesotherthanrespiteservicesorcommunityaccessservicesfromarelevantserviceprovider; and(b)funded as community access services by the
departmentor the Commonwealth.containsee
section 146.containment or seclusion approvalmeans approval given bythe tribunal
under the GAA, chapter 5B, part 2 for a relevantserviceprovidertocontainorseclude,oruseanotherrestrictive
practice in relation to, an adult with an intellectualor
cognitive disability.decision notice, for a decision
of the chief executive, means anotice stating
the following—(a)the decision and the reasons for
it;(b)that the person to whom the notice is
given may applyfor review of the decision under section 187
within 28days after the person receives the
notice;(c)how to apply for review of the
decision.GAAmeans theGuardianship and
Administration Act 2000.Page 144Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
144]Notauthorised—indicativeonlyguardianforarestrictivepractice(general)matter,foranadultwithanintellectualorcognitivedisability,meansaguardian for a restrictive practice
(general) matter appointedfor the adult under the GAA, chapter
5B.guardian for a restrictive practice
matter, for an adult with anintellectualorcognitivedisability,meansaguardianforarestrictivepractice(general)matter,oraguardianforarestrictive
practice (respite) matter, for the adult.guardianforarestrictivepractice(respite)matter,foranadultwithanintellectualorcognitivedisability,meansaguardian for a restrictive practice
(respite) matterappointedfor the adult
under the GAA, chapter 5B.harmto 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 physicalharm to the person.informal
decision-maker, for an adult with an intellectual
orcognitive disability, means a member of the
adult’s supportnetwork,otherthanapaidcarerfortheadultwithinthemeaning of the GAA.least
restrictive, for use of a restrictive practice in
relation toan adult with an intellectual or cognitive
disability, means useof the restrictive practice—(a)ensures the safety of the adult or
others; and(b)having regard to paragraph (a),
imposes the minimumlimits on the freedom of the adult as is
practicable in thecircumstances.mechanical
restraintsee section 147.model positive
behaviour support planmeans a plan of thatnamepreparedbythechiefexecutiveandpublishedonthedepartment’s website.multidisciplinary assessmentsee
section 148(4).Current as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
144]physical restraint, of an adult
with an intellectual or cognitivedisability,meanstheuse,fortheprimarypurposeofcontrollingtheadult’sbehaviour,ofanypartofanotherperson’sbodytorestrictthefreemovementoftheadultinresponse to the adult’s behaviour that
causes harm to the adultor others.Note—Harm
to a person includes physical harm to the person and a
seriousrisk of physical harm to the person. See
section 144, definitionharm.positive behaviour support plansee
section 150.relevantdecision-maker(respite),foranadultwithanintellectual or cognitive disability,
means—(a)a guardian for a restrictive practice
(respite) matter forthe adult; or(b)forarestrictivepracticeotherthanchemicalrestraintusedundersection 167,ifthereisnoguardianforarestrictivepractice(respite)matterfortheadult—aninformal decision-maker for the
adult.respite/community access plansee
section 181(2).respite servicesmeans disability
services that are—(a)respite services provided to an adult
with an intellectualorcognitivedisabilitywhodoesnotreceivedisabilityservices other
than respite services or community accessservices from a
relevant service provider; and(b)fundedasrespiteservicesbythedepartmentortheCommonwealth.restricting
access, of an adult with an intellectual or
cognitivedisability,meansrestrictingtheadult’saccess,ataplacewheretheadultreceivesdisabilityservices,toanobjectinresponse to the adult’s behaviour that
causes harm to the adultor others to prevent the adult using
the object to cause harm tothe adult or
others.Page 146Current as at
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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 usingthe knives to cause harm•if an adult has Prader-Willi syndrome,
restricting the adult’s accessto a particular
cupboard or particular parts of the fridge to preventthe
adult eating in a way that is likely to harm the adultNote—Harm to a person
includes physical harm to the person and a seriousrisk
of physical harm to the person. See section 144, definitionharm.restrictive practicemeans any of the
following practices usedto respond to the behaviour of an
adult with an intellectual orcognitive
disability that causes harm to the adult or others—(a)containing or secluding the
adult;(b)using chemical, mechanical or physical
restraint on theadult;(c)restricting access of the adult.Note—Harm to a person
includes physical harm to the person and a seriousrisk
of physical harm to the person. See section 144, definitionharm.secludeanadultwithanintellectualorcognitivedisabilitymeans physically
confine the adult alone, at any time of thedayornight,inaroomorareafromwhichfreeexitispreventedinresponsetotheadult’sbehaviourthatcausesharm
to the adult or others.Note—Harm to a person
includes physical harm to the person and a seriousrisk
of physical harm to the person. See section 144, definitionharm.short term approvalmeans 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]145Meaning ofchemical
restraint(1)Chemicalrestraint,ofanadultwithanintellectualorcognitivedisability,meanstheuseofmedicationfortheprimarypurposeofcontrollingtheadult’sbehaviourinresponse to the adult’s behaviour that
causes harm to the adultor others.Note—Harm
to a person includes physical harm to the person and a
seriousrisk of physical harm to the person. See
section 144, definitionharm.(2)However, the following are not
chemical restraint—(a)usingmedicationforthepropertreatmentofadiagnosed mental
illness or physical condition;(b)using medication, for example a sedative,
prescribed bya medical practitioner to facilitate or
enable the adult toreceive 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 chemicalrestraint(3)Toremoveanydoubt,itisdeclaredthatanintellectualorcognitive disability is not a physical
condition.(4)In this section—diagnosed,
for a mental illness or physical condition, means adoctor confirms the adult has the illness or
condition.mental illnesssee theMental Health Act 2016, section
10.146Meaning ofcontain(1)Containan adult with an
intellectual or cognitive disabilitymeansphysicallypreventthefreeexitoftheadultfrompremiseswheretheadultreceivesdisabilityservices,otherthanbysecludingtheadult,inresponsetotheadult’sbehaviour that
causes harm to the adult or others.Note—Harm
to a person includes physical harm to the person and a
seriousrisk of physical harm to the person. See
section 144, definitionharm.Page
148Current as at [Not applicable]
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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 bythe
locking of gates, doors or windows under that part.(3)In this section—premisesincludesthelandaroundabuildingorotherstructure, but
does not include a vehicle.147Meaning ofmechanical restraint(1)Mechanicalrestraint,ofanadultwithanintellectualorcognitive disability, means the use, for the
primary purpose ofcontrolling the adult’s behaviour, of a
device in response tothe adult’s behaviour that causes harm
to the adult or othersto—(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 seriousrisk
of physical harm to the person. See section 144, definitionharm.(2)However, the following are not
mechanical restraint—(a)using a device
to enable the safe transportation of theadult;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 bodilymovements, such as seizures;(d)usingasurgicalormedicaldeviceforthepropertreatment of a physical condition;Current as at [Not applicable]Page
149
Disability Services Act 2006Part 6
Positive behaviour support and restrictive practices[s
148](e)usingbedrailsorguardstopreventinjurywhiletheadult is asleep.Notauthorised—indicativeonlyDivision 2Important
concepts for usingrestrictive practices148Assessment of an adult(1)Before a restrictive practice can be used in
relation to an adultwith an intellectual or cognitive
disability, the adult must beassessed.(2)However,anassessmentisnotrequirediftherestrictivepractice is
used—(a)under a short term approval; or(b)in the course of providing respite
services or communityaccess services to the adult.Note—Althoughanassessmentisnotrequiredforusingrestrictivepracticesinthecourseofprovidingrespiteservicesorcommunityaccessservices,relevantserviceprovidersmustcomply with
division 5.(3)For this part, anassessmentof an adult with
an intellectual orcognitive disability is an assessment by 1
or more persons, asprovidedforundersubsections
(4)to(6),forthefollowingpurposes—(a)makingfindingsaboutthenature,intensity,frequencyanddurationofthebehaviouroftheadultthatcausesharm to the
adult or others;(b)developing theories about the factors
that contribute tothe adult’s behaviour mentioned in paragraph
(a);Examples of factors that might contribute to
the behaviour—•biological factors, such as genetic
predispositions•psychologicalorcognitivefactors,suchaslowcommunication skills•social factors, such as the adult’s
surroundingsPage 150Current as at
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6 Positive behaviour support and restrictive practices[s
149]•medical conditions(c)makingrecommendationsaboutappropriatestrategiesfor—(i)meetingtheadult’sneedsandimprovingtheadult’s capabilities and quality of life;
and(ii)reducingtheintensity,frequencyanddurationofthe
adult’s behaviour that causes harm to the adultor others;
and(iii)managing the
adult’s behaviour that causes harm tothe adult or
others to minimise the risk of harm.(4)Forcontainingorsecludinganadultundersection 151,theadult must be assessed by 2 or more
appropriately qualifiedpersonswhohavequalificationsorexperienceindifferentdisciplines
(amultidisciplinary assessment).(5)Forusingchemical,mechanicalorphysicalrestraintundersection 166 on
an adult, the adult must be assessed by at least1
appropriately qualified person.(6)For
restricting access of an adult under section 166, the adultmust
be assessed by the relevant service provider proposing torestrict the adult’s access.149Who isappropriately
qualifiedto assess an adultForassessinganadultwithanintellectualorcognitivedisability, a
person isappropriately qualifiedif the person
hasthequalificationsorexperienceappropriatetoconducttheassessment.Examples of who
might be appropriately qualified persons—behaviour
analysts, medical practitioners, psychologists,
psychiatrists,speech and language pathologists,
occupational therapists, registerednurses, social
workersCurrent as at [Not applicable]Page
151
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Positive behaviour support and restrictive practices[s
150]150What is apositive
behaviour support plan(1)Apositivebehavioursupportplan,foranadultwithanintellectual or cognitive disability,
is a plan that describes thestrategies to be
used to—(a)meet the adult’s needs; and(b)support the adult’s development of
skills; and(c)maximiseopportunitiesthroughwhichtheadultcanimprove their quality of life; and(d)reducetheintensity,frequencyanddurationoftheadult’s behaviour that causes harm to
the adult or others.(2)Apositivebehavioursupportplan,foranadultwithanintellectual or cognitive disability, must
include at least eachof the following—(a)inrelationtopreviousbehaviouroftheadultthathascaused harm to the adult or others, a
description of—(i)theintensity,frequencyanddurationofthebehaviour; and(ii)the
consequences of the behaviour; and(iii)theearlywarningsignsandtriggersforthebehaviour, if known;(b)thepositivestrategiesthatmustbeattemptedbeforeusingarestrictivepractice,includingthecommunityaccess
arrangements in place for the adult;(c)foreachrestrictivepracticeproposedtobeusedinrelation to the adult—(i)the
circumstances in which the restrictive practiceis to be used;
and(ii)ademonstrationofwhyuseoftherestrictivepractice is the
least restrictive way of ensuring thesafety of the
adult or others; and(iii)theprocedureforusingtherestrictivepractice,includingobservationsandmonitoring,thatmustPage 152Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
150]happen while the restrictive practice is
being used;and(iv)anyothermeasuresthatmusthappenwhiletherestrictive practice is being used
that are necessaryto ensure—(A)the
adult’s proper care and treatment; and(B)the
adult is safeguarded from abuse, neglectand
exploitation; and(v)adescriptionoftheanticipatedpositiveandnegative effects on the adult of using
the restrictivepractice; and(vi)the
intervals at which use of the restrictive practicewill
be reviewed by the relevant service providerusing the
restrictive practice;(d)for
seclusion—the maximum period for which seclusionmay
be used at any 1 time and the maximum frequencyof the
seclusion;(e)for chemical restraint—(i)thenameofthemedicationtobeusedandanyavailableinformationaboutthemedication,including, for
example, information about possibleside effects;
and(ii)thedose,routeandfrequencyofadministration,including, for
medication to be administered as andwhenneeded,thecircumstancesinwhichthemedication may be administered, as
prescribed bythe adult’s treating doctor; and(iii)iftheadult’smedicationhaspreviouslybeenreviewed by the adult’s treating doctor—the
date ofthe most recent medication review;
and(iv)the name of the
adult’s treating doctor;(f)formechanicalorphysicalrestraint—themaximumperiod for which the restraint may be used
at any 1 time.Current as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
151](3)For subsection (2)(c)(vi), use of a
restrictive practice must bereviewed—(a)for a restrictive practice not used
under a containment orseclusion approval—at least once
during each 12-monthperiod; or(b)forarestrictivepracticeusedunderacontainmentorseclusionapproval—whenrequiredbythechiefexecutive,andatleastonceduringtheperiodoftheapproval.Division 3Containment and seclusionSubdivision 1Requirements for
containing orsecluding an adult151Containing or secluding an adult under
containment orseclusion approval(1)A
relevant service provider may contain or seclude an adultwith
an intellectual or cognitive disability if—(a)the
containment or seclusion is necessary to prevent theadult’sbehaviourcausingharm totheadultorothers;and(b)the containment or seclusion is the
least restrictive wayof ensuring the safety of the adult or
others; and(c)the containment or seclusion complies
with—(i)a containment or seclusion approval;
and(ii)ifthecontainmentorseclusionapprovalisnotgivenasaninterimorderundertheGAA,section
80ZR—apositivebehavioursupportplanfortheadultdevelopedbythechiefexecutiveunder this division; and(d)the
relevant service provider complies with section 165.Page
154Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
152](2)For subsection (1)(c)(ii), the adult
is not contained or secludedin compliance
with the positive behaviour support plan if therelevantserviceproviderdoesnotimplementthepositivestrategies
stated in the plan.(3)Itisnotnecessarytoobtaintheadult’sconsenttothecontainment or
seclusion of the adult under this section.152Containing or secluding an adult for respite
services orcommunity access services(1)A relevant service provider may
contain or seclude an adultwithanintellectualorcognitivedisabilityinthecourseofproviding respite services or community
access services to theadult if—(a)the
containment or seclusion is necessary to prevent theadult’sbehaviourcausingharm totheadultorothers;and(b)the containment or seclusion is the
least restrictive wayof ensuring the safety of the adult or
others; and(c)beforecontainingorsecludingtheadult,therelevantservice provider
complies with the requirements underdivision 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 containedor secluded in
compliance with the respite/community accessplan if the
relevant service provider does not implement thepositive strategies stated in the
plan.(3)Thissectiondoesnotapplyiftheadultisthesubjectofacontainment or seclusion
approval.Current as at [Not applicable]Page
155
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Positive behaviour support and restrictive practices[s
153]153Containing or secluding an adult under
short termapproval(1)A
relevant service provider may contain or seclude an adultwith
an intellectual or cognitive disability if—(a)thereisanimmediateandseriousriskofharmtotheadult or others; and(b)the containment or seclusion is
necessary to prevent theadult’sbehaviourcausingharm totheadultorothers;and(c)the containment or seclusion is the
least restrictive wayof ensuring the safety of the adult or
others; and(d)the containment or seclusion complies
with a short termapproval given by the public guardian under
the GAA,chapter 5B, part 4; and(e)the
relevant service provider complies with section 165.(2)Itisnotnecessarytoobtaintheadult’sconsenttothecontainment or
seclusion of the adult under this section.154Containing or secluding an adult before
decision onshort term approval(1)A
relevant service provider may contain or seclude an adultwith
an intellectual or cognitive disability if—(a)therelevantserviceproviderhasaskedthepublicguardian,inwriting,foranapprovalundertheGAA,chapter 5B, part
4 to contain or seclude the adult and therequest has not
been decided; and(b)the containment or seclusion—(i)isnecessarytopreventtheadult’sbehaviourcausing harm to the adult or others;
and(ii)is the least
restrictive way of ensuring the safety ofthe adult or
others; andPage 156Current as at
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6 Positive behaviour support and restrictive practices[s
155](c)apositivebehavioursupportplanorarespite/communityaccessplanfortheadultisbeingimplemented;
and(d)the relevant service provider complies
with section 165.(2)However, the relevant service provider
may only contain orseclude the adult until the earlier of the
following—(a)the relevant service provider is given
notice about thepublic guardian’s decision on the
request;(b)30 days after the relevant service
provider asks for theshort term approval.(3)Itisnotnecessarytoobtaintheadult’sconsenttothecontainment or
seclusion of the adult under this section.Subdivision
2Multidisciplinary assessment anddevelopment of positive behavioursupport plan155Application of sdiv 2This subdivision
applies if—(a)a relevant service provider notifies
the chief executivethat the relevant service provider wishes to
contain orsecludeanadultwithanintellectualorcognitivedisability,
other than in the course of providing respiteservices or
community access services to the adult; and(b)the
adult is not the subject of a containment or seclusionapproval.Notes—1Under the GAA, chapter 5B, a relevant
service provider other thanthe department
must apply for a containment or seclusion approvaljointly with the chief executive.2If the adult is the subject of an
existing containment or seclusionapproval,seesubdivision3forchangingtheadult’spositivebehaviour support plan.Current as at
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156]Notauthorised—indicativeonly156Chief executive
to decide whether multidisciplinaryassessment of
adult will be conducted(1)The chief
executive must decide whether a multidisciplinaryassessment of the adult will be
conducted.(2)Thechiefexecutivemaydecideamultidisciplinaryassessmentoftheadultwillbeconductedifthechiefexecutiveconsidersitmaybenecessaryfortherelevantservice provider to contain or seclude the
adult to safeguardthe adult or others from harm.(3)Indecidingwhetheramultidisciplinaryassessmentoftheadult 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)eachrelevantserviceproviderprovidingdisabilityservices to the
adult;(d)if the chief executive is aware the
adult is subject to aforensicorder,treatmentsupportorderortreatmentauthorityundertheMentalHealthAct2016—theauthorised psychiatrist responsible for
treating the adultunder that Act;(e)ifthechiefexecutiveisawaretheadultisaforensicdisabilityclient—aseniorpractitionerresponsibleforthecareandsupportoftheadultundertheForensicDisability Act
2011;(f)any other person
considered by the chief executive to beintegral to the
chief executive’s decision.Example—a
family member who is part of the adult’s support network, akey
health care provider or an advocate for the adult(4)Despite subsection (3)(b), the chief
executive is not requiredto consult with a person who is an
informal decision-makerfor the adult if—Page 158Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
157](a)the chief executive is not, and could
not reasonably beexpectedtobe,awarethepersonisaninformaldecision-maker
for the adult; or(b)after taking all reasonable steps, the
chief executive cannot locate the person.157Notice of decision not to conduct
assessmentIf the chief executive decides a
multidisciplinary assessmentof the adult
will not be conducted, the chief executive mustgivethefollowingpersonsadecisionnoticeaboutthedecision—(a)the
relevant service provider;(b)the
adult;(c)a guardian or informal decision-maker
for the adult whowasconsultedbythechiefexecutiveundersection
156(3).158Development of positive behaviour
support planfollowing assessment(1)This
section applies if a multidisciplinary assessment of theadult is conducted.(2)The
chief executive must develop a positive behaviour supportplan
for the adult if, having regard to the findings, theories
andrecommendations of the persons who assessed
the adult, thechief executive is satisfied—(a)the adult’s behaviour has previously
resulted in harm tothe adult or others; and(b)itisnecessaryfortherelevantserviceprovidertocontainorsecludetheadulttosafeguardtheadultorothers from harm; and(c)containing or secluding the adult is the
least restrictiveway of ensuring the safety of the adult or
others.Current as at [Not applicable]Page
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158]Notauthorised—indicativeonly(3)The positive
behaviour support plan must provide for the useof any
restrictive practice, including chemical, mechanical orphysical restraint or restricting access,
that is—(a)whentheplanisdeveloped,proposedtobeusedinrelationtotheadultbyanyrelevantserviceprovider;and(b)basedontherecommendationsofthepersonswhoassessed the adult.(4)In
developing the positive behaviour support plan, the chiefexecutive must—(a)have
regard to a model positive behaviour support plan;and(b)consultwith,andconsidertheviewsof,eachpersonwho
was consulted under section 156(3).(5)If
the positive behaviour support plan provides for the use ofchemical restraint, the chief executive
must—(a)consult the adult’s treating doctor;
and(b)inform the adult’s treating doctor
about—(i)thefindingsandtheoriesofthepersonswhoconductedthemultidisciplinaryassessmentaboutthe
adult’s behaviour that causes harm to the adultor others,
including the factors contributing to thebehaviour;
and(ii)the strategies,
including other restrictive practices,proposed to be
used for—(A)meeting the adult’s needs and
improving theadult’s capabilities and quality of life;
and(B)reducingtheintensity,frequencyandduration of the adult’s behaviour that
causesharm to the adult or others.(6)Ifthechiefexecutiveisnotrequiredtodevelopapositivebehaviour
support plan for the adult under subsection (2), thechiefexecutivemustgivethefollowingpersonsadecisionnotice about the
decision not to develop the plan—Page 160Current as at [Not applicable]
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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 whowas
consulted under section 156(3).Notauthorised—indicativeonly159Participation of psychiatrist or
senior practitioner indevelopment of plan(1)This section applies if—(a)the chief executive is aware the adult
is—(i)subject to a forensic order, treatment
support orderor treatment authority under theMental Health Act2016;
or(ii)a forensic
disability client; and(b)thechiefexecutivedevelopsapositivebehavioursupport plan for the adult under this
division.(2)The chief executive must ensure a
following person is giventheopportunitytoparticipateinthedevelopmentofthepositive behaviour support
plan—(a)foranadultmentionedinsubsection (1)(a)(i)—theauthorised psychiatrist responsible for
treating the adultunder theMental Health
Act 2016;(b)for an adult
mentioned in subsection (1)(a)(ii)—a seniorpractitioner
responsible for the care and support of theadult under
theForensic Disability Act 2011.Subdivision 3Changing a
positive behavioursupport plan160Application of sdiv 3Thissubdivisionappliesifanadultwithanintellectualorcognitivedisabilityisthesubjectofacontainmentorseclusion approval.Current as at
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161]161Who may change positive behaviour
support planThepositivebehavioursupportplanfortheadultmaybechanged only by
the chief executive.Notauthorised—indicativeonly162When chief
executive must decide whether positivebehaviour support
plan should be changedThechiefexecutivemustdecidewhetherachangetotheadult’s positive behaviour support
plan should be made if—(a)a relevant
service provider asks the chief executive, inwriting, to make
a change to the plan; or(b)the chief
executive becomes aware the adult is subject toaforensicorder,treatmentsupportorderortreatmentauthority under
theMental 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 practicein
relation to the adult, including chemical, mechanical or
physicalrestraint or restricting access.•Therelevantserviceprovidertowhichthecontainmentorseclusion approval applies wants to change a
detail stated in thepositive behaviour support plan for
the adult.•The containment or seclusion approval
is about to expire and therelevant service provider to which the
approval applies wishes toapply for a new approval.163Requirements for chief executive’s
decision aboutwhether change should be made(1)The chief executive may decide a
change should be made tothe adult’s positive behaviour support
plan only if satisfied thechange would not—(a)increase the risk of the adult’s behaviour
causing harmto the adult or others; or(b)decrease the extent to which the
adult’s needs are met orthe adult’s capabilities and quality
of life are improved.(2)Fordecidingwhetherachangeshouldbemade,thechiefexecutivemayarrangeforallorpartofamultidisciplinaryPage 162Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
164]assessmenttobeconducted,orconsultanyofthepersonslistedinsection 156(3),asthechiefexecutiveconsidersappropriate in
the circumstances.(3)However, if the chief executive is
deciding whether a changeshouldbemadebecausetheadultissubjecttoaforensicorder, treatment
support order or treatment authority under theMental Health
Act 2016, the chief executive must consult
theauthorised psychiatrist responsible for
treating the adult underthat Act.(4)Also,ifthechiefexecutiveisdecidingwhetherachangeshouldbemadebecausetheadultisaforensicdisabilityclient, the
chief executive must consult a senior practitionerresponsibleforthecareandsupportoftheadultundertheForensic Disability Act 2011.(5)Subsection (2) applies subject to any
order or direction of thetribunal.164Action of chief executive after deciding
whether changeshould be made(1)If
the chief executive decides a change to the adult’s positivebehaviour support plan should be made, the
chief executivemust decide whether the change requires a
GAA applicationto be made.(2)The
change requires the making of a GAA application if it—(a)is inconsistent with the terms of an
existing containmentor seclusion approval; orExamples—•The
existing containment or seclusion approval approvesseclusionforperiodsofnotmorethan15minutes.Thechange is to increase the maximum period to
30 minutes.•The existing containment or seclusion
approval applies torelevantserviceproviderA.Thechangeisforrelevantservice provider
B to use a restrictive practice in relation tothe
adult.Current as at [Not applicable]Page
163
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164]Notauthorised—indicativeonly•Theexistingcontainmentorseclusionapprovalisforseclusion.Thechangeisfortheadditionaluseofmechanical restraint.(b)isrequestedbecauseanexistingcontainmentorseclusionapprovalisabouttoexpireandtherelevantserviceproviderproposestoapplyforafurtherapproval.(3)IfthechangedoesnotrequirethemakingofaGAAapplication,thechiefexecutivemustmakethechangeandgive
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)therelevantserviceprovidertowhichanexistingcontainment or
seclusion approval applies.(4)However, the chief executive is not required
to give a copy oftheamendedplantoapersonwhoisaninformaldecision-maker
for the adult if—(a)the chief executive is not, and could
not reasonably beexpectedtobe,awarethepersonisaninformaldecision-maker
for the adult; or(b)after taking all reasonable steps, the
chief executive cannot locate the person.(5)As
soon as practicable after making the decision mentioned insubsection (1),thechiefexecutivemustgiveaprescribednotice
to—(a)if the chief executive was required to
decide whether achange should be made because of a request
made by arelevant service provider—the relevant
service provider;orNote—If the chief
executive decides the change should not be made andthe
relevant service provider is dissatisfied with the decision,
therelevant service provider could apply to the
tribunal under thePage 164Current as at
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6 Positive behaviour support and restrictive practices[s
164]GAA, section 80ZA for review of the existing
containment orseclusion approval.(b)if
the chief executive was required to decide whether achange should be made because the adult is
subject to aforensicorder,treatmentsupportorderortreatmentauthorityundertheMentalHealthAct2016,orisaforensic disability client—(i)the relevant director; and(ii)the relevant
service provider to which an existingcontainment or
seclusion approval applies.(6)In
this section—GAA applicationmeans 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
noticemeans a notice stating the chief
executive’sdecisions about—(a)whetherachangeshouldbemadetothepositivebehaviour
support plan for the adult; and(b)ifthechiefexecutivedecidesachangeshouldbemade—whetherthechangerequiresthemakingofaGAA application.relevant
directormeans—(a)if
the adult is a forensic disability client—the director offorensic disability; or(b)otherwise—the chief psychiatrist.Current as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
165]Subdivision 4General
requirements forcontainment or seclusionNotauthorised—indicativeonly165Relevant service
provider to ensure adult’s needs are metA relevant
service provider containing or secluding an adultwithanintellectualorcognitivedisabilitymustensuretheadult 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 4Use of
restrictive practices otherthan containment
or seclusionSubdivision 1Requirements for
using chemical,mechanical or physical restraint, orrestricting access166Using
chemical, mechanical or physical restraint, orrestricting
access, with consent of guardian etc.(1)A
relevant service provider may use chemical, mechanical orphysicalrestrainton,orrestrictaccessof,anadultwithanintellectual or cognitive disability
if—(a)use of the restrictive practice is
necessary to prevent theadult’sbehaviourcausingharm totheadultorothers;and(b)use of the restrictive practice is the
least restrictive wayof ensuring the safety of the adult or
others; and(c)either—Page 166Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
167](i)iftheadultisthesubjectofacontainmentorseclusion approval—use of the restrictive
practicecomplies with—(A)the
approval; and(B)ifthecontainmentorseclusionapprovalisnot given as an interim order under
the GAA,section 80ZR—a positive behaviour
supportplanfortheadultdevelopedbythechiefexecutive under division 3; or(ii)otherwise—use of
the restrictive practice complieswith—(A)apositivebehavioursupportplanfortheadultdevelopedbytherelevantserviceprovider under
this division; and(B)the consent of a relevant
decision-maker forthe adult.(2)Forsubsection (1)(c),therestrictivepracticeisnotusedincompliancewithapositivebehavioursupportplaniftherelevantserviceproviderdoesnotimplementthepositivestrategies
stated in the plan.(3)In this section—relevant
decision-maker, for an adult with an intellectual
orcognitive disability, means—(a)a guardian for a restrictive practice
(general) matter forthe adult; or(b)for
restricting access of the adult, if there is no guardianfor
a restrictive practice (general) matter for the adult—an
informal decision-maker for the adult.167Using
chemical, mechanical or physical restraint, orrestricting
access, for respite services or communityaccess
services(1)A relevant service provider may use
chemical, mechanical orphysicalrestrainton,orrestrictaccessof,anadultwithanCurrent as at [Not applicable]Page
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168]intellectual or cognitive disability in the
course of providingrespite services or community access
services to the adult if—(a)use of the
restrictive practice is necessary to prevent theadult’sbehaviourcausingharm totheadultorothers;and(b)use of the restrictive practice is the
least restrictive wayof ensuring the safety of the adult or
others; and(c)before using the restrictive practice,
the relevant serviceprovider complies with the
requirements under division5; 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
incompliancewiththerespite/communityaccessplaniftherelevantserviceproviderdoesnotimplementthepositivestrategies
stated in the plan.(3)Thissectiondoesnotapplyiftheadultisthesubjectofacontainment 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.168Using chemical restraint (fixed dose)
for respite services(1)A relevant
service provider may use chemical restraint (fixeddose) on an adult with an intellectual or
cognitive disability inthe course of providing respite
services to the adult if use ofthe chemical
restraint complies with the consent of a relevantdecision-maker (respite) for the
adult.(2)Thissectiondoesnotapplyiftheadultisthesubjectofacontainment or seclusion
approval.Page 168Current as at
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6 Positive behaviour support and restrictive practices[s
169]169Using chemical, mechanical or physical
restraint, orrestricting access, if consent ended(1)This section applies if—(a)the guardian for a restrictive
practice matter for an adultwith an
intellectual or cognitive disability is the publicguardian; and(b)thepublicguardianhasgivenconsent(theexistingconsent) to the use of
a restrictive practice, other thancontainment or
seclusion, in relation to the adult.(2)Arelevantserviceprovidermayusetherestrictivepracticeafter the existing consent ends if—(a)atleast30daysbeforetheexistingconsentends,therelevantserviceproviderasksthepublicguardian,inwriting, to consent to the use of the
restrictive practice inrelation to the adult; and(b)at the time the existing consent ends,
the public guardianhas not decided whether to give the consent;
and(c)use of the restrictive
practice—(i)isnecessarytopreventtheadult’sbehaviourcausing harm to the adult or others;
and(ii)is the least
restrictive way of ensuring the safety ofthe adult or
others; and(iii)complies with
the existing consent and the positivebehavioursupportplanorrespite/communityaccess plan for
the adult.(3)However,therelevantserviceprovidermayonlyusetherestrictive practice under this
section until the earlier of thefollowing—(a)the
public guardian gives the relevant service providernotice about the public guardian’s decision
whether togive the consent;(b)30
days after the existing consent ends.Current as at
[Not applicable]Page 169
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Positive behaviour support and restrictive practices[s
170]170Using chemical, mechanical or physical
restraint, orrestricting access, under short term
approval(1)A relevant service provider may use
chemical, mechanical orphysicalrestrainton,orrestrictaccessof,anadultwithanintellectual or cognitive disability
if—(a)thereisanimmediateandseriousriskofharmtotheadult or others; and(b)use of the restrictive
practice—(i)isnecessarytopreventtheadult’sbehaviourcausing harm to the adult or others;
and(ii)is the least
restrictive way of ensuring the safety ofthe 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 arestrictive practice under this
section.171Using chemical, mechanical or physical
restraint, orrestricting access, before decision on short
termapproval(1)A
relevant service provider may use chemical, mechanical orphysicalrestrainton,orrestrictaccessof,anadultwithanintellectual or cognitive disability
if—(a)therelevantserviceproviderhasaskedthechiefexecutive, in
writing, for an approval under section 178to use the
restrictive practice in relation to the adult andthe
request has not been decided; and(b)use
of the restrictive practice—(i)isnecessarytopreventtheadult’sbehaviourcausing harm to the adult or others;
and(ii)is the least
restrictive way of ensuring the safety ofthe adult or
others; andPage 170Current as at
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6 Positive behaviour support and restrictive practices[s
172](c)apositivebehavioursupportplanorarespite/communityaccessplanfortheadultisbeingimplemented.(2)However,therelevantserviceprovidermayonlyusetherestrictive practice until the earlier
of the following—(a)the relevant service provider is given
notice about thechief executive’s decision on the
request;(b)30 days after the relevant service
provider asks for theshort term approval.(3)It is not necessary to obtain the
adult’s consent to the use of arestrictive
practice under this section.Subdivision
2Assessment of adult and positivebehaviour support plan172Application of sdiv 2This subdivision
applies if—(a)arelevantserviceproviderproposestousechemical,mechanical or
physical restraint on, or restrict access of,an adult with an
intellectual or cognitive disability, otherthan—(i)under a short term approval; or(ii)inthecourseofprovidingrespiteservicesorcommunity access services to the adult;
and(b)the adult is not the subject of a
containment or seclusionapproval; andNote—If
the adult is the subject of a containment or seclusion
approval,and the adult’s positive behaviour support
plan does not providefor the relevant service provider’s
use of the restrictive practicementioned in
paragraph (a), the relevant service provider must—(a)ask the chief executive to change the
positive behavioursupport plan to provide for the relevant
service provider’sCurrent as at [Not applicable]Page
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173]use of the restrictive practice (see
division 3, subdivision 3);and(b)applytothetribunalforthemakingorreviewofacontainment or seclusion approval in
relation to the relevantservice provider’s use of the
restrictive practice.(c)the relevant
service provider does not propose to containor seclude the
adult in addition to using the restrictivepractice
mentioned in paragraph (a).173Requirements for
development of positive behavioursupport
plan—assessment and consultation(1)This
section states the requirements with which the relevantserviceprovidermustcomplyindevelopingapositivebehaviour
support plan for the adult.(2)The
relevant service provider must—(a)ensure the adult is assessed; andNote—See section 148
for requirements about the assessment of theadult.(b)if the provider is aware the adult is
subject to a forensicorder,treatmentsupportorderortreatmentauthorityundertheMentalHealthAct2016—ensuretheauthorised psychiatrist responsible
for treating the adultunder that Act is given the
opportunity to participate inthe development
of the positive behaviour support plan;and(c)if the provider is aware the adult is
a forensic disabilityclient—ensure a senior practitioner
responsible for thecareandsupportoftheadultundertheForensicDisabilityAct2011isgiventheopportunitytoparticipate in the development of the
positive behavioursupport plan; and(d)consult with, and consider the views of, the
following—(i)the adult;Page 172Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
173](ii)anyguardianorinformaldecision-makerfortheadult;(iii)anyotherrelevantserviceproviderprovidingdisability
services to the adult;(iv)anotherpersonconsideredbytheprovidertobeintegral to the development of the
plan; andExample—a family member
who is part of the adult’s support network, akey 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 chemicalrestraint, the relevant service
provider must—(a)consult the adult’s treating doctor;
and(b)inform the adult’s treating doctor
about—(i)thefindingsandtheoriesofthepersonwhoassessed the adult about the adult’s
behaviour thatcausesharmtotheadultorothers,includingthefactors contributing to the behaviour;
and(ii)the strategies,
including other restrictive practices,proposed to be
used in conjunction with the use ofthe chemical
restraint for—(A)meeting the adult’s needs and
improving theadult’s capabilities and quality of life;
and(B)reducingtheintensity,frequencyandduration of the adult’s behaviour that
causesharm to the adult or others.(4)The positive behaviour support plan
may provide for the useof mechanical or physical restraint
only if the use is supportedby the
recommendations of the person who assessed the adult.Current as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
174]174Changing a positive behaviour support
plan(1)Apositivebehavioursupportplanthatprovidesforuseofchemical,
mechanical or physical restraint may be changed bythe
relevant service provider only if—(a)either—(i)for
a change relating to use of chemical restraint—therelevantserviceproviderhasconsultedtheadult’s treating doctor; or(ii)otherwise—thechangeissupportedbytherecommendationsofanappropriatelyqualifiedperson; and(b)a
guardian for a restrictive practice (general) matter forthe
adult consents to the change.(2)Apositivebehavioursupportplanthatprovidesonlyforrestricting access of the adult may be
changed by the relevantserviceprovideronlyifafollowingpersonconsentstothechange—(a)a
guardian for a restrictive practice (general) matter forthe
adult;(b)if there is no guardian for a
restrictive practice (general)matter for the
adult—an informal decision-maker for theadult.175Requirement for relevant service
provider to considerwhether plan should be changed(1)This section applies if—(a)apositivebehavioursupportplanisdevelopedforanadult under this division; and(b)the relevant service provider becomes
aware the adult issubjecttoaforensicorder,treatmentsupportorderortreatment authority under theMental Health Act 2016,or
is a forensic disability client.(2)Therelevantserviceprovidermustconsiderwhetherthepositive behaviour support plan should
be changed.Page 174Current as at
[Not applicable]
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6 Positive behaviour support and restrictive practices[s
176](3)Indecidingwhetherthepositivebehavioursupportplanshould be changed, the relevant service
provider must—(a)consulttheauthorisedpsychiatristresponsiblefortreating the adult under theMental Health Act 2016, orsenior practitioner responsible for the care
and supportof the adult under theForensic
Disability Act 2011; and(b)considerthepsychiatrist’s,orseniorpractitioner’s,views about the
use of any restrictive practice providedfor in the
plan.Subdivision 3Requirements if
adult subject toforensic order, treatment supportorder or treatment authorityNote—UndertheCommunityServicesAct2007,section 19,afundednon-government
service provider may be given a compliance noticerequiringtheprovidertoremedyacontraventionofarequirementunder this
subdivision.176Requirement for relevant service
provider to notifyguardian(1)This
section applies if—(a)arelevantserviceproviderisrequiredundersection173(2)or175(3)toconsulttheauthorisedpsychiatrist
responsible for treating the adult under theMentalHealthAct2016,orseniorpractitionerresponsible for
the care and support of the adult undertheForensic Disability Act 2011;
and(b)thepsychiatrist,orseniorpractitioner,doesnotagreewith the use of
a restrictive practice provided for in thepositive
behaviour support plan for the adult.(2)Assoonaspracticableafterconsultingtheauthorisedpsychiatristorseniorpractitioner,therelevantserviceprovider must notify a relevant
decision-maker for the adultCurrent as at
[Not applicable]Page 175
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177]aboutthepsychiatrist’sorseniorpractitioner’sviewsregarding use of the restrictive
practice.(3)In this section—consult,theauthorisedpsychiatristresponsiblefortreatingtheadultundertheMentalHealthAct2016,orseniorpractitioner
responsible for the care and support of the adultundertheForensicDisabilityAct2011,includesgivethepsychiatrist,orseniorpractitioner,anopportunitytoparticipate in the development of a positive
behaviour supportplan.relevant
decision-maker, for the adult, means—(a)a
guardian for a restrictive practice (general) matter forthe
adult; or(b)iftheonlyrestrictivepracticeprovidedforinthepositivebehavioursupportplanfortheadultisrestrictingaccessandthereisnoguardianforarestrictivepractice(general)matterfortheadult—aninformal decision-maker for the
adult.177Requirement for relevant service
provider to notifyrelevant director(1)This
section applies if—(a)arelevantserviceproviderdevelopsorchangesapositive behaviour support plan for an adult
under thisdivision; and(b)a
guardian for a restrictive practice (general) matter, oran
informal decision-maker, for the adult consents to theuseofarestrictivepracticebytherelevantserviceprovider in
relation to the adult; and(c)therelevantserviceproviderisorbecomesawaretheadultissubjecttoaforensicorder,treatmentsupportorderortreatmentauthorityundertheMentalHealthAct
2016, or is a forensic disability client.(2)The relevant service provider
must—Page 176Current as at
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6 Positive behaviour support and restrictive practices[s
178](a)give notice to the relevant director
of the terms of theconsentgivenbytheguardianorinformaldecision-makerassoonaspracticableafterthelaterof—(i)the consent being given; or(ii)therelevantserviceproviderbecomingawareasmentioned in subsection (1)(c); and(b)if asked by the relevant director,
give the director a copyof the positive behaviour support plan
for the adult.(3)In this section—relevant
directormeans—(a)if
the adult is a forensic disability client—the director offorensic disability; or(b)otherwise—the chief psychiatrist.Subdivision 4Short term
approvals given by chiefexecutive178Short
term approval for use of restrictive practices otherthan
containment or seclusion(1)Thissectionappliesifarelevantserviceproviderasksthechief executive for approval to use a
restrictive practice, otherthan containment
or seclusion, in relation to an adult with anintellectual or
cognitive disability.(2)The chief
executive may give the approval only if the chiefexecutive is satisfied—(a)the
adult is not the subject of a containment or seclusionapproval; and(b)theadulthasimpairedcapacityformakingdecisionsabouttheuseofrestrictivepracticesinrelationtotheadult; and(c)either—Current as at
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178](i)thereisnoguardianforarestrictivepractice(general) matter for the adult; or(ii)thereisaguardianforarestrictivepractice(general) matter for the adult but the
guardian hasneither given, nor refused to give, consent
to therelevantserviceprovidertousetherestrictivepractice in
relation to the adult; andNote—It is not
necessary to obtain the adult’s consent to the useof a
restrictive practice under a short term approval. Seesection 170.(d)thereisanimmediateandseriousriskthat,iftheapproval is not given, the adult’s
behaviour will causeharm to the adult or others;
and(e)use of the restrictive practice is the
least restrictive wayof ensuring the safety of the adult or
others; and(f)iftherestrictivepracticeischemicalrestraint—therelevantserviceproviderhasconsultedwith,andconsidered the views of, the adult’s
treating doctor.(3)If the chief executive has previously
given an approval underthis section in relation to the adult,
the chief executive maygive the approval only if satisfied
exceptional circumstancesjustify giving a subsequent approval
under this section.(4)In deciding whether to give the
approval, the chief executivemust, unless it
is not practicable in the circumstances, consultwith
and consider the views of the following persons about theproposed use of the restrictive
practice—(a)the adult, or a guardian or informal
decision-maker forthe adult;(b)if
the chief executive is aware the adult is subject to aforensicorder,treatmentsupportorderortreatmentauthorityundertheMentalHealthAct2016—theauthorised psychiatrist responsible for
treating the adultunder that Act;Page 178Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
178](c)ifthechiefexecutiveisawaretheadultisaforensicdisabilityclient—aseniorpractitionerresponsibleforthecareandsupportoftheadultundertheForensicDisability Act
2011.(5)The chief executive must, as soon as
practicable after decidingwhethertogivetheapproval,givetherelevantserviceprovider notice of the decision, including,
if the approval isgiven—(a)the
conditions to which it is subject; and(b)the
period for which it has effect.(6)Thechiefexecutivemaygivetheapprovalsubjecttotheconditions the
chief executive considers appropriate.(7)Also, the chief executive must, within 7
days after decidingwhether to give the approval, give notice of
the decision to thefollowing persons—(a)the
public guardian;(b)anypersonconsultedbythechiefexecutiveundersubsection
(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 approvalis given—(i)the
terms of the approval; and(ii)thechiefexecutive’sreasonsforgivingtheapproval.(9)A
person given notice under subsection (5) or (7) of a
decisionof the chief executive to give, or refuse to
give, the approvalmay apply, as provided under the QCAT Act,
to the tribunalfor a review of the decision.(10)In this
section—Current as at [Not applicable]Page
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179]impaired capacitysee theGuardianshipandAdministrationAct 2000,
schedule 4.Notauthorised—indicativeonly179Period for which
short term approval has effect(1)An
approval given by the chief executive under section 178haseffectfortheperiodstatedinthenoticegiventotherelevant 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 forthe adult gives, or refuses to give,
consent to the relevantservice provider to use the
restrictive practice in relationto the adult;
or(b)the tribunal gives a containment or
seclusion approvalfor the adult.Division 5Use
of restrictive practices forrespite services
or communityaccess services180Purpose of div 5(1)Thisdivisionprescribestherequirementsthatarelevantservice provider
must comply with before using a restrictivepracticeinthecourseofprovidingrespiteservicesorcommunity access services to an adult with
an intellectual orcognitive disability.(2)This
division does not apply for the use of chemical restraint(fixed dose) under section 168.181Requirement to develop
respite/community access plan(1)Therelevantserviceprovidermustdeveloparespite/community access plan for the
adult.Page 180Current as at
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6 Positive behaviour support and restrictive practices[s
181](2)Arespite/communityaccessplan,foranadultwithanintellectualorcognitivedisability,isaplanstatingatleasteach of the
following—(a)the adult’s name;(b)a
description of the behaviour of the adult that causesharm
to the adult or others, including the consequencesof
the behaviour;(c)a description of the restrictive
practices used in relationto the adult;(d)the
reasons for using the restrictive practices;(e)any
strategies that must be attempted before using therestrictive practices;(f)theprocedureforusingtherestrictivepractices,includingobservationsandmonitoring,andanyothermeasures
necessary to ensure the adult’s proper care andtreatment,thatmusttakeplacewhiletherestrictivepractices are
being used;(g)a demonstration of why the restrictive
practices are theleast restrictive way of ensuring the safety
of the adult orothers;(h)a
description of the positive strategies that will be usedto—(i)meettheadult’sneedsandimprovetheadult’scapabilities and
quality of life; and(ii)reduce the
intensity, frequency and duration of theadult’s
behaviour that causes harm to the adult orothers;(i)for containment—a description of the
place where theadult will be contained;(j)for
seclusion—(i)a description of the place where the
adult will besecluded; andCurrent as at
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Positive behaviour support and restrictive practices[s
182](ii)the maximum
period for which seclusion may beused at any 1
time and the maximum frequency ofthe
seclusion;(k)for chemical restraint—(i)thenameofthemedicationtobeusedandanyavailableinformationaboutthemedication,including, for
example, information about possibleside effects;
and(ii)thedose,routeandfrequencyofadministration,including, for
medication to be administered as andwhenneeded,thecircumstancesinwhichthemedication may be administered, as
prescribed bythe adult’s treating doctor; and(iii)the name of the
adult’s treating doctor;(l)formechanicalorphysicalrestraint—themaximumperiod for which the restraint may be used
at any 1 time.182Obtaining information about the
adultIn developing a respite/community access
plan, the relevantserviceprovidermustobtain,fromthepersonsconsultedunder section 183, any information available
and relevant foridentifying the following—(a)the adult’s needs;(b)the
behaviour of the adult that causes harm to the adultor
others, including the consequences of the behaviour;(c)the factors contributing to the
behaviour mentioned inparagraph (b).183ConsultationIn developing a
respite/community access plan for an adult,the relevant
service provider must consult with, and considerthe
views of, the following persons—(a)the
adult;Page 182Current as at
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6 Positive behaviour support and restrictive practices[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 disabilityservices to the adult;(d)anyotherpersonconsideredbytherelevantserviceprovider to be integral to the development
of the plan.Example—a family member
who is part of the adult’s support network, akey health care
provider or an advocate for the adult184Risk
assessmentThe relevant service provider must identify,
and keep a recordof—(a)the risks
associated with the provision of respite servicesorcommunityaccessservicestotheadultbytherelevant service provider; andExamples of possible risks—•the adult’s behaviour causing harm to
another client of therelevant service provider•thestaffoftherelevantserviceprovidernotbeingadequately
trained to manage the behaviour of the adult•the
physical environment in which the services are providednot
being adequate to accommodate the needs of the adult(b)theprocedurestherelevantserviceproviderwillimplement to mitigate those risks.Division 6Review of
particular chief executivedecisions185Application of div 6This division
applies if the chief executive makes a decision (arelevant decision) about which
the chief executive is requiredunder this part
to give a decision notice.Current as at [Not applicable]Page
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186]Note—See sections 157
(a decision that a multidisciplinary assessment willnot
be conducted) and 158(6) (a decision not to develop a
positivebehaviour support plan under division
3).Notauthorised—indicativeonly186Definitions for
div 6In this division—interested
person, for a relevant decision, means a person
towhom the chief executive is required under
this part to give adecision notice about the decision.relevant decisionsee section
185.187Application for review by chief
executive(1)An interested person for a relevant
decision may apply to thechiefexecutive,within28daysafterreceivingadecisionnotice about the
decision, to review the decision.(2)The
chief executive may extend the time for applying for thereview.(3)Also, an interested person for a relevant
decision may apply tothechiefexecutivetoreviewthedecisionifthechiefexecutive has
not given the interested person a decision noticeabout the decision.(4)Theapplicationmustbeintheapprovedformandaccompaniedbyenoughinformationtoenablethechiefexecutive to
decide the application.188Review of
relevant decision(1)Thissectionappliestoanapplicationundersection 187forreview of a relevant decision.(2)Unlessthechiefexecutivemadetherelevantdecisionpersonally, the chief executive must ensure
the application isnot dealt with by—(a)the
person who made the relevant decision; orPage 184Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
189](b)apersoninalessseniorofficethanthepersonwhomade
the relevant decision.(3)Within28daysafterreceivingtheapplication,thechiefexecutivemustreviewtherelevantdecisionandmakeadecision (thereview
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 executivemust give the interested person a notice
stating—(a)the review decision; and(b)the reasons for the review
decision.Division 7Miscellaneous
provisionsSubdivision 1Immunity for use
of restrictivepractices189Immunity from liability—relevant service
providerA relevant service provider is not
criminally or civilly liable iftherelevantserviceprovider,actinghonestlyandwithoutnegligence, uses
a restrictive practice under this part.190Immunity from liability—individual acting
for relevantservice provider(1)This
section applies to an individual who, acting for a relevantservice provider, uses a restrictive
practice in relation to anadult with an intellectual or
cognitive disability.(2)The individual
is not criminally or civilly liable for using therestrictive practice if the individual acts
honestly and withoutnegligence in compliance with—Current as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
190]Notauthorised—indicativeonlyPage 186(a)if
the restrictive practice is used under section 151—(i)thecontainmentorseclusionapprovalfortheadult;
and(ii)either—(A)if the containment or seclusion for
the adultis given as an interim order under the
GAA,section 80ZR—the terms of the order;
or(B)otherwise—thepositivebehavioursupportplan
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)iftherestrictivepracticeisusedundersection 153or170—the relevant short term approval;
or(d)iftherestrictivepracticeisusedundersection 154or171—thepositivebehavioursupportplanorrespite/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 theadult; or(B)the
consent of a relevant decision-maker forthe adult within
the meaning of section 166;or(f)if the restrictive practice is used
under section 167—(i)therespite/communityaccessplanfortheadult;and(ii)the consent of a
relevant decision-maker (respite)for the adult;
orCurrent as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
191](g)if the restrictive practice is used
under section 168—theconsentofarelevantdecision-maker(respite)fortheadult;
and(h)if the restrictive practice is used
under section 169—(i)theexistingconsentfortheadultunderthatsection;
and(ii)thepositivebehavioursupportplanorrespite/community access plan for the
adult.(3)Forsubsection
(2),theindividualistakentobeactingincompliancewithanapproval, consentorplanmentionedinthe subsection if the individual
reasonably believes he or sheis acting in
compliance with the approval, consent or plan.Subdivision
2Requirements for relevant serviceprovidersNote—UndertheCommunityServicesAct2007,section 19,afundednon-government
service provider may be given a compliance noticerequiringtheprovidertoremedyacontraventionofarequirementunder this
subdivision.191Requirement to give statement about
use of restrictivepractices(1)This
section applies if a relevant service provider providingdisability services to an adult with an
intellectual or cognitivedisability is considering using
restrictive practices in relationto the
adult.(2)Therelevantserviceprovidermustgiveastatementintheapprovedformtothefollowingpersonsabouttheuseofrestrictive practices generally—(a)the adult;(b)a
person with a sufficient and continuing interest in theadult (aninterested
person).Current as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
192](3)The statement must state—(a)why the relevant service provider is
considering usingrestrictive practices in relation to the
adult; and(b)how the adult and the interested
person can be involvedandexpresstheirviewsinrelationtotheuseofrestrictive practices; and(c)who decides whether restrictive
practices will be used inrelation to the adult; and(d)howtheadultandtheinterestedpersoncanmakeacomplaint about, or seek review of, the use
of restrictivepractices.(4)Also, the relevant service provider must
explain the statementto the adult—(a)inthelanguageorwaytheadultismostlikelytounderstand; 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 aids192Requirement to give information to
guardian or informaldecision-maker(1)This
section applies if—(a)arelevantserviceproviderseeksconsentfromasubstitute decision-maker for an adult to
use a restrictivepractice in relation to the adult;
and(b)therestrictivepracticeisnotchemicalrestraint(fixeddose) used under section 168 in the course
of providingrespite services to the adult.(2)To enable the substitute
decision-maker to make an informeddecision about
the use of a restrictive practice other than in thecourseofprovidingrespiteservicesorcommunityaccessservices to the adult, the relevant service
provider must givethe substitute decision-maker each of the
following—Page 188Current as at
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6 Positive behaviour support and restrictive practices[s
192](a)the positive behaviour support plan
for the adult;(b)any assessment or other information
used to develop orchange the plan;(c)iftherelevantserviceproviderisawaretheadultissubjecttoaforensicorder,treatmentsupportorderortreatment authority under theMental Health Act 2016—the
terms of the order or authority.(3)To
enable the substitute decision-maker to make an informeddecision about the use of a restrictive
practice in the course ofproviding respite services or
community access services to theadult,therelevantserviceprovidermustgivethesubstitutedecision-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 withoutnegligence,givestheinformationtothesubstitutedecision-maker,therelevantserviceproviderisnotliable,civilly,criminallyorunderanadministrativeprocess,forgiving the information.(5)Also, merely because the relevant
service provider gives theinformation, the relevant service
provider can not be held tohave—(a)breached any code of professional
etiquette or ethics; or(b)departedfromacceptedstandardsofprofessionalconduct.(6)Without limiting subsections (4) and
(5)—(a)inaproceedingfordefamation,therelevantserviceproviderhasadefenceofabsoluteprivilegeforpublishing the information; and(b)iftherelevantserviceproviderwouldotherwiseberequiredtomaintainconfidentialityabouttheinformation under an Act, oath or rule
of law or practice,the relevant service provider—Current as at [Not applicable]Page
189
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Positive behaviour support and restrictive practices[s
193](i)does not contravene the Act, oath or
rule of law orpractice by giving the information;
and(ii)isnotliabletodisciplinaryactionforgivingtheinformation.(7)This
section does not limit the GAA, section 44.Note—The
GAA, section 44 enables a guardian to obtain all information
theadult would have been entitled to if the
adult had capacity and that isnecessary for
the guardian to make informed decisions.(8)In
this section—informationincludes a
document.substitute decision-maker,
for an adult, means a guardian forarestrictivepracticematter,oraninformaldecision-maker,for the
adult.Note—Aguardianorinformaldecision-makerwhogainsconfidentialinformation is
subject to confidentiality requirements under the GAA.See
the GAA, section 249 for guardians and section 80ZT for
informaldecision-makers.193Requirement to keep and implement
procedure(1)This section applies to a relevant
service provider who uses arestrictive
practice in relation to an adult with an intellectualor
cognitive disability.(2)Therelevantserviceprovidermustkeepandimplementproceduresthatensureanindividualactingfortherelevantservice provider who uses the restrictive
practice in relation tothe adult—(a)has
sufficient knowledge of the requirements for lawfuluse
of the restrictive practice; and(b)hastheskillsandknowledgerequiredtousetherestrictive practice appropriately.(3)In this section—keep and
implement, for a procedure, means—Page
190Current as at [Not applicable]
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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)keepacopyoftheup-to-dateprocedureatpremiseswhere the
restrictive practice is used.194Requirement to keep records and other
documents(1)Thissectionappliestoarelevantserviceproviderusingarestrictive practice in relation to an
adult with an intellectualor cognitive disability.(2)Therelevantserviceprovidermustmake,andkeepforthetimeprescribedunderaregulation,therecordsprescribedunder a
regulation.(3)Also,therelevantserviceprovidermustkeep,atpremiseswheredisabilityservicesareprovidedtotheadult,acopyof—(a)iftherestrictivepracticeisusedundersection 151or166—the positive behaviour support plan for
the adult;or(b)iftherestrictivepracticeisusedundersection 152or167—therespite/communityaccessplanfortheadult;or(c)iftherestrictivepracticeisusedundersection 153or170—the short term approval for the
adult.(4)Iftherestrictivepracticeisusedunderacontainmentorseclusion approval given as an interim order
under the GAA,section 80ZR—(a)subsection (3)(a) does not apply; and(b)therelevantserviceprovidermustkeep,atpremiseswheredisabilityservicesareprovidedtotheadult,acopy
of the interim order.Current as at [Not applicable]Page
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195]Notauthorised—indicativeonly195Notification
requirements about approvals given for useof restrictive
practices(1)If—(a)a
relevant service provider is given a limited restrictivepracticeapprovalauthorisingtheprovidertousearestrictive
practice at a service outlet; and(b)there is no other limited restrictive
practice approval ineffect 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)Arelevantserviceproviderwhohasgivenanoticeundersubsection (1)must,withintheperiodmentionedinsubsection (6), give notice in the
approved form to the chiefexecutive if all limited restrictive
practice approvals relating tothe service
outlet stop having effect.(3)If—(a)a relevant service provider is given a
restrictive practiceapprovalauthorisingtheprovidertousearestrictivepractice at a
visitable site as defined under thePublicGuardian Act 2014, section 39;
and(b)there is no other restrictive practice
approval in effectrelating 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)thatarestrictivepracticeapprovalhasbeengiveninrelation to the visitable site.(5)Arelevantserviceproviderwhohasgivenanoticeundersubsection (3)must,withintheperiodmentionedinsubsection (6),givenoticetothepublicguardianifallrestrictive
practice approvals relating to the visitable site stophaving effect.Page 192Current as at [Not applicable]
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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 21days after the
event mentioned in the subsection happens.(7)In
this section—limitedrestrictivepracticeapprovalmeansarestrictivepractice
approval other than—(a)a containment or
seclusion approval; or(b)a short term
approval given by the public guardian underthe GAA, chapter
5B, part 4.required periodmeans—(a)iftherestrictivepracticeapprovalisashorttermapproval—14 days after the approval is
given; or(b)otherwise—21daysaftertherestrictivepracticeapproval is given.restrictive
practice approvalmeans—(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 3Confidentiality
provisions196Definitions for sdiv 3In
this subdivision—chiefexecutive(health)meansthechiefexecutiveofthedepartmentinwhichtheHospitalandHealthBoardsAct2011is
administered.health professionalmeans a person
engaged in delivering aprivate sector health service,
including the following—(a)a registered
health practitioner;Current as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
197](b)any other person, including, for
example, an audiologist,dietician, social worker or speech
pathologist.healthservicechiefexecutivemeansahealthservicechiefexecutive under
theHospital and Health Boards Act 2011.private sector health servicemeans a service for maintaining,improvingorrestoringpeople’shealthandwellbeing,otherthan
a service provided by the State.197Relevant service provider may request
confidentialinformation from health professional, chief
executive(health) or health service chief
executive(1)This section applies if a relevant
service provider considers ahealth
professional, the chief executive (health), or a healthservicechiefexecutive,mayholdconfidentialinformationabout an adult
with an intellectual or cognitive disability thatisrelevanttoanyofthefollowingbeingdonebytheprovider—(a)the
assessment of the adult, including the making of adecision about whether to assess the
adult;(b)thedevelopmentorchangingofapositivebehavioursupport plan for the adult;(c)the development of a respite/community
access plan forthe adult.(2)The
relevant service provider may ask the health professionalor
chief executive (health) for the confidential information.(3)A health professional or the chief
executive (health) who givesconfidential
information requested under this section and whowould otherwise be required to maintain
confidentiality aboutthe information under an Act, oath or
rule of law or practice—(a)doesnotcontravenetheAct,oathorruleoflaworpractice by
giving the information; and(b)isnotliabletodisciplinaryactionforgivingtheinformation.Page 194Current as at [Not applicable]
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6 Positive behaviour support and restrictive practices[s
198](4)Also,merelybecausethehealthprofessionalorthechiefexecutive(health)givestheconfidentialinformation,theperson can not be held to have—(a)breached any code of professional
etiquette or ethics; or(b)departedfromacceptedstandardsofprofessionalconduct.198Relevant service providers must
maintain confidentiality(1)This section
applies if a relevant service provider—(a)gains confidential information under section
197; or(b)otherwisegainsconfidentialinformationinthecourseof—(i)assessing an adult with an
intellectual or cognitivedisabilityordevelopingapositivebehavioursupport plan for the adult; or(ii)developing a
respite/community access plan for anadult with an
intellectual or cognitive disability.(2)The
relevant service provider, or an individual acting for therelevant service provider, must not disclose
the information toanyone other than under subsection
(3).Maximum penalty—100 penalty units.(3)The relevant service provider, or an
individual acting for therelevantserviceprovider,maydisclosetheinformationtosomeone 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)ifauthorisedunderanotherlaworaregulationmadeunder this Act; or(e)if
authorised in writing by the adult with an intellectualor
cognitive disability to whom the information relates;orCurrent as at [Not applicable]Page
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Positive behaviour support and restrictive practices[s
199](f)to protect a person with a disability
from abuse, neglector exploitation.Subdivision
4Reporting and provision ofparticular information199Requirement to give information about use of
restrictivepractice to chief executive(1)Thissectionappliestoarelevantserviceproviderusingarestrictive practice in relation to an
adult with an intellectualor cognitive disability.(2)The relevant service provider must
give to the chief executive,inthewayandatthetimesprescribedunderaregulation,information
about the use of the restrictive practice prescribedunder a regulation.200Chief
executive may give information about use ofrestrictive
practice(1)Thissectionappliestoinformationgiventothechiefexecutive by a relevant service provider
under section 199.(2)The chief executive may give the
information to any or all ofthe
following—(a)QCAT;(b)the
public guardian;(c)the public advocate under the
GAA;(d)the relevant service provider.Page
196Current as at [Not applicable]
Notauthorised—indicativeonlyPart
6ADisability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200A]Investigation, monitoring andenforcementDivision 1Preliminary200APurpose of partThepurposeofthispartistoprescribeparticularfunctionsandpowersofauthorisedofficersappointedundertheCommunity Services Act 2007.200BReferences to
exercise of powersIf—(a)a provision of
this part refers to the exercise of a powerby an authorised
officer; and(b)there is no reference to a specific
power;thereferenceistotheexerciseofalloranyauthorisedofficer’s powers
under this part or a warrant, to the extent thepowers are
relevant.200CReference to document includes
reference toreproductions from electronic
documentA reference in this part to a document
includes a reference toan image or writing—(a)produced from an electronic document;
or(b)notyetproduced,butreasonablycapableofbeingproduced, from
an electronic document, with or withoutthe aid of
another article or device.Current as at [Not applicable]Page
197
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6A Investigation, monitoring and enforcement[s 200D]Division 2Functions of
authorised officers200DExisting functions of authorised
officers in relation tofundingForthis
ActandtheCommunityServicesAct2007,section24(d), the
functions of an authorised officer, to the extent theCommunityServicesAct2007applies in
relation to fundingbecause of section 10 of that Act, include
the following—(a)investigating, monitoring and ensuring
compliance withthis Act;(b)investigatingormonitoringwhetheranoccasionhasarisen for the exercise of powers under
theCommunityServices Act
2007;(c)facilitating the
exercise of powers under theCommunityServices Act 2007.Note—See theCommunity Services Act 2007,
part 4, divisions 3 and 4 forpowersanauthorisedofficermayexerciseunderthatActfortheperformance of
the authorised officer’s functions under this section.200EAdditional functions of authorised
officers in relation toNDIS non-government service
providersWithoutlimitingsection200D,forthisActandtheCommunityServicesAct2007,section24(d),anauthorisedofficer also has
the functions of—(a)investigating,monitoringandensuringcomplianceofNDIS
non-government service providers with this Act;and;(b)for the purposes of paragraph
(a)—(i)investigatingormonitoringwhetheranoccasionhasarisenfortheexerciseofpowersunderthisAct; and(ii)facilitating the
exercise of powers under this Act.Page 198Current as at [Not applicable]
Division 3Disability
Services Act 2006Part 6A Investigation, monitoring and
enforcement[s 200F]Powers of
authorised officers forparticular functionsNotauthorised—indicativeonlySubdivision 1Preliminary200FApplication of division for particular
functionsThis division applies for the performance of
the functions ofan authorised officer mentioned in section
200E.Subdivision 2General power of
entry200GGeneral power to enter places(1)An authorised officer may enter a
place if—(a)an occupier of the place consents
under subdivision 3 tothe entry and section 200J has been
complied with forthe occupier; or(b)it
is a public place and the entry is made when it is opento
the public; or(c)the entry is authorised under a
warrant and, if there is anoccupier of the
place, section 200Q has been compliedwith for the
occupier; or(d)it is the place of business of an NDIS
non-governmentservice provider and is—(i)open
for carrying on the business; or(ii)otherwise open for entry.(2)For subsection (1)(d), aplace of businessdoes not include
apart of the place where a person
resides.(3)If the power to enter arose only
because an occupier of theplaceconsentedtotheentry,thepowerissubjecttoanyconditionsoftheconsentandceasesiftheconsentiswithdrawn.Current as at
[Not applicable]Page 199
Notauthorised—indicativeonlyDisability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200H](4)If the power to enter is under a
warrant, the power is subject tothe terms of the
warrant.(5)In this section—public
placemeans a place, or part of the place—(a)the public is entitled to use, that is
open to members ofthe public or that is used by the public,
whether or noton payment of money; orExamples of a
place that may be a public place under paragraph(a)—a beach, a park,
a road(b)theoccupierofwhichallows,whetherornotonpayment of
money, members of the public to enter.Examples of a
place that may be a public place under paragraph(b)—a saleyard, a
showgroundSubdivision 3Entry by
consent200HApplication of subdivisionThis
subdivision applies if an authorised officer intends to askan
occupier of a place to consent to the authorised officer oranotherauthorisedofficerenteringtheplaceundersection200G(1)(a).200IIncidental entry to ask for accessForthepurposeofaskingtheoccupierfortheconsent,anauthorisedofficermay,withouttheoccupier’sconsentorawarrant—(a)enter land around premises at the
place to an extent thatis reasonable to contact the occupier;
or(b)enter part of the place the authorised
officer reasonablyconsiders members of the public ordinarily
are allowedPage 200Current as at
[Not applicable]
Disability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200J]to
enter when they wish to contact an occupier of theplace.Notauthorised—indicativeonly200JMatters authorised officer must tell
occupierBefore asking for the consent, the
authorised officer must givea reasonable
explanation to the occupier—(a)aboutthepurposeoftheentry,includingthepowersintended to be
exercised; and(b)that the occupier is not required to
consent; and(c)that the consent may be given subject
to conditions andmay be withdrawn at any time.200KConsent acknowledgement(1)Iftheconsentisgiven,theauthorisedofficermayasktheoccupier to sign an acknowledgement of the
consent.(2)The acknowledgement must state—(a)thepurposeoftheentry,includingthepowerstobeexercised; and(b)the
following has been explained to the occupier—(i)thepurposeoftheentry,includingthepowersintended to be
exercised;(ii)that the
occupier is not required to consent;(iii)that
the consent may be given subject to conditionsand may be
withdrawn at any time; and(c)theoccupiergivestheauthorisedofficeroranotherauthorised
officer consent to enter the place and exercisethe powers;
and(d)the time and day the consent was
given; and(e)any conditions of the consent.(3)Iftheoccupiersignstheacknowledgement,theauthorisedofficer must
immediately give a copy to the occupier.Current as at
[Not applicable]Page 201
Notauthorised—indicativeonlyDisability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200L](4)If—(a)anissuearisesinaproceedingaboutwhethertheoccupier 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 ofthe entry to prove the occupier
consented.Subdivision 4Entry under
warrant200LApplication for warrant(1)An authorised officer may apply to a
magistrate for a warrantfor a place.(2)The
authorised officer must prepare a written application thatstates 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 theauthorised officer gives the
magistrate all the information themagistraterequiresabouttheapplicationinthewaythemagistrate requires.Example—Themagistratemayrequireadditionalinformationsupportingtheapplication to be given by statutory
declaration.200MIssue of warrant(1)Amagistratemayissueawarrantforaplaceonlyifthemagistrateissatisfiedtherearereasonablegroundsforsuspecting that it is necessary to
enter the place—(a)toprotectapersonwhoisaparticipantreceivingservices, under the person’s participant’s
plan, from anNDISnon-governmentserviceproviderattheplacefromriskofharmbecauseofabuse,neglectorexploitation; orPage 202Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200N](b)tocheckwhetheranNDISnon-governmentserviceprovider has complied with, or is complying
with, thisAct.(2)However, the magistrate may issue a warrant
under subsection(1)(b) only if the magistrate is satisfied
noncompliance maysignificantly 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 andreasonable help and force—(i)enter the place and any other place
necessary forthe entry; and(ii)exercise the officer’s powers; and(c)particulars of the reason it is
necessary to enter the placethat the
magistrate considers appropriate;(d)thehoursofthedayornightwhentheplacemaybeentered; 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)theday,within14daysafterthewarrant’sissue,thewarrant ends.200NElectronic application(1)An
application under section 200L may be made by phone,fax,email,radio,videoconferencingoranotherformofelectronic communication if the
authorised officer reasonablyconsiders it
necessary because of—(a)urgent
circumstances; or(b)other special circumstances,
including, for example, theauthorised
officer’s remote location.(2)The
application—Current as at [Not applicable]Page
203
Disability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200O](a)may not be made before the authorised
officer preparesthe written application under section
200L(2); but(b)may be made before the written
application is sworn.Notauthorised—indicativeonly200OAdditional procedure if electronic
application(1)Foranapplicationundersection200N,themagistratemayissue the warrant (theoriginal
warrant) only if the magistrateis
satisfied—(a)it was necessary to make the
application under section200N; and(b)the
way the application was made under section 200Nwas
appropriate.(2)After the magistrate issues the
original warrant—(a)if there is a reasonably practicable
way of immediatelygiving a copy of the warrant to the
authorised officer,including,forexample,bysendingacopybyfaxoremail, the
magistrate must immediately give a copy ofthe warrant to
the authorised officer; or(b)otherwise—(i)the
magistrate must tell the authorised officer theinformation
mentioned in section 200M(3); and(ii)theauthorisedofficermustcompleteaformofwarrant, including by writing on it the
informationmentionedinsection200M(3)providedbythemagistrate.(3)The
copy of the warrant mentioned in subsection (2)(a), or theform
of warrant completed under subsection (2)(b) (in eithercase
theduplicate warrant), is a
duplicate of, and as effectualas, the original
warrant.(4)Theauthorisedofficermust,atthefirstreasonableopportunity,
send to the magistrate—(a)the written
application complying with section 200L(2)and (3);
andPage 204Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200P](b)iftheauthorisedofficercompletedaformofwarrantundersubsection(2)(b)—thecompletedformofwarrant.(5)Themagistratemustkeeptheoriginalwarrantand,onreceiving the documents under subsection
(4)—(a)attach the documents to the original
warrant; and(b)give the original warrant and
documents to the clerk ofthe court of the relevant magistrates
court.(6)Despite subsection (3), if—(a)anissuearisesinaproceedingaboutwhetheranexercise of a power was authorised by a
warrant issuedunder this section; and(b)the
original warrant is not produced in evidence;the onus of
proof is on the person relying on the lawfulness ofthe
exercise of the power to prove a warrant authorised theexercise of the power.(7)This
section does not limit section 200L.(8)In
this section—relevant magistrates court, in
relation to a magistrate, meansthe Magistrates
Court that the magistrate constitutes under theMagistrates Act
1991.200PDefect in
relation to a warrant(1)A warrant is not
invalidated by a defect in—(a)the
warrant; or(b)compliance with section 200L, 200M or
200N;unlessthedefectaffectsthesubstanceofthewarrantinamaterial particular.(2)In this section—warrantincludesaduplicatewarrantmentionedinsection200O(3).Current as at [Not applicable]Page
205
Notauthorised—indicativeonlyDisability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200Q]200QEntry procedure(1)Thissectionappliesifanauthorisedofficernamedinawarrant issued under this subdivision
for a place is intendingto enter the place under the
warrant.(2)Before entering the place, the
authorised officer must do ormake a
reasonable attempt to do the following things—(a)identifyhimselforherselftoapersonwhoisanoccupier of the
place and is present by producing a copyoftheauthorisedofficer’sidentitycardoranotherdocumentevidencingtheauthorisedofficer’sappointment;(b)give
the person a copy of the warrant;(c)tell
the person the authorised officer is permitted by thewarrant to enter the place;(d)give the person an opportunity to
allow the authorisedofficer immediate entry to the place
without using force.(3)However,theauthorisedofficerneednotcomplywithsubsection (2) if the authorised officer
believes on reasonablegrounds that entry to the place
without compliance is requiredtoensuretheeffectiveexecutionofthewarrantisnotfrustrated.(4)In
this section—warrantincludesaduplicatewarrantmentionedinsection200O(3).Subdivision 5General powers
of authorisedofficer after entering place200RApplication of subdivision(1)Thepowersunderthissubdivisionmaybeexercisedifanauthorised officer enters a place
under section 200G(1)(a), (c)or (d).Page
206Current as at [Not applicable]
Disability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200S](2)However,iftheauthorisedofficerentersundersection200G(1)(a)or(c),thepowersunderthissubdivisionaresubjecttoanyconditionsoftheconsentortermsofthewarrant.Notauthorised—indicativeonly200SGeneral powers(1)The
authorised officer may do any of the following (each ageneral power)—(a)search any part of the place;(b)inspect,examineorfilmanypartoftheplaceoranything at the place;(c)take
for examination a thing, or a sample of or from athing, 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 ortake the document to another place to
copy;(f)produceanimageorwritingattheplacefromanelectronicdocumentor,totheextentitisnotpracticable,takeathingcontaininganelectronicdocumenttoanotherplacetoproduceanimageorwriting;(g)taketo,intoorontotheplaceanduseanyperson,equipmentandmaterialstheauthorisedofficerreasonably requires for exercising the
officer’s powersunder this subdivision;(h)confer alone with a person at the
place;(i)require a person at the place to
answer questions by theauthorised officer to help the
authorised officer ascertainwhether this Act
is being or has been complied with;(j)remain at the place for the time necessary
to achieve thepurpose of the entry.(2)The
authorised officer may take a necessary step to allow theexercise of a general power.Current as at [Not applicable]Page
207
Notauthorised—indicativeonlyDisability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200T](3)If the authorised officer takes a
document from the place tocopyit,theauthorisedofficermustcopythedocumentandreturn it to the place as soon as
practicable.(4)Iftheauthorisedofficertakesfromtheplaceanarticleordevice reasonably capable of producing a
document from anelectronic document to produce the document,
the authorisedofficer must produce the document and return
the article ordevice to the place as soon as
practicable.(5)In this section—examineincludesanalyse,test,account,measure,weigh,grade, gauge and identify.200TPower to require reasonable
help(1)Theauthorisedofficermaymakearequirement(ahelprequirement) of an occupier
of the place or a person at theplace to give
the authorised officer reasonable help to exerciseageneralpower,including,forexample,toproduceadocument or to give information.(2)Whenmakingthehelprequirement,theauthorisedofficermust
warn the person it is an offence not to comply with therequirement unless the person has a
reasonable excuse.200UOffence to contravene help
requirement(1)A person of whom a help requirement is
made must complywiththerequirementunlessthepersonhasareasonableexcuse.Maximum penalty—40 penalty units.(2)It is a reasonable excuse for an
individual to not comply witha help
requirement if complying might tend to incriminate theindividual or expose the individual to a
penalty.Page 208Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200V]200VFailure to answer questions(1)Apersonofwhomarequirementismadeundersection200S(1)(i)mustcomplywiththerequirement,unlesstheperson has a reasonable excuse.Maximum penalty—40 penalty units.(2)It is a reasonable excuse for the
person to not comply with therequirement if
complying with the requirement might tend toincriminate the
person.Subdivision 6Additional
information-obtainingpower200WPower
to require information(1)Thissectionappliesifanauthorisedofficerreasonablybelieves—(a)an offence against this Act has been
committed by anNDIS non-government service provider;
or(b)therehasbeenaservicedeliveryfailurebyanNDISnon-governmentserviceproviderandtheserviceprovidermaybeabletogiveinformationaboutthefailure; or(c)a
person who is a participant receiving services, undertheperson’sparticipant’splan,fromanNDISnon-government
service provider may be at risk of harmbecause of
abuse, neglect or exploitation by the serviceprovider.(2)Theauthorisedofficermay,bynoticegiventotheNDISnon-government service provider, require the
service providertogivetheauthorisedofficerinformationrelatedtotheoffence or
matter mentioned in subsection (1) within a statedreasonable time and in a stated way.(3)Arequirementundersubsection(2)isaninformationrequirement.Current as at [Not applicable]Page
209
Notauthorised—indicativeonlyDisability Services Act 2006Part
6A Investigation, monitoring and enforcement[s 200X](4)Forinformationthatisanelectronicdocument,compliancewith the
information requirement requires the giving of a clearimage or written version of the electronic
document.(5)Theauthorisedofficermaykeepinformationthatisadocument to copy
it.(6)If the authorised officer copies the
document, or an entry inthedocument,theauthorisedofficermayrequiretheNDISnon-governmentserviceproviderwhohaspossessionorcontrol of the document to certify the copy
as a true copy ofthe document or entry.(7)Arequirementundersubsection(6)isadocumentcertification requirement.(8)The authorised
officer must return the document to the NDISnon-government
service provider as soon as practicable aftercopying
it.(9)However, if a document certification
requirement is made of aperson, the authorised officer may
keep the document until theperson complies
with the requirement.(10)Whenmakinganinformationrequirementordocumentcertification
requirement, the authorised officer must warn theNDIS
non-government service provider it is an offence not tocomply with the requirement unless the
service provider has areasonable excuse.(11)In
this section—service delivery failuremeans a
significant failure to deliver aservice to a
participant who is paying for the service wholly orpartly under the participant’s plan.200XOffence to contravene information
requirement(1)AnNDISnon-governmentserviceproviderofwhomaninformationrequirementismademustcomplywiththerequirementunlesstheserviceproviderhasareasonableexcuse.Maximum penalty—50 penalty units.Page
210Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
7 Legal proceedings[s 201](2)It
is a reasonable excuse for an individual to not comply withtheinformationrequirementifcomplyingwiththerequirementmighttendtoincriminatetheindividualorexpose the individual to a penalty.(3)If a court convicts a person of an
offence against subsection(1),thecourtmayalsoorderthepersontogivetoastatedauthorised
officer, within a stated time and in a stated way, theinformation to which the information
requirement related.Part 7Legal
proceedingsDivision 1Application201Application of pt 7This part
applies to a proceeding under this Act.Division 2Evidence202Appointments and authorityThefollowingmustbepresumedunlessapartytotheproceeding, by reasonable notice,
requires proof of it—(a)the chief
executive’s appointment;(b)the authority of
the chief executive to do anything underthis Act.203SignaturesAsignaturepurportingtobethesignatureofthechiefexecutive is evidence of the signature it
purports to be.Current as at [Not applicable]Page
211
Notauthorised—indicativeonlyDisability Services Act 2006Part 7
Legal proceedings[s 204]204Evidentiary provisions(1)A
certificate purporting to be signed by the chief executiveandstatinganyofthefollowingmattersisevidenceofthematter—(a)astateddocumentis1ofthefollowingthingsmade,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 thisAct;(c)astateddocumentisacopyofathingmentionedinparagraph (a) or (b);(d)on a stated day, a stated person was
given a stated noticeunder this Act;(e)onastatedday,astatedrequirementwasmadeofastated person.(2)Inacomplaintstartingaproceeding,astatementthatthematter of complaint came to the
complainant’s knowledge onastateddayisevidenceofwhenthemattercametothecomplainant’s
knowledge.205Positive notice card is evidence of
holding positive noticeIfapersonholdsacurrentpositivenoticecard,thecardisevidence of the person holding a current
positive notice.Division 3Proceedings206Indictable and summary offences(1)An offence against section 71(1) or 74
is an indictable offencethat is a crime.Page 212Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
7 Legal proceedings[s 207](2)Otherwise, an offence against this Act is a
summary offence.207Proceedings for indictable
offences(1)A proceeding for an indictable offence
against this Act maybe taken, at the election of the
prosecution—(a)by way of summary proceedings under
theJustices Act1886;
or(b)on indictment.(2)A
magistrate must not hear an indictable offence summarilyif—(a)thedefendantasksatthestartofthehearingthatthecharge be prosecuted on indictment;
or(b)themagistrateconsidersthechargeshouldbeprosecuted on indictment.(3)If subsection (2) applies—(a)the magistrate must proceed by way of
an examinationof witnesses for an indictable offence;
and(b)apleaofthepersonchargedatthestartoftheproceeding must be disregarded;
and(c)evidencebroughtintheproceedingbeforethemagistrate decided to act under
subsection (2) is takento be evidence in the proceeding for
the committal of theperson for trial or sentence;
and(d)before committing the person for trial
or sentence, themagistratemustmakeastatementtothepersonasrequired by theJustices Act
1886, section 104(2)(b).(4)The
maximum penalty that may be summarily imposed for anindictableoffenceis150penaltyunitsor2yearsimprisonment.Current as at
[Not applicable]Page 213
Notauthorised—indicativeonlyDisability Services Act 2006Part 7
Legal proceedings[s 208]208Limitation on who may summarily hear
indictable offenceproceedings(1)Aproceedingmustbebeforeamagistrateifitisaproceeding—(a)for
the summary conviction of a person on a charge foran
indictable offence; or(b)foranexaminationofwitnessesforachargeforanindictable offence.(2)However, if a proceeding for an
indictable offence is broughtbefore a justice
who is not a magistrate, jurisdiction is limitedto
taking or making a procedural action or order within themeaning of theJustices of the
Peace and Commissioners forDeclarations Act
1991.209Proceeding for
offencesA proceeding for an offence against this
Act, other than anindictable offence, must be taken in a
summary way under theJustices Act 1886.210When proceeding may startAproceedingforasummaryoffenceagainstthisActmuststart 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’sknowledge,butwithin2yearsaftertheoffenceiscommitted.211Allegations of false or misleading
information ordocumentIn any
proceeding for an offence against this Act defined asinvolvingfalseormisleadinginformation,orafalseormisleading document, it is enough for a
charge to state thatthe information or document was,
without specifying which,‘false or misleading’.Page
214Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
7 Legal proceedings[s 212]212Forfeiture on conviction(1)On
conviction of a person for an offence against this Act, acourt 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 hasbeen returned to its owner.(3)Thecourtmaymakeanyordertoenforcetheforfeitureitconsiders appropriate.(4)Thissectiondoesnotlimitthecourt’spowersunderthePenalties and Sentences Act 1992or
another law.213Dealing with forfeited thing(1)On the forfeiture of a thing to the
State, the thing becomes theState’spropertyandmaybedealtwithbytheStateastheState considers appropriate.(2)Withoutlimitingsubsection (1),theStatemaydestroythething.214Responsibility for acts or omissions of
representative(1)This section applies in a proceeding
for an offence against thisAct.(2)Ifitisrelevanttoproveaperson’sstateofmindaboutaparticular act or omission, it is
enough to show—(a)theactwasdoneoromittedtobedonebyarepresentativeofthepersonwithinthescopeoftherepresentative’s actual or apparent
authority; and(b)the representative had the state of
mind.Current as at [Not applicable]Page
215
Notauthorised—indicativeonlyDisability Services Act 2006Part 8
Miscellaneous[s 215](3)Anactdoneoromittedtobedoneforapersonbyarepresentativeofthepersonwithinthescopeoftherepresentative’s actual or apparent
authority is taken to havebeen done or omitted to be done also
by the person, unless thepersonprovesthepersoncouldnot,bytheexerciseofreasonable diligence, have prevented the act
or omission.(4)In this section—representativemeans—(a)foracorporation—anexecutiveofficer,employeeoragent of the corporation; or(b)foranindividual—anemployeeoragentoftheindividual.state of
mindof a person includes—(a)theperson’sknowledge,intention,opinion,belieforpurpose; and(b)the
person’s reasons for the intention, opinion, belief orpurpose.Part 8MiscellaneousDivision 1Records215Funded non-government service provider or
NDISnon-government service provider must keep
recordsAfundednon-governmentserviceprovideroranNDISnon-government
service provider must make, and keep for thetimeprescribedunderaregulation,therecordsprescribedunder a
regulation.Maximum penalty—(a)for
an individual guilty under chapter 2 of the CriminalCode
of an offence—20 penalty units; orPage 216Current as at [Not applicable]
Disability Services Act 2006Part
8 Miscellaneous[s 216](b)forafundednon-governmentserviceprovider—100penalty
units.Notauthorised—indicativeonlyDivision 2Locking of
gates, doors andwindows216Application of div 2This division
applies if—(a)arelevantserviceproviderlocksgates,doorsorwindowsatpremiseswheredisabilityservicesareprovidedtoadultswithanintellectualorcognitivedisability;
and(b)the only reason the gates, doors or
windows are lockedis to prevent physical harm being caused to
an adult witha skills deficit.217Definitions for div 2In this
division—adultwithanintellectualorcognitivedisabilityseesection 144.adult with a
skills deficitmeans an adult with an intellectualor
cognitive disability who can not safely exit premises wheredisabilityservicesareprovidedtotheadultwithoutsupervision, if the only reason the adult
can not safely exit thepremises without supervision
is—(a)the adult lacks road safety skills;
or(b)the adult is vulnerable to abuse or
exploitation by others;or(c)theadultisunabletofindhisorherwaybacktothepremises; or(d)another reason prescribed under a
regulation.relevant service providersee
section 140.Current as at [Not applicable]Page
217
Notauthorised—indicativeonlyDisability Services Act 2006Part 8
Miscellaneous[s 218]218Immunity from liability—relevant service
provider(1)The relevant service provider is not
civilly or criminally liablefor locking
gates, doors or windows if—(a)the
relevant service provider acts honestly and withoutnegligence; and(b)therelevantserviceproviderkeepsandimplementsapolicyaboutthelockingofgates,doorsandwindowsthat is
consistent with the department’s policy about thelocking of gates, doors and windows;
and(c)the gates, doors or windows are locked
in compliancewith the policy; and(d)therelevantserviceprovidertakesreasonablestepstominimisetheimpactoflockingthegates,doorsorwindows on a person living at the
premises who is notan adult with a skills deficit.(2)Subsection (1) applies to the extent
the locking of the gates,doorsorwindowspreventsthefreeexitfromthepremisesof—(a)an adult with a skills deficit;
or(b)anyotherpersonlivingatthepremises,otherthananadult with an intellectual or
cognitive disability who iscontained 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)whenprovidingdisabilityservices,implementandcomply with the procedures and other matters
stated inthe policy; and(c)keep
a copy of the up-to-date policy at the premises.Page
218Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
8 Miscellaneous[s 219]219Immunity from liability—individual acting
for relevantservice providerAnindividual,actingforarelevantserviceprovider,isnotcivillyorcriminallyliableforlockinggates,doorsorwindowsiftheindividualactsincompliancewith,orreasonably believes he or she is
acting in compliance with, theprovider’spolicyaboutthelockingofgates,doorsandwindows.220Department’s policy about locking of gates,
doors andwindows(1)The
department must have a policy about the locking of gates,doors and windows under this
division.(2)Thepolicymustoutlinetheproceduresarelevantserviceproviderwillusetoensuregates,doorsandwindowsarelocked only if it is—(a)necessarytopreventphysicalharmtoanadultwithaskills deficit; and(b)the least restrictive way of ensuring
the adult’s safety asis practicable in the
circumstances.(3)Also,thepolicymustensureappropriateregardishadtolinguistic and cultural diversity and
Aboriginal tradition andIsland custom.Editor’s
note—For definitionsAboriginal
traditionandIsland custom, see theActsInterpretation
Act 1954, section 36.(4)The
chief executive must keep a copy of the policy availableforinspectionfreeofchargebyrelevantserviceprovidersat—(a)the department’s head office and
regional offices; and(b)other places the
chief executive considers appropriate.(5)Also,thechiefexecutivemustpublishthepolicyonthedepartment’s website on the
internet.Current as at [Not applicable]Page
219
Disability Services Act 2006Part 8
Miscellaneous[s 221]Division 3Other mattersNotauthorised—indicativeonly221Disability
service plans for departments(1)Thechiefexecutiveofadepartmentmustdevelopandimplementdisabilityserviceplansforthechiefexecutive’sdepartment.(2)The
first plan must be developed and implemented within 1year
after the commencement of this section.(3)A
further plan must be developed and implemented at leastonce
every 3 years.(4)The purpose of a plan is to ensure
each department has regardtothefollowingtotheextenttheyreasonablyapplytothedepartment’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 adepartmentmustconsultwiththefollowingtoensurethechiefexecutive’splanformspartofacoordinatedwhole-of-government approach for service
delivery to peoplewith a disability—(a)the
chief executive of the department in which this Actis
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 peoplewith 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 toconsultwithotherchiefexecutivestoachievethewhole-of-governmentapproachmentionedinsubsection (5).Page 220Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
8 Miscellaneous[s 222](7)The
chief executive of a department must publish the currentdisability service plan for the department
on the department’swebsite on the internet.(8)Despite thePublic Service
Act 2008, section 22, this sectiondoes
not apply to a public service office.222Establishment of Ministerial advisory
committeesThe Minister may establish—(a)acommitteetoadviseonthesystemthatdealswithcomplaints received from the
following—(i)consumers;(ii)family members, carers or advocates of
consumers;and(b)as many other
committees to advise on disability issuesanddisabilityservicesastheMinisterconsidersappropriate.223Membership of advisory committee(1)An advisory committee has the
membership decided by theMinister.(2)TheMinistermayappointthefollowingpersonstoanadvisory
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 orexperience relevant to people with a
disability.224DissolutionThe Minister may
dissolve an advisory committee at any time.Current as at
[Not applicable]Page 221
Notauthorised—indicativeonlyDisability Services Act 2006Part 8
Miscellaneous[s 225]225Other
mattersTheMinistermaydecidemattersaboutanadvisorycommittee that
are not provided for under this Act, including,for example, the
way a committee must conduct meetings orreport to the
Minister.226Person with a disability must advise
chief executiveabout compensation(1)Thissectionappliestoapersonwithadisabilitywho,inrelation to the disability—(a)is applying for, or is
receiving—(i)fundingfordisabilityservicesfromthedepartment; or(ii)disabilityservicesfromanotherentitythepersonknows is a
funded service provider; and(b)has
received, or may receive, an amount relating to thedisability.(2)The
person must notify the chief executive in the approvedform—(a)if
action has been taken to claim an amount relating tothe
disability—of the type of action taken; and(b)if
an amount has been paid—of the date it was paid andthe
amount; and(c)if part or all of the amount relates
to future care—of theamount that relates to future
care.Maximum penalty—200 penalty units.(3)Subsection (4) applies to a person
who, on behalf of a personwith a disability, applies for—(a)funding for disability services from
the department; or(b)disabilityservicesfromanotherentitythepersonapplying knows
is a funded service provider.Page 222Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
8 Miscellaneous[s 227](4)The
person who applies for funding on behalf of a person withadisabilitymustnotifythechiefexecutiveintheapprovedform
of the matters mentioned in subsection (2).Maximum
penalty—200 penalty units.(5)In this
section—anamountrelatingtothedisabilityincludesanamountrelating to the
disability resulting from any of the following—(a)a
proceeding in a court;(b)actiontakenforcompensationundertheWorkers’Compensation and
Rehabilitation Act 2003or an Act orlaw of another
State, a Territory or the Commonwealthcorresponding to
that Act;(c)an insurance claim;(d)any other action taken under the
common law or underanActorlawofaStateorTerritoryortheCommonwealth.227Confidentiality of information about
criminal history andrelated information(1)This
section applies to a person who—(a)is,orhasbeen,thechiefexecutive,apublicserviceemployee, or a selection panel member;
and(b)in that capacity acquired information,
or gained accesstoadocument,underpreviouspart9aboutanotherperson’scriminalhistoryoraboutaninvestigationrelating to the
possible commission of a serious offenceby another
person.(2)This section also applies to a person
who—(a)is,orhasbeen,thechiefexecutive,apublicserviceemployee or a selection panel member;
and(b)in that capacity acquired information,
or gained accessto a document, under part 5 about—(i)another person’s police information;
orCurrent as at [Not applicable]Page
223
Notauthorised—indicativeonlyDisability Services Act 2006Part 8
Miscellaneous[s 227](ii)anotherperson’smentalhealth,includinginformation, or
a document, about a proceeding intheMentalHealthCourtortheMentalHealthReview Tribunal.(3)The
person must not disclose the information, or give accessto
the document, to anyone else.Maximumpenalty—100penaltyunitsor2yearsimprisonment.(4)Subsection (3) does not apply to the
disclosure of information,or giving of access to a document,
about a person—(a)ifsubsection
(1)applies—tothechiefexecutive,apublic service employee or selection panel
member forthe purpose of assessing the person’s
suitability to be, orcontinue to be, a public service
employee; or(b)if subsection (2) applies—(i)to the chief executive or a public
service employeefor the purpose of a screening decision;
or(ii)forinformationoradocumentaboutapersonengaged or to be
engaged by the department—tothe chief
executive, a public service employee orselectionpanelmemberforthepurposeofassessing the person’s suitability to
be, or continuetobe,engagedbythedepartmentataserviceoutlet;
or(c)if the person is an adult—with the
person’s consent; or(d)ifthedisclosureorgivingofaccessisotherwiserequired under
an Act.(5)In this section—previous part
9means part 9 of this Act as in force from
timeto time before the commencement of this
definition.selection panel membermeans a member
of a panel formedtomakearecommendationtothechiefexecutiveaboutaperson’s employment as a public service
employee.Page 224Current as at
[Not applicable]
Disability Services Act 2006Part
8 Miscellaneous[s 228]Notauthorised—indicativeonly228Confidentiality of other
information(1)Thissectionappliestoconfidentialinformationotherthaninformation
mentioned in section 227(1)(b) or (2)(b).(2)Ifapersongainsconfidentialinformationthroughinvolvement in this Act’s administration,
the person must notdisclosetheinformationtoanyone,otherthanundersubsection (4) or (5).Maximum
penalty—100 penalty units.(3)A person gains
information through involvement in this Act’sadministration
if the person gains the information because ofbeing, or an
opportunity given by being—(a)the
chief executive; or(b)an employee in the department;
or(c)apersoncontractedbythechiefexecutivetoprovidedisability
services for the department; or(d)a
person contracted by the department for the purpose ofconductingamultidisciplinaryassessment,ordeveloping a positive behaviour support
plan, under part6, division 3; or(e)a
person authorised by the chief executive to carry outresearch 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 compliancewith, this Act; or(b)to
discharge a function under another law; or(c)for
a proceeding in a court or tribunal; or(d)ifauthorisedunderanotherlaworaregulationmadeunder this Act; or(e)if—(i)the person is
authorised in writing by the person towhom the
information relates; andCurrent as at [Not applicable]Page
225
Notauthorised—indicativeonlyDisability Services Act 2006Part 8
Miscellaneous[s 229](ii)the
person to whom the information relates is anadult when the
authorisation is given; or(f)to protect a
person with a disability from abuse, neglector
exploitation.(5)Also, a person may disclose
information to—(a)anotherdepartment,afundednon-governmentserviceprovider, an NDIS non-government service
provider oranother entity to enable the department,
service providerorentitytoprovidefortheneedsofapersonwithadisability; or(b)the
Commonwealth or another entity for the purposes ofan
agreement with the Commonwealth.229Power
to require information or documents(1)Thechiefexecutivemaygivenoticetoafundednon-governmentserviceprovideroranNDISnon-governmentserviceproviderrequiringtheserviceprovider to give
the chief executive, within a stated reasonabletime,
information or a document relating to the provision ofdisability services to consumers of the
service provider.(2)Thefundednon-governmentserviceproviderorNDISnon-governmentserviceprovidermustcomplywiththenotice.(3)Forarequirementtogiveadocument,thefundednon-governmentserviceproviderorNDISnon-governmentservice provider
may comply with the requirement by giving acopy of the
document certified as a true copy of the document.230Protection from liability for giving
information(1)This section applies to the giving of
information to the chiefexecutive, by a funded non-government
service provider or anNDIS non-government service provider
under this Act.(2)Afundednon-governmentserviceprovideroranNDISnon-government
service provider, or a person on behalf of thePage 226Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
8 Miscellaneous[s 231]service
provider, may give the information despite any otherlaw
that would otherwise prohibit or restrict the giving of theinformation.(3)If a
person, acting honestly on reasonable grounds, gives theinformationtothechiefexecutive,thepersonisnotliable,civilly,criminallyorunderanadministrativeprocess,forgiving the information.(4)Also,merelybecausethepersongivestheinformation,theperson can not be held to have—(a)breached any code of professional
etiquette or ethics; or(b)departedfromacceptedstandardsofprofessionalconduct.(5)Without limiting subsections (3) and
(4)—(a)in a proceeding for defamation, the
person has a defenceof absolute privilege for publishing
the information; and(b)if the person
would otherwise be required to maintainconfidentiality
about the information under an Act, oathor rule of law
or practice, the person—(i)does not
contravene the Act, oath or rule of law orpractice by
giving the information; and(ii)isnotliabletodisciplinaryactionforgivingtheinformation.(6)In
this section—informationincludes a
document.231Chief executive to advise
on-disclosure(1)Thissectionappliestoinformationoradocumentthatthechief executive has obtained from a
funded non-governmentservice provider or an NDIS
non-government service providerunder section
229.(2)The chief executive must advise the
funded non-governmentserviceproviderorNDISnon-governmentserviceproviderbefore giving
the information or document to another entity,Current as at
[Not applicable]Page 227
Disability Services Act 2006Part 8
Miscellaneous[s 232]unless the chief
executive considers that doing so would notbe in the best
interests of a consumer to whom the informationor document
relates.Notauthorised—indicativeonly232Chief executive
may enter into arrangement about givingand receiving
information with police commissioner(1)This
section applies only to the extent that another provisionunder this Act allows the chief executive to
give informationto the police commissioner or the police
commissioner to giveinformation to the chief
executive.(2)The chief executive and the police
commissioner may enterinto a written arrangement by which
the information is givenor received.(3)Without limiting subsection (2), the
arrangement may providefor the electronic transfer of
information, including on a dailybasis.(4)However, if information is to be
electronically transferred and,under this Act,
there is a limitation on who may access theinformation or
the purposes for which the information may beused, the
arrangement must provide for the limitation.233Chief
executive may enter into arrangements aboutgiving and
receiving information about eligible persons(1)The
purpose of this section is to facilitate the monitoring andreconciliation of funding under this Act and
other Acts andthe NDIS Act by sharing information about
persons who maybe eligible persons.(2)Ifthechiefexecutiverequestsauditinginformationaboutpersons who may be eligible persons from the
chief executiveof another department, the other chief
executive must complywith the request.(3)To
facilitate the giving of auditing information about personswho
may be eligible persons, the chief executive and the chiefexecutiveoftheotherdepartmentmayenterintoawrittenPage 228Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
8 Miscellaneous[s 234]arrangementbywhichtheauditinginformationisgivenorreceived.(4)Without limiting subsection (3), the
arrangement may providefortheelectronictransferofauditinginformationaboutpersons who may be eligible persons.(5)However, if auditing information about
persons who may beeligible persons is to be electronically
transferred and, underthisAct,thereisalimitationonwhomayaccesstheinformation or the purposes for which
the information may beused, the arrangement must provide for
the limitation.(6)Withoutlimitingsection228(5),thechiefexecutivemaydisclosetothechiefexecutiveofanotherdepartmentunderthe
arrangement mentioned in subsection (3) the fact that aneligible person has become, or will not
become, a participant.(7)In this
section—auditing information, about a person
who may be an eligibleperson, 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 orguardiananddetailsofanyrelationshipbetweentheperson and the person’s carer or
guardian.eligible personmeans a person
receiving services funded ordelivered by a
department who may meet the access criteriaunder the NDIS
Act, section 21.234Delegation by Minister(1)The Minister may delegate the
Minister’s powers under thisActtoanappropriatelyqualifiedpersonwhoisapublicservice employee.Current as at
[Not applicable]Page 229
Disability Services Act 2006Part 8
Miscellaneous[s 235](2)However, the Minister must not delegate the
review of the Actunder section 240.Notauthorised—indicativeonly235Delegation by
chief executiveThe chief executive may delegate the chief
executive’s powersunder this Act to an appropriately qualified
person who is apublic service employee.236Protecting officials from liability(1)An official is not civilly liable for
an act done, or omissionmade, honestly and without negligence
under this Act.(2)Ifsubsection
(1)preventsacivilliabilityattachingtoanofficial, the liability attaches
instead to the State.(3)In this
section—officialmeans—(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.237Approval of formsThe chief
executive may approve forms for use under this Act.238Service of documents(1)If a document is required or permitted
under this Act to begiven to a person, the document may be
given to the person byfax transmission directed and sent
to—(a)the last fax number given to the giver
of the documentby the person as the facsimile transmission
number forservice of documents on the person;
orPage 230Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
8 Miscellaneous[s 239](b)the
fax transmission number operated—(i)at
the address of the person last known to the giverof
the document; or(ii)if the person is
a corporation, at the corporation’sregistered
office under the Corporations Act.(2)A
document given under subsection (1) is taken to have beengiven on the day the document is
transmitted.239Regulation-making power(1)TheGovernorinCouncilmaymakeregulationsunderthisAct.(2)A regulation made under this Act
may—(a)impose a penalty of not more than 20
penalty units for acontravention of a provision of a
regulation; and(b)prescribe fees payable under this Act
and the matters forwhich fees are payable.240Review of ActThe Minister
must review the efficacy and efficiency of thisAct as soon as
practicable after the end of 5 years after thecommencement of
this section.241Review of Guardianship and
Administration Act 2000, ch5BWhentheMinisterconductsthereviewrequiredundersection
240,theMinisterandtheMinisterresponsibleforadministering theGuardianship and
Administration Act 2000,actingjointly,mustreviewtheefficacyandefficiencyofchapter 5B of that Act.Current as at
[Not applicable]Page 231
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 241A]241AReview of impact of NDIS on Act(1)The Minister must review the efficacy
and efficiency of thisActinthelightofamendmentsoftheActmadebytheDisabilityServicesandOtherLegislationAmendmentAct2016.(2)The review must be completed by 30
June 2019.241BExpiry of pt 6APart 6A expires
on 30 June 2019.Part 9Repeal and
transitionalprovisionsDivision 1Repeal242Repeal of Disability Services Act
1992The Disability Services Act 1992 No. 24 is
repealed.Division 2Transitional
provisions for Act No.12 of 2006243Definitions for div 2In this
division—commencementmeans the
commencement of this part.repealed Actmeans theDisability Services Act 1992.Page 232Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 244]244Screening of persons engaged by
fundednon-government service providers at the
commencement(1)Thissectionappliestoafundednon-governmentserviceprovider who is engaging a person at a
service outlet of theservice provider at the
commencement.(2)Section 65 does not apply to the
continued engagement of theperson until the
earliest of the following—(a)theendoftheperiodafterthecommencementprescribed under
a regulation;(b)if an application for a prescribed
notice about the personismadewithinthatperiodandisnotwithdrawn—theday a prescribed
notice is issued to the person;(c)if
an application for a prescribed notice about a person ismade
within that period and is withdrawn—the day ofthe
withdrawal.(3)For subsection (2)(a), a regulation
must—(a)nameeachfundednon-governmentserviceprovider;and(b)assign a category to the service
provider; and(c)state the period after the
commencement, not exceeding6 months, that
applies to the category.(4)Thecategorymustrelatetothetypeofdisabilityservicesprovided by the service provider and is for
the purposes of thissection only.(5)Aparticularcategorymaybeassignedtoafundednon-governmentserviceprovidereventhoughtheserviceprovider also
falls within another category.245Certain non-government service providers
taken to beapproved under part 6 and to be funded
non-governmentservice providers(1)Thissectionappliestoanon-governmentserviceproviderthat, at the
commencement, is receiving financial assistanceunder the
repealed Act that is recurrent funding.Current as at
[Not applicable]Page 233
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 246](2)Theserviceprovideris,fromthecommencement,takentobe—(a)anapprovednon-governmentserviceproviderforthisAct; and(b)a funded non-government service
provider for this Act.Note—The
definitionapproved non-government service
providerand part 6were omitted
from this Act by theCommunities Legislation
(FundingRed Tape Reduction) Amendment Act
2014.246When grants of
financial assistance under the repealedAct
continue(1)Thissectionappliestoanon-governmentserviceproviderthat, at the
commencement, is receiving financial assistanceunder the
repealed Act that is recurrent funding.(2)Subject to subsection (4), the service
provider may continueto receive recurrent funding under
this Act.(3)If the service provider has, before
the commencement, signedanagreementundertherepealedActknownasageneralserviceagreement,thatagreementistakentobeafundingagreement under this Act.Note—The
definitionfunding agreementwas omitted from
this Act by theCommunities Legislation (Funding Red Tape
Reduction) AmendmentAct 2014.(4)Iftheserviceproviderhasnotsignedageneralserviceagreementbeforethecommencement,fundingmuststop3months 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 tothe service
provider stops under subsection (4).Page 234Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 247]247Queensland disability service
standards to continue inforce(1)Theprescribedstandardsaretakentobeservicestandardsmade
and notified under this Act and take effect for this Actfrom
the commencement.Note—ThedefinitionservicestandardswasomittedfromthisActbytheCommunities
Legislation (Funding Red Tape Reduction) AmendmentAct
2014.(2)The prescribed
standards may be amended and repealed underthis Act.(3)In this section—prescribedstandardsmeansthestandardscalledtheQueensland disability service
standards that were approved bythe Minister
administering theDisability Services Act 1992inDecember, 2003.248Disability sector quality system to continue
in force(1)Theprescribedsystemistakentobethedisabilitysectorquality system approved under this Act and
takes effect forthis Act from the commencement.Note—The
definitiondisability sector quality systemwas
omitted from thisAct by theCommunities
Legislation (FundingRedTape
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)theMinisteradministeringtheDisabilityServicesAct1992has approved an
entity as being suitable to accreditanotherentityforthepurposeoftheotherentitydeciding whether a service provider has met
the servicestandards for the prescribed system;
and(b)theapprovalisinforceimmediatelybeforethecommencement.Current as at
[Not applicable]Page 235
Notauthorised—indicativeonlyDisability Services Act 2006Part 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—prescribedsystemmeanstheprocesscalledthedisabilitysectorqualitysystemthatwasapprovedbytheMinisteradministering
theDisability Services Act 1992in
June, 2004.Division 3Transitional
provisions for DisabilityServices and Other LegislationAmendment Act 2008 and Justiceand
Other Legislation AmendmentAct 2010Subdivision 1Preliminary249Interpretation(1)In
this division—authorisedguardian,foranadultwithanintellectualorcognitive disability in relation to a
restrictive practice, meansa guardian for
the adult—(a)appointedbeforethecommencementundertheGuardianship and Administration Act
2000; and(b)who
is authorised under that Act, in accordance with theterms of the guardian’s appointment, to make
decisionsabout the use of the restrictive practice in
relation to theadult.Note—See
also the GAA, section 265.commencementmeans the
commencement of this division.compliance
periodmeans—Page 236Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 250](a)iftherestrictivepracticeusediscontainmentorseclusion or restricting access—6 months
from the daytherelevantserviceproviderfirstusestherestrictivepracticeinrelationtotheadultonorafterthecommencement; or(b)if
the restrictive practice used is chemical, mechanical orphysical restraint—9 months from the day the
relevantserviceproviderfirstusestherestrictivepracticeinrelation to the adult on or after the
commencement.previous service providermeans—(a)theState,totheextenttheStateprovideddisabilityservicesforadultswithanintellectualorcognitivedisability
before the commencement; or(b)apersonotherthantheStatewhoprovideddisabilityservicesfundedbytheStateforadultswithanintellectualorcognitivedisabilitybeforethecommencement.transitionalperiodmeanstheperiodstartingonthecommencementandending33monthsafterthecommencement.(2)Ifthecontextpermits,termsusedinthisdivisionthataredefined for part 6 have the meanings given
for part 6.250Declaration about transitional
periodTo remove doubt, it is declared that for all
purposes, includingforanythingdoneinrelationtothetransitionalperiod,thetransitionalperiodincludes,andistakentohavealwaysincluded, the period from after 30 September
2010 until thecommencement of this section.Current as at [Not applicable]Page
237
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 251]Subdivision 2Immunity from
liability for use ofrestrictive practices beforecommencement251Immunity of previous service providerA
previous service provider is not criminally or civilly
liablefor using a restrictive practice before the
commencement inrelation to an adult with an intellectual or
cognitive disabilityif—(a)the
previous service provider acted honestly and withoutnegligence; and(b)using the restrictive practice was—(i)necessary to prevent the adult’s
behaviour causingharm to the adult or others; and(ii)the least
restrictive way of ensuring the safety ofthe adult or
others; and(c)withinareasonabletimebeforeusingtherestrictivepractice, the
previous service provider assessed the adultto
identify—(i)the nature and causes of the adult’s
behaviour thatcaused harm to the adult or others;
and(ii)strategies for
managing the adult’s behaviour thatcaused harm to
the adult or others, and for meetingthe adult’s
needs; and(d)the previous service provider carried
out monitoring inrelationtouseoftherestrictivepracticetoensurethesafety of the adult.252Immunity of individual acting for previous
serviceprovider(1)Thissectionappliestoanindividualwho,actingforaprevious service provider before the
commencement, used aPage 238Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 253]restrictive practice in relation to an adult
with an intellectualor cognitive disability.(2)The individual is not criminally or
civilly liable for using therestrictive
practice if—(a)theindividualactedhonestlyandwithoutnegligence;and(b)useoftherestrictivepracticewasnecessary,ortheindividualreasonablybelieveduseoftherestrictivepractice was
necessary, to prevent the adult’s behaviourcausing harm to
the adult or others.Subdivision 3Immunity from
liability for use ofrestrictive practices duringtransitional period253Immunity of relevant service provider(1)A relevant service provider is not
criminally or civilly liablefor using a
restrictive practice during the transitional period inrelation to an adult with an intellectual or
cognitive disabilityif—(a)the
relevant service provider acts honestly and withoutnegligence; and(b)use
of the restrictive practice is—(i)necessary to prevent the adult’s behaviour
causingharm to the adult or others; and(ii)the least
restrictive way of ensuring the safety ofthe adult or
others; and(c)either—(i)if
there is an authorised guardian for the adult inrelationtotherestrictivepractice—therestrictivepractice is used
in compliance with the consent ofthe authorised
guardian; orCurrent as at [Not applicable]Page
239
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 254](ii)otherwise—the
relevant service provider complieswith section
254; and(d)the relevant service provider carries
out monitoring inrelationtouseoftherestrictivepracticetoensurethesafety of the adult; and(e)for
containment or seclusion—within 60 days after firstcontainingorsecludingtheadultonorafterthecommencement,therelevantserviceprovidergivesnotice to the chief executive in the
approved form of thecontainment or seclusion of the adult;
and(f)from the first day after the end of
the compliance perioduntil the last day of the transitional
period—the relevantserviceproviderkeepsandimplementsapolicyaboutuseoftherestrictivepracticeduringthetransitionalperiodthatisconsistentwiththedepartment’spolicyaboutuseoftherestrictivepracticementionedinsection 258.(2)Subsection (1)(b)to(d)doesnotapplyiftherestrictivepractice is
chemical restraint (fixed dose) used in the course ofproviding respite services to the
adult.(3)This section is subject to section
257.254Requirement to assess adult if no
authorised guardianForsection 253(1)(c)(ii),therequirementsarethattherelevant service provider must, during the
compliance period,assess the adult to identify—(a)thenatureandcausesoftheadult’sbehaviourthatcauses harm to
the adult or others; and(b)strategies for
managing the adult’s behaviour that causesharm to the
adult or others, and for meeting the adult’sneeds.Page
240Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 255]255Immunity for individual acting for
relevant serviceprovider(1)This
section applies to an individual who, acting for a relevantserviceproviderduringthetransitionalperiod,usesarestrictive practice in relation to an adult
with an intellectualor cognitive disability.(2)The individual is not criminally or
civilly liable for using therestrictive
practice if—(a)the individual acts honestly and
without negligence; and(b)useoftherestrictivepracticeisnecessary,ortheindividualreasonablybelievesuseoftherestrictivepracticeisnecessary,topreventtheadult’sbehaviourcausing harm to the adult or others.(3)Subsection (2)(b) does not apply if
the restrictive practice ischemical
restraint (fixed dose) used in the course of providingrespite services to the adult.(4)This section is subject to section
257.256Relationship of subdivision with pt
6This subdivision does not limit part
6.257Circumstances in which subdivision
stops applying(1)Thissectionprovidesforthecircumstancesinwhichthissubdivision stops applying to the use of a
restrictive practiceby a relevant service provider in
relation to an adult with anintellectual or
cognitive disability.(2)If the
restrictive practice is not used in the course of providingrespite services or community access
services to the adult, thecircumstances are—(a)for
a restrictive practice considered by the tribunal—thetribunal gives, or refuses to give, an
approval under theGuardianshipandAdministrationAct2000,section 80Vor80XauthorisingtherelevantserviceCurrent as at [Not applicable]Page
241
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 258]provider to use the restrictive practice in
relation to theadult; or(b)forchemical,mechanicalorphysicalrestraint—aguardianforarestrictivepractice(general)matterforthe adult gives, or refuses to give,
consent to use of therestrictive practice by the relevant
service provider; or(c)forrestrictingaccess—aguardianforarestrictivepractice
(general) matter, or an informal decision-maker,for
the adult gives, or refuses to give, consent to use ofthe
restrictive practice by the relevant service provider.(3)Iftherestrictivepracticeis
usedinthecourseofprovidingrespite services
or community access services to the adult, thecircumstances
are a guardian for a restrictive practice (respite)matter, or an informal decision-maker, for
the adult gives, orrefuses to give, consent to use of the
restrictive practice by therelevant service
provider.Subdivision 4Other
provisions258Requirements for department’s policy
about use ofrestrictive practices during transitional
period(1)The department must have a policy
about use of each type ofrestrictive practice during the
transitional period.(2)Thepolicymustoutlinetheproceduresarelevantserviceprovider must use to—(a)iftherelevantserviceproviderisrequiredtocomplywith section
254—assess an adult with an intellectual orcognitive
disability; and(b)ensureanindividualactingfortherelevantserviceprovider who
uses the restrictive practice in relation tothe
adult—(i)hassufficientknowledgeoftherequirementsforlawful use of the restrictive practice;
andPage 242Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 259](ii)hastheskillsandknowledgerequiredtousetherestrictive practice appropriately;
and(c)monitoruseoftherestrictivepracticetosafeguardagainst abuse,
neglect or exploitation; and(d)review use of the restrictive practice at
least once every9 months; and(e)ifthepolicyisaboutrestrictingaccess—minimisetheimpact on other persons living at the
premises.(3)Subsection (2) does not limit the
matters that may be stated inthe
policy.(4)The policy must ensure appropriate
regard is had to linguisticandculturaldiversityandAboriginaltraditionandIslandcustom.Editor’s note—For
definitionsAboriginal traditionandIsland custom, see theActsInterpretation
Act 1954, section 36.(5)The
chief executive must keep a copy of the policy availableforinspectionfreeofchargebyrelevantserviceprovidersat—(a)the department’s head office and
regional offices; and(b)other places the
chief executive considers appropriate.(6)Also,thechiefexecutivemustpublishthepolicyonthedepartment’s website on the
internet.(7)This section stops applying on the day
after the transitionalperiod ends.259Short
term approvals not to be given during transitionalperiod(1)Sections 153 and 170 and part 6, division 4,
subdivision 4 donot apply during the transitional
period.(2)In this section—Current as at
[Not applicable]Page 243
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 260]transitionalperiodmeanstheperiodstartingonthecommencementandendingonthedateofassentoftheCriminal History Screening Legislation
Amendment Act 2010.Division 4Transitional
provision for CriminalCode and Other Acts AmendmentAct
2008260References in schs 2 and 4 to Criminal
Code offenceSchedules 2and4applyasifareferencetotheCriminalCode, section 208 included a reference to
the Criminal Code,section 209asinforceatanytimebeforeitsrepealbytheCriminal Code and Other Acts Amendment
Act 2008.Division 5Transitional
provisions for CriminalHistory Screening LegislationAmendment Act 2010Subdivision
1Preliminary261Definition for div 5In this
division—amendingActmeanstheCriminalHistoryScreeningLegislation
Amendment Act 2010.Subdivision 2Transitional
provisions relating toprevious part 9262Definitions for sdiv 2In this
subdivision—Page 244Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 263]commencementmeans the
commencement of this section.engaged by the
departmentmeans engaged by the departmentas
defined under section 63 of the unamended Act.prescribedpoliceinformationmeansareportorotherinformationmentionedinsection 70(2)oftheunamendedAct.unamended Actmeans this Act
as in force from time to timebefore the
commencement.263Notice about change in criminal
history not given at thecommencement(1)This
section applies if—(a)beforethecommencement,thereisachangeinthecriminal history
of a person engaged by the department;and(b)at the commencement, the person has
not disclosed thedetails of the change to the chief executive
as requiredby section 67 of the unamended Act;
and(c)thepersonisengagedbythedepartmentataserviceoutlet of the
department.(2)Section 76appliesinrelationtothechangeintheperson’scriminal
history.Note—See also
thePublic Service Act 2008, sections 155B
and 257.264Request for prescribed police
information not compliedwith at the commencement(1)This section applies if—(a)thechiefexecutivehas,undersection
70oftheunamendedAct,askedthepolicecommissionerforprescribed police information about a
person; andCurrent as at [Not applicable]Page
245
Disability Services Act 2006Part 9
Repeal and transitional provisions[s 265](b)at the commencement, the police
commissioner has notgiventheprescribedpoliceinformationtothechiefexecutive.(2)Despitesection
70(3)oftheunamendedAct,thepolicecommissioner is
no longer required to comply with the chiefexecutive’s
request.Notauthorised—indicativeonly265Particular
prescribed police information obtained but notused before
commencement(1)This section applies if—(a)beforethecommencement,thepolicecommissionergavethechiefexecutiveaperson’sprescribedpoliceinformation under section 70 of the
unamended Act; and(b)atthecommencement,thechiefexecutivehasnot,inrelationtotheprescribedpoliceinformation,madeanassessmentabouttheperson’ssuitabilityforengagement,orcontinuedengagement,bythedepartment 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 continuedengagement, of the person by the
department—(a)if the person is engaged or to be
engaged at a service outlet of thedepartment—part
5;(b)ifthepersonisengagedortobeengagedinregulatedemployment—the
Working with Children Act, chapter 8 and thePublic Service
Act 2008, chapter 5, part 6, division 3A;(c)in any other case—thePublic Service Act 2008, chapter 5,
part 6.266Notice not given by prosecuting
authority at thecommencement(1)This
section applies if—Page 246Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 267](a)beforethecommencement,apersonengagedbythedepartment is
charged with an indictable offence; and(b)atthecommencement,thepolicecommissionerordirectorofpublicprosecutions(aprosecutingauthority)
has not given information about the charge tothechiefexecutiveasrequiredbysection 71oftheunamended Act.(2)Despitesection
71oftheunamendedAct,theprosecutingauthority is no
longer required to give the information to thechief
executive.267Use of particular information obtained
beforecommencementSection
72(2)oftheunamendedActcontinuestoapplyinrelation to information about a person
received by the chiefexecutiveunderpart9oftheunamendedActasiftheamending Act had not been
enacted.Subdivision 3Transitional
provisions relating toparticular amendments of part 5268Explanation of sdiv 3(1)Theamendmentsofprovisionsofpart5ofthisActbytheamending Act are
to commence in 2 stages.(2)Thissubdivisionprovidesforparticulartransitionalarrangements for
amendments of provisions of part 5 that areto commence in
the first of the 2 stages.269Definitions for
sdiv 3In this subdivision—commencementmeans the
commencement of this section.stage2commencementdatemeansthedaysubdivision4commences.Current as at
[Not applicable]Page 247
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 270]unamended Actmeans this Act
as in force from time to timebefore the
commencement.270New serious offences(1)The amendment of section 47 by the
amending Act does notaffect a positive notice that is in
force at the commencement.(2)Without limiting
subsection (1), the chief executive may notcancel a
person’s positive notice on the basis the person wouldnot
have been issued a positive notice under this Act becausethepersonwaschargedwithor
convictedofanewseriousoffence before
the commencement.(3)However,subsections
(1)and(2)donotpreventthechiefexecutive having
regard to a charge or conviction of a personforanewseriousoffencehappeningbeforethecommencement in making a decision about the
person if—(a)thedecisionisbeingmadeunderthisActafterthecommencement—(i)becausetherehasbeenachangeintheperson’scriminal
history; or(ii)because the
chief executive has become aware ofthe charge or
conviction (but was not aware of it atthe time the
positive notice was issued); or(b)thedecisionrelatestoaprescribednoticeapplicationabout the
person—(i)to which section 271 applies;
or(ii)made after the
commencement.(4)In this section—new serious
offencemeans an offence that—(a)is a
serious offence under this Act; but(b)was
not a serious offence under section 47 as in forceimmediately before the commencement.Page
248Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 271]271Existing applications for prescribed
notice(1)This section applies if—(a)a prescribed notice application has
been made about aperson; and(b)the
application has not been decided or withdrawn at thecommencement.(2)ThisActappliestotheapplicationand,iftheapplicationcomplieswiththerequirementsoftheunamendedAct,theapplication is not invalid only
because it does not comply withthis Act as in
force immediately after the commencement.272Continuation if chief executive acting on
own initiative(1)This section applies if—(a)beforethecommencement,thechiefexecutivehadstarted on the chief executive’s own
initiative to exercisea power in relation to a person or a
prescribed notice;and(b)thechiefexecutivemay,immediatelyafterthecommencement, exercise the power under
this Act.(2)The chief executive may continue to
exercise the power underthis Act in relation to the person or
prescribed notice.273Replacement of positive notice or
positive notice card(1)This section
applies if—(a)aperson’scurrentpositivenoticeorcurrentpositivenotice card is lost or stolen 14 days or
less before thecommencement; and(b)at
the commencement, the person has not applied for areplacement notice or card as required under
section 106of the unamended Act.(2)Section 106oftheunamendedActdoesnotapplytotheperson.Current as at
[Not applicable]Page 249
Disability Services Act 2006Part 9
Repeal and transitional provisions[s 274](3)Section 106 as in force after the
commencement applies to theperson as if the
reference to 14 days after the loss or theft werea
reference to the later of the following—(a)14
days after the loss or theft;(b)7
days after the commencement.Notauthorised—indicativeonly274Existing reviews
and appeals(1)This section applies if—(a)before the commencement, a
person—(i)appliedforareviewofadecisionofthechiefexecutiveundersection
108or113(2)(a)oftheunamended Act; or(ii)appealed under the QCAT Act against a
decision ofthe tribunal relating to a review under
section 108or 113(2)(a) of the unamended Act;
and(b)therevieworappealhasnotbeendecidedatthecommencement.(2)The
entity hearing the review or appeal must apply this Act inrelation to the matter the subject of the
review or appeal.(3)Withoutlimitingsubsection (2),theentitymayexerciseapowerofthechiefexecutiveunderpart5fordecidingareviewofadecisionofthechiefexecutive,oranappealagainst a
decision of the tribunal, as to whether or not there isan
exceptional case for a person.275Police commissioner’s decision that
information isinvestigative information(1)Thissectionappliesinrelationtoanoffence(newinvestigative information
offence) that—(a)is a
schedule 6 offence; but(b)was not a
serious sexual or violent offence within themeaning of that
term under the unamended Act.Page 250Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 276](2)Section 111appliesinrelationtoapositivenoticeholder’sacts or
omissions constituting a new investigative informationoffenceeveniftheactswere
committedoromissionsweremade
before the commencement of this section.(3)In
this section—schedule 6offenceseesection 111asinforcebeforethecommencement of theCriminal Law (Child Exploitation andDangerous Drugs) Amendment Act 2013,
section 29.276References to exemption notices
etc.(1)The purpose of this section is to
explain references to any ofthefollowinginaprovisionofthisActasinforceimmediately after the commencement—(a)an exemption notice
application;(b)an exemption notice;(c)apositiveexemptionnoticeornegativeexemptionnotice;(d)a
provision of proposed part 5, division 6.(2)Proposedpart5,division6providesforthemakingofanexemption notice application and the
issue of an exemptionnotice to a person who holds a CCYPCG
positive notice.(3)An exemption notice issued under
proposed part 5, division 6maybeapositiveexemptionnoticeornegativeexemptionnotice.(4)Proposedpart5,division6istocommenceatthestage2commencement date, which is after the
commencement.(5)A reference in part 5 to a thing
mentioned in subsection (1)(a)to(d)doesnothaveanyeffectuntilthestage2commencement date.(6)In
this section—proposed part 5, division 6means part 5, division 6 of thisAct
to be inserted by the amending Act.Current as at
[Not applicable]Page 251
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 277]277References to eligibility declarations
etc.(1)The purpose of this section is to
explain references to any ofthefollowinginaprovisionofthisActasinforceimmediately after the commencement—(a)an eligibility application;(b)an eligibility declaration;(c)a provision of proposed part 5,
division 10.(2)Proposedpart5,division10providesforthemakingofaneligibilityapplicationandtheissueofaneligibilitydeclaration to a
person.(3)Proposedpart5,
division10 istocommenceatthestage2commencement date, which is after the
commencement.(4)A reference in part 5 to a thing
mentioned in subsection (1)(a)to(c)doesnothaveanyeffectuntilthestage2commencement date.(5)In
this section—proposed part 5, division 10means part 5, division 10 of thisAct
to be inserted by the amending Act.Subdivision
4Transitional provisions relating toother amendments of part 5278Explanation of sdiv 4(1)Theamendmentsofprovisionsofpart5ofthisActbytheamending Act are
to commence in 2 stages.(2)Thissubdivisionprovidesforparticulartransitionalarrangements for
amendments of provisions of part 5 that areto commence in
the second of the 2 stages.279Definitions for
sdiv 4In this subdivision—Page 252Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 280]commencementmeans the
commencement of this section.unamended
Actmeans this Act as in force from time to
timebefore the commencement.280Obtaining particular information from
policecommissioner about particular persons(1)This section applies in relation to a
person if—(a)the person—(i)has
a current positive notice; or(ii)isthesubjectofanapplicationforaprescribednotice that has
not been decided or withdrawn atthe
commencement; or(iii)has made an
application for the cancellation of theperson’s
negative notice, or the cancellation of thesuspension of
the person’s positive notice, that hasnotbeendecidedorwithdrawnatthecommencement; and(b)undersection
117,thechiefexecutiverequestedinformation from
the police commissioner, or access tothepolicecommissioner’srecords,aboutthepersonbefore the
commencement.(2)If,atthecommencement,thepolicecommissionerhascompliedwiththerequest,thechiefexecutivemayaskthepolice commissioner for information, or
access to the policecommissioner’s records, to enable the
chief executive to learnwhether there is any new police
information about the person.(3)Section 117 applies in relation to the chief
executive’s requestunder subsection (2) as if it were made
under section 117(2)in relation to only new police
information.(4)If,atthecommencement,thepolicecommissionerhasnotcompliedwiththerequest,section
117asinforcefromthecommencement applies in relation to the
request.(5)In this section—Current as at
[Not applicable]Page 253
Disability Services Act 2006Part 9
Repeal and transitional provisions[s 281]newpoliceinformationmeansinformationmentionedinsection 117(7) or (8).Notauthorised—indicativeonly281Existing
applications for prescribed notice about adisqualified
person who is not a relevant disqualifiedperson(1)This section applies to a prescribed
notice application madebefore the commencement if the
application—(a)hasnotbeendecidedorwithdrawnatthecommencement; and(b)relates to a person who is a disqualified
person but not arelevant disqualified person.(2)If,atthetimeoftheapplication,thepersondidnotholdapositive notice or held a positive notice
that was suspendedunder section 86—(a)the
application is taken to have been withdrawn; and(b)the chief executive must give notice
of the withdrawal tothepersonandthefundednon-governmentserviceprovider who made the application.(3)If, at the time of the application,
the person held a positivenotice that was not suspended under
section 86—(a)thepersonistakentohavebeenissuedwithaneligibilitydeclarationotherthanforsection 54(6)(b);and(b)thechiefexecutivemustdecidetheapplicationunderthis
Act.(4)Subjecttosubsection (5),thisActappliestoanapplicationmentionedinsubsection (3)(b)and,iftheapplicationcomplieswiththerequirementsoftheunamendedAct,theapplication is not invalid only
because it does not comply withthis Act as in
force immediately after the commencement.(5)Despitesection
58(2),aprescribednoticeissuedundersubsection (3)(b) in relation to a
prescribed notice applicationmade before the
commencement remains current for 2 yearsPage 254Current as at [Not applicable]
Disability Services Act 2006Part
9 Repeal and transitional provisions[s 282]afteritisissued,unlessitisearliercancelledunderpart5,division 8.Notauthorised—indicativeonly282Existing applications for prescribed
notice about arelevant disqualified person(1)This section applies to a prescribed
notice application madebefore the commencement if the
application—(a)hasnotbeendecidedorwithdrawnatthecommencement; 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 theperson and the funded non-government service
provider whomade the application.283Other
existing applications for prescribed notice(1)This
section applies if—(a)a prescribed notice application has
been made about aperson; and(b)the
application has not been decided or withdrawn at thecommencement; and(c)neithersection
281norsection 282appliestotheapplication.(2)Subject to subsection (3), this Act applies
to the applicationand, if the application complies with the
requirements of theunamended Act, the application is not
invalid only because itdoes not comply with this Act as in
force immediately afterthe commencement.(3)Despitesection
58(2),aprescribednoticeissuedundersubsection (2)inrelationtoaprescribednoticeapplicationmade before the
commencement remains current for 2 yearsafteritisissued,unlessitisearliercancelledunderpart5,division 8.Current as at
[Not applicable]Page 255
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 284]284Existing positive notices held by
disqualified personswho are not relevant disqualified
persons(1)Thissectionappliesinrelationtoapositivenoticeissuedunder section
54(2)(a) before the commencement to a personwho is a
disqualified person but who is not—(a)a
relevant disqualified person; or(b)apersoninrelationtowhomthechiefexecutivehasstarted, before the commencement, to
exercise a powerunder section 83.(2)If,
at the commencement, the positive notice is not suspendedunder section 86, the person is taken to
have been issued withan eligibility declaration.(3)If,atthecommencement,thepositivenoticeissuspendedunder section
86, this Act continues to apply in relation to thepositive notice.(4)If,
after the commencement, the chief executive is to make adecision about the person under section 54,
and it is the firsttimethechiefexecutiveistomakeadecisionunderthatsectionaboutthepersonafterthecommencement,section 54(6)(b)
does not apply to the chief executive makingthe
decision.(5)Without limiting subsection (3), the
chief executive may haveregardtoachargeorconvictionofapersonforanewdisqualifying
offence happening before the commencement inmaking a
decision about the person or the person’s positivenotice under this Act.(6)In
this section—new disqualifying offencemeans an offence that—(a)is a
disqualifying offence under this Act; but(b)wasnotanexcludingoffenceundersection
81asinforce
immediately before the commencement.Page 256Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 285]285Existing positive notices held by
relevant disqualifiedperson because of temporary or interim
order(1)Thissectionappliesinrelationtoapositivenoticeissuedundersection 54(2)beforethecommencement(includingapositivenoticethatissuspendedundersection 86atthecommencement)toapersonwhoisarelevantdisqualifiedperson only
because the person is subject to either or both ofthe
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 thecommencement,
the chief executive must, by notice given tothe person,
suspend the person’s positive notice.(3)The
notice must state the matters mentioned in section 86(2).(4)Ifthepositivenoticeissuspendedundersection 86atthecommencement,thesuspensioncontinuessubjecttosubsection (5).(5)Sections 86 and 87 apply to the suspended
positive notice as ifthenoticeweresuspendedundersection
86(1)asinforceimmediately after the commencement.286Existing positive notices held by
other relevantdisqualified person(1)Thissectionappliesinrelationtoapositivenoticeissuedundersection 54(2)beforethecommencement(includingapositivenoticethatissuspendedundersection 86atthecommencement)toapersonwhoisarelevantdisqualifiedperson other
than a relevant disqualified person mentioned insection 285(1).(2)The
positive notice is cancelled.(3)Ifthepositivenoticeissuspendedundersection 86atthecommencement,anyapplicationforthecancellationofthesuspensionundersection 87thathasnotbeendecidedorwithdrawnatthecommencementistakentohavebeenwithdrawn.Current as at
[Not applicable]Page 257
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 287](4)The chief executive must give notice
of the cancellation of thepositive notice to—(a)the person; and(b)the
funded non-government service provider who—(i)isengagingthepersonataserviceoutletoftheservice
provider; or(ii)if the positive
notice is suspended under section 86atthecommencement—wasengagingthepersonataserviceoutletoftheserviceproviderimmediatelybeforethepositivenoticewassuspended.(5)A
notice mentioned in subsection (4)—(a)must
state that the positive notice is cancelled and thedate
the positive notice is cancelled; and(b)istaken,forsections 70and71,tobeanoticethatanegative notice has been issued to the
person on the datethe positive notice is cancelled.287Currency of existing prescribed
notices(1)Apositivenoticeinforceatthecommencementremainscurrent for 2 years after it was issued
under the unamendedAct, unless it is earlier cancelled under
part 5, division 8.(2)Subsection (1) applies despite section
58(2).288Existing applications to cancel
negative notice byrelevant disqualified person(1)This section applies if—(a)apersonwhoisarelevantdisqualifiedpersonhasappliedtothechiefexecutivetocanceltheperson’snegative notice
under section 82 or 83(3); and(b)the
application has not been decided or withdrawn at thecommencement.Page 258Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
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 theperson.289Other
existing applications to cancel a negative notice(1)This section applies if—(a)a person has applied to the chief
executive to cancel theperson’s negative notice under section
82 or 83(3); and(b)the application has not been decided
or withdrawn at thecommencement; and(c)section 288 does not apply to the
application.(2)ThischiefexecutivemustdecidetheapplicationunderthisAct.(3)For subsection (2), an application
made under section 101(3)oftheunamendedActistakentohavebeenmadeundersection 82.290Continuation if chief executive acting on
own initiative(1)This section applies if—(a)beforethecommencement,thechiefexecutivehadstarted on the chief executive’s own
initiative to exercisea power in relation to a person or a
prescribed notice;and(b)thechiefexecutivemay,immediatelyafterthecommencement, exercise the power under
this Act.(2)The chief executive may continue to
exercise the power underthis Act in relation to the person or
prescribed notice.(3)Forsubsection
(1)(b),thechiefexecutive’spowerundersection 103 of
the unamended Act is taken to be exercisable,immediatelyafterthecommencement,undersection 83(1)(b)(ii).Current as at
[Not applicable]Page 259
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 291]291Application of s 97 and sch 8,
definitionrelevantdisqualified
personForsection 97(1)(a)andschedule 8,definitionrelevantdisqualified person, paragraph (a),
it is immaterial as to whentheoffencementionedintheprovisionwascommittedorwhenthepersontowhomtheprovisionapplieswasconvicted.Example—An
offence may have been committed, and the person convicted of
theoffence, before the commencement.292Application of s 98(1)This section applies in relation to a
person who—(a)is a disqualified person; and(b)atthecommencement,isengagedbyafundednon-government
service provider at a service outlet ofthe service
provider; and(c)isnotapersoninrelationtowhomsection
281(3)or284(2) applies.(2)Toremoveanydoubt,itisdeclaredthatsection 98(1)(b)applies to the
person even if it is not an offence for a fundednon-governmentserviceprovidertoengagethepersonataservice outlet of the service
provider.293Existing reviews and appeals by
disqualified person(1)This section applies if—(a)before the commencement, a
person—(i)appliedforareviewofadecisionofthechiefexecutiveundersection
108or113(2)(a)oftheunamended Act; or(ii)appealed under the QCAT Act against a
decision ofthe tribunal relating to a review under
section 108or 113(2)(a) of the unamended Act;
andPage 260Current as at
[Not applicable]
Disability Services Act 2006Part
9 Repeal and transitional provisions[s 294](b)therevieworappealhasnotbeendecidedatthecommencement;
and(c)the person is a disqualified
person.(2)Theentityhearingtherevieworappealmustdismissthereview or appeal.Notauthorised—indicativeonly294Other existing reviews and
appeals(1)This section applies if—(a)before the commencement, a
person—(i)appliedforareviewofadecisionofthechiefexecutiveundersection
108or113(2)(a)oftheunamended Act; or(ii)appealed under the QCAT Act against a
decision ofthe tribunal relating to a review under
section 108or 113(2)(a) of the unamended Act;
and(b)therevieworappealhasnotbeendecidedatthecommencement;
and(c)the person is not a disqualified
person.(2)The entity hearing the review or
appeal must apply this Act inrelation to the
matter the subject of the review or appeal.(3)Forsubsection (2),areviewundersection 108oftheunamended Act is taken to be a review
under section 109.(4)Withoutlimitingsubsection (2),theentitymayexerciseapowerofthechiefexecutiveunderpart10fordecidingareviewofadecisionofthechiefexecutive,oranappealagainst a
decision of the tribunal, as to whether or not there isan
exceptional case for a person.295Disqualification orders for acts done or
omissions madebefore commencementA court may make
a disqualification order under section 137inrelationtoapersonconvictedofanoffenceaftertheCurrent as at [Not applicable]Page
261
Disability Services Act 2006Part 9
Repeal and transitional provisions[s 296]commencement arising out of an act done or
omission madebefore the commencement.Notauthorised—indicativeonly296Continuing
engagement of volunteers(1)This section
applies if—(a)immediatelybeforethecommencement,apersonwasengaged by a funded non-government service
providerat 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)thereisacurrentprescribednoticeapplicationabout the
person.(2)The funded non-government service
provider—(a)maycontinuetoengagethepersonintheregulatedengagementeventhoughthepersondoesnothaveacurrent positive notice; and(b)does not commit an offence against
section 68 for thecontinued 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 anotice by the chief executive that a
negative notice hasbeenissuedtothepersonortheapplicationiswithdrawn.297Provision about persons engaged to provide
disabilityservices only to children(1)Sections 281 to 283 apply in relation
to a prescribed noticeapplication about a person engaged, or
to be engaged, by afunded non-government service provider to
provide disabilityservices only to children.Page
262Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 298](2)Sections284to287applyinrelationtoacurrentpositivenotice held by a person engaged by a funded
non-governmentserviceprovidertoprovidedisabilityservicesonlytochildren.(3)A
current positive notice card or current negative notice heldbyapersonengagedbyafundednon-governmentserviceprovidertoprovidedisabilityservicesonlytochildrencontinues
subject to section 58.(4)This section
applies despite section 42.(5)In
this section—current, for a
prescribed notice or positive notice card, meanscurrent under section 58 at the
commencement.Note—See the CCYPCG
Act, chapter 8 for obligations relating to childrendisability services.298Provision about holders of CCYPCG positive
notice(1)Sections 281 to 283 apply in relation
to a prescribed noticeapplicationabouttheholderofaCCYPCGpositivenoticedespite section
51.(2)Sections284to287applyinrelationtoacurrentpositivenotice held by the holder of a CCYPCG
positive notice at thecommencement despite section
51.(3)A current positive notice card or
current negative notice heldbytheholderofaCCYPCGpositivenoticeatthecommencementcontinuesineffectdespitesection 51butsubject to section 58.(4)Section 95appliestoacurrentpositivenoticeorcurrentnegativenoticeheldbytheholderofaCCYPCGpositivenotice at the
commencement.(5)Acourtmaymakeanorderundersection 137beforethecommencement stating that a person who
holds a CCYPCGpositive notice—Current as at
[Not applicable]Page 263
Disability Services Act 2006Part 9
Repeal and transitional provisions[s 299](a)may not hold a positive exemption
notice, or apply foran exemption notice, for a stated
period; or(b)may never hold a positive exemption
notice or apply foran exemption notice.Notauthorised—indicativeonlySubdivision 5Other
transitional provision299References to
Youth Justice Act 1992(1)ThissectionappliestoareferencetotheYouthJusticeAct1992in a provision
of this Act if the provision commencesbefore the JJA
short title amendment commences.(2)Until the JJA short title amendment
commences, the referenceis taken to be a reference to
theJuvenile Justice Act 1992.(3)In this section—JJAshorttitleamendmentmeanstheJuvenileJusticeandOther Acts Amendment Act 2009,
section 9.Division 6Provision for
the Health PractitionerRegistration and Other
LegislationAmendment Act 2013300Application of pt 5 to former registered
speechpathologist(1)Section 43 continues to apply to the
engagement of a formerregistered speech pathologist to the
extent mentioned in thatsection for a period of 3 months after
the commencement.(2)In this section—commencementmeans the
commencement of this section.formerregisteredspeechpathologistmeansapersonwho,immediately before the commencement, was
registered underthe repealedSpeech
Pathologists Registration Act 2001.Page
264Current as at [Not applicable]
Notauthorised—indicativeonlyDivision 7Disability
Services Act 2006Part 9 Repeal and transitional
provisions[s 301]Transitional
provisions for CriminalLaw (Child Exploitation andDangerous Drugs) Amendment Act2013Subdivision
1Interpretation301Definitions for div 7In this
division—amended Actmeans this Act
as amended by theCriminal Law(ChildExploitationandDangerousDrugs)AmendmentAct2013.commencementmeans the
commencement of this section.new disqualified
personmeans a person who is a disqualifiedpersononlybecausethepersonhasbeenconvictedorisconvicted of a
new disqualifying offence.newdisqualifyingoffencemeansanoffencethatisadisqualifyingoffenceunderthisActbutwasnotadisqualifying
offence under this Act immediately before thecommencement.newrelevantdisqualifiedpersonmeansapersonwhoisarelevant
disqualified person only because the person has beenconvicted or is convicted of a new
disqualifying offence forwhich an imprisonment order has been
or is imposed.new serious offencemeans an offence
that is a serious offenceunder this Act but was not a serious
offence under this Actimmediately before the
commencement.Current as at [Not applicable]Page
265
Disability Services Act 2006Part 9
Repeal and transitional provisions[s 302]Subdivision 2Prescribed
notice applications andprescribed noticesNotauthorised—indicativeonly302Existing
prescribed notice application by new relevantdisqualified
person(1)This section applies if—(a)beforethecommencementaprescribednoticeapplication had been made about a person;
and(b)immediately before the commencement
the applicationhad not been decided or withdrawn;
and(c)atthecommencementthepersonisanewrelevantdisqualified person.(2)The
person’s application is taken to be withdrawn.(3)Thechiefexecutivemustgivewrittennoticeaboutthewithdrawaloftheapplicationtothepersonandthefundednon-government
service provider who made the application.303Existing prescribed notice application if
person chargedwith new disqualifying offence or is new
disqualifiedperson but not new relevant disqualified
person(1)This section applies if—(a)beforethecommencementaprescribednoticeapplication had been made about a person;
and(b)immediately before the commencement
the applicationhad 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 relevantdisqualified
person.Note—If a person
holds a positive notice, see also sections 306 and 307.(2)Subsection (3) applies if—Page
266Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 303](a)at the commencement the person is
charged with a newdisqualifying offence; or(b)at the commencement the person is a
new disqualifiedperson but not a new relevant disqualified
person and, atthe time of making the application—(i)was not issued, or not taken to have
been issued, aneligibility 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 thewithdrawaloftheapplicationtothepersonandthefunded non-government service provider
who made theapplication.Note—Ifapersonchargedwithanewdisqualifyingoffencealsoholdsapositive notice, see also sections 307
and 86.(4)Subsection (5)appliesifthepersonisanewdisqualifiedperson but not a
new relevant disqualified person and at thetime of making
the application the person—(a)wasnotissued,ornottakentohavebeenissued,aneligibility declaration; and(b)held a positive notice that was not
suspended.(5)At the commencement—(a)thepersonistakentohavebeenissuedaneligibilitydeclaration
other than for section 54(6)(b); and(b)the
chief executive must decide the application under theamended Act.(6)Ifthepersonisanewdisqualifiedpersonbutnotanewrelevant disqualified person and, at
the time of the applicationthepersonwasissuedaneligibilitydeclaration,atthecommencementthechiefexecutivemustdecidetheCurrent as at [Not applicable]Page
267
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 304]application under the amended Act but
section 54(6)(b) doesnot apply to the chief executive
making the decision.(7)For subsections
(3) and (6), if before the commencement thechiefexecutivehad,undersection
82,cancelledanegativenoticeissuedtotheperson,onthecommencementsection 54(6)(a)
does not apply to the chief executive makingthe
decision.304Other existing prescribed notice
applications(1)This section applies if—(a)beforethecommencementaprescribednoticeapplication had been made about a person;
and(b)immediately before the commencement
the applicationhad not been decided or withdrawn;
and(c)section 302 or 303 does not
apply.(2)Atthecommencementthechiefexecutivemustdecidetheapplication under the amended
Act.305Current positive notice for new
relevant disqualifiedperson(1)This
section applies if—(a)beforethecommencementapersonheldapositivenotice;
and(b)immediately before the commencement
the notice wascurrent; and(c)atthecommencementthepersonisanewrelevantdisqualified person.(2)At
the commencement the amended Act applies and the chiefexecutivemustcanceltheperson’spositivenoticeandsubstitute a negative notice under section
85.Note—Under section
80, a person must return their cancelled positive noticeand
any positive notice card issued to the person to the chief
executive.Page 268Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 306](3)Also, if the positive notice is
suspended under section 86 atthe
commencement, any application for the cancellation of thesuspensionundersection 87thathasnotbeendecidedorwithdrawnatthecommencementistakentohavebeenwithdrawn.(4)Thechiefexecutivemustgivewrittennoticeaboutthewithdrawaloftheapplicationundersubsection (3)totheperson and the funded non-government
service provider whomade the application.306Current positive notice for new
disqualified person otherthan new relevant disqualified
person(1)This section applies if—(a)beforethecommencementapersonheldapositivenotice;
and(b)immediately before the commencement
the notice wascurrent; and(c)at
the commencement the person is a new disqualifiedperson but not a new relevant disqualified
person.(2)If,atthecommencement,theperson’spositivenoticeissuspendedundersection 86,theamendedActappliesinrelation to the positive notice.(3)If, at the commencement, the person is
not issued, or not takento have been issued, an eligibility
declaration and the person’spositive notice
is not suspended under section 86—(a)thepersonistakentohavebeenissuedaneligibilitydeclaration
under section 101; and(b)theamendedActappliesinrelationtothepositivenotice.(4)If,atthecommencement,thepersonisissued,ortakentohave
been issued, an eligibility declaration and the person’spositivenoticeisnotsuspendedundersection
86,theamendedActappliesinrelationtotheperson’spositivenotice.Current as at
[Not applicable]Page 269
Disability Services Act 2006Part 9
Repeal and transitional provisions[s 307](5)If, after the commencement, the chief
executive is to make adecision about the person under
section 54, and it is the firsttimethechiefexecutiveistomakeadecisionunderthatsectionaboutthepersonafterthecommencement,section 54(6)(b)
does not apply to the chief executive makingthe
decision.Notauthorised—indicativeonly307Other current
positive notices(1)This section applies if—(a)beforethecommencementapersonheldapositivenotice;
and(b)immediatelybeforethecommencementthepositivenotice was
current; and(c)section 305 or 306 does not
apply.(2)The amended Act applies to the
person’s positive notice.Subdivision 3Exemption notice
applications andexemption notices308Existing exemption notice application by new
relevantdisqualified person or person charged with a
newdisqualifying offence(1)This
section applies if—(a)beforethecommencementanexemptionnoticeapplication was made about a person;
and(b)immediately before the commencement
the applicationhas not been decided or withdrawn;
and(c)at the commencement—(i)the person is a new relevant
disqualified person; or(ii)thepersonischargedwithanewdisqualifyingoffence.(2)The application is taken to be
withdrawn.Page 270Current as at
[Not applicable]
Disability Services Act 2006Part
9 Repeal and transitional provisions[s 309](3)Thechiefexecutivemustgivewrittennoticeaboutthewithdrawaloftheapplicationtothepersonandthefundednon-government
service provider who made the application.Notauthorised—indicativeonly309Existing exemption notice application
if person is newdisqualified person but not new relevant
disqualifiedperson(1)This
section applies if—(a)beforethecommencementanexemptionnoticeapplication was made about a person;
and(b)immediately before the commencement
the applicationhad not been decided or withdrawn;
and(c)at the commencement the person is a
new disqualifiedperson but not a new relevant disqualified
person.(2)Atthecommencementthechiefexecutivemustdecidetheapplication under the amended
Act.(3)However, if before the commencement
the chief executive hadunder section 82 cancelled a negative
exemption notice issuedto the person, on the commencement
section 54(6)(a) does notapply to the chief executive making
the decision.(4)The chief executive may only act under
section 61(3) if thechiefexecutivehasactedundersection 62afterthecommencement.310Other
existing exemption notice applications(1)This
section applies if—(a)beforethecommencementanexemptionnoticeapplication was made about a person;
and(b)immediately before the commencement
the applicationhad not been decided or withdrawn;
and(c)section 308 or 309 does not
apply.(2)Atthecommencementthechiefexecutivemustdecidetheapplication under the amended
Act.Current as at [Not applicable]Page
271
Disability Services Act 2006Part 9
Repeal and transitional provisions[s 311](3)Also, the chief executive may only act
under section 61(3) ifthechiefexecutivehasactedundersection 62afterthecommencement.Notauthorised—indicativeonly311Current positive
exemption notice for person whoseCCYPCG positive
notice is cancelled(1)This section applies if—(a)beforethecommencementapersonheldapositiveexemption
notice; and(b)immediately before the commencement
the notice wascurrent; and(c)atthecommencementthepersonnolongerholdsaCCYPCG positive notice.(2)At the commencement the person’s
positive exemption noticeceases to have effect under section
64.(3)Section 90 applies in relation to the
positive exemption notice.Note—1Section 90(2) requires the chief executive
to give notice to a personif the person’s positive exemption
notice has ceased to have effectunder section
64.2Section 90(5) requires the person to
return their positive exemptionnotice to the
chief executive.(4)Also, if the person’s positive
exemption notice was suspendedunder section 88
immediately before the commencement, anyapplicationforthecancellationofthesuspensionundersection 89thathasnotbeendecidedorwithdrawnatthecommencement is taken to have been
withdrawn.(5)Thechiefexecutivemustgivewrittennoticeaboutthewithdrawaloftheapplicationundersubsection (4)totheperson and the funded non-government
service provider whomade the application.312Other positive exemption
notices(1)This section applies if—Page
272Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 313](a)beforethecommencementapersonheldapositiveexemption
notice; and(b)immediately before the commencement
the notice wascurrent; and(c)section 311 does not apply.(2)AtthecommencementtheamendedActappliestothepositive exemption notice.Subdivision 4Existing
applications forcancellation or ending suspensionof
prescribed notices andexemption notices313Existing applications to cancel negative
notice ornegative exemption notice(1)This section applies if—(a)before the commencement a person had
applied to thechief executive to cancel the person’s
negative notice ornegative exemption notice under section 82;
and(b)immediately before the commencement,
the applicationhad 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 aboutthe 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 theamended Act.Current as at
[Not applicable]Page 273
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 314]314Existing application to end suspension
of positive noticefor person other than new relevant
disqualified person(1)This section applies if—(a)before the commencement a person had
applied to thechiefexecutivetocanceltheperson’ssuspendedpositive notice under section 87; and(b)immediately before the commencement
the applicationhad not been decided; and(c)at the commencement the person is not
a new relevantdisqualified person.(2)Atthecommencementthechiefexecutivemustdecidetheapplication under the amended
Act.315Existing application to end suspension
of positiveexemption notice for person other than new
relevantdisqualified person(1)This
section applies if—(a)before the commencement a person had
applied to thechiefexecutivetocanceltheperson’ssuspendedpositive exemption notice under section 89;
and(b)immediately before the commencement
the applicationhad not been decided; and(c)at the commencement the person is not
a new relevantdisqualified person.(2)Atthecommencementthechiefexecutivemustdecidetheapplication under the amended
Act.Subdivision 5Eligibility
applications and eligibilitydeclarations316Existing eligibility application(1)This section applies if—Page
274Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 317](a)beforethecommencementapersonhadmadeaneligibilityapplicationtothechiefexecutiveundersection 99;
and(b)immediatelybeforethecommencementtheperson’seligibilityapplicationhadnotbeendecidedorwithdrawn.(2)Atthecommencementthechiefexecutivemustdecidetheapplication under the amended
Act.Note—The chief
executive may issue an eligibility declaration if the personhas
been convicted of a disqualifying offence and is not a
relevantdisqualified person. See section
101(1).317Current eligibility declaration for
new relevantdisqualified person or person charged with
newdisqualifying offence(1)This
section applies to a person if—(a)beforethecommencementthechiefexecutivehadissued,orwastakentohaveissued,thepersonaneligibility declaration; and(b)immediatelybeforethecommencementtheperson’seligibility
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 istaken to have expired.Note—If
the person also holds a positive notice, see sections 305 and
307.318Current eligibility declaration for
person convicted of newserious offence(1)This
section applies to a person if—Current as at
[Not applicable]Page 275
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 319](a)beforethecommencementthechiefexecutivehadissued,orwastakentohaveissued,thepersonaneligibility declaration; and(b)immediatelybeforethecommencementtheperson’seligibility
declaration had not expired; and(c)before the commencement the person was
convicted of anew serious offence.(2)At
the commencement—(a)theamendedActappliestotheperson’seligibilitydeclaration;
and(b)the person’s eligibility declaration
is taken to have beenissued on the commencement.(3)If, after the commencement, the chief
executive is to make adecision about the person under
section 54, and it is the firsttimethechiefexecutiveistomakeadecisionunderthatsectionaboutthepersonafterthecommencement,section 54(6)(b)
does not apply to the chief executive makingthe
decision.319Other eligibility declarations(1)This section applies to a person
if—(a)beforethecommencementthechiefexecutivehadissued,orwastakentohaveissued,thepersonaneligibility declaration; and(b)immediatelybeforethecommencementtheperson’seligibility
declaration had not expired; and(c)at
the commencement section 317 or 318 does not apply.(2)AtthecommencementtheamendedActappliestotheperson’s eligibility
declaration.320Existing application for reversal of
decision refusing aneligibility declaration(1)This
section applies if—Page 276Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 321](a)beforethecommencementapersonhadmadeanapplication under section 107(2) to the
chief executive;and(b)immediately
before the commencement the applicationhad not been
decided.(2)At the commencement the amended Act
applies and the chiefexecutive may decide the application
under the amended Act.Subdivision 6Reviews and
appeals321Undecided reviews and appeals by new
disqualifiedpersons(1)This
section applies if—(a)before the commencement, a
person—(i)applied, under section 109, for a
review of a part 5reviewable decision; or(ii)appealed, under the QCAT Act, against a
decisionofthetribunalrelatingtoapart5reviewabledecision;
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 tothe application
or appeal, must be dismissed—(a)if a
proceeding in relation to the application or appeal isbefore a court—by the court; or(b)otherwise—by the tribunal, even if the
dismissal wouldbe contrary to a direction of the Court of
Appeal.Current as at [Not applicable]Page
277
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 322]322Review of part 5 reviewable decision
about newdisqualified person(1)This
section applies if—(a)before the commencement—(i)thechiefexecutivemakesapart5reviewabledecision about a
person; and(ii)thepersonhasnotappliedforareviewofthedecision under section 109; and(b)thepersonisanewdisqualifiedpersonatthecommencement.(2)At
the commencement, the amended Act applies.Note—Under section 109, only a person who is not
a disqualified person mayapply for a review of a part 5
reviewable decision.323Appeal by new disqualified person
against decision oftribunal on review of part 5 reviewable
decision(1)This section applies if—(a)before the commencement, a person may
appeal underthe QCAT Act against a decision of the
tribunal relatingto a part 5 reviewable decision; and(b)at the commencement—(i)the time within which the person may
appeal underthe QCAT Act has not passed; and(ii)the person is a
new disqualified person.(2)Anyappealbythepersonagainstthedecisionmustbedismissed—(a)ifaproceedinginrelationtotheappealisbeforeacourt—by the court; or(b)otherwise—by the tribunal, even if the
dismissal wouldbe contrary to a direction of the Court of
Appeal.Page 278Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 324]324Existing appeal by chief executive
against decision oftribunal 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 tribunalrelating 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 inrelation to the matter the subject of the
appeal.325Appeal by chief executive against
decision of tribunal onreview of part 5 reviewable
decision(1)This section applies if—(a)beforethecommencement,thechiefexecutivemayappealundertheQCATActagainstadecisionofthetribunal relating to a part 5
reviewable decision about aperson;
and(b)at the commencement—(i)thetimewithinwhichthechiefexecutivemayappealundertheQCATAct(theappealperiod)has
not passed; and(ii)the person is a
new disqualified person.(2)Thechiefexecutivemayappealagainstthedecisionwithinthe
appeal period and the entity hearing the appeal must applythe
amended Act in relation to the matter the subject of theappeal.Current as at
[Not applicable]Page 279
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 326]326Existing reviews and appeals against
part 5 reviewabledecisions by persons other than new
disqualifiedpersons(1)This
section applies if—(a)before the commencement—(i)a person applied, under section 109,
for a review ofa part 5 reviewable decision; or(ii)thechiefexecutiveoranotherpersonappealed,undertheQCATAct,againstadecisionofthetribunalrelatingtoapart5reviewabledecision;and(b)at the
commencement—(i)the review or appeal has not been
decided; and(ii)thepersonaboutwhomthepart5reviewabledecisionwasmadeisnotanewdisqualifiedperson.(2)Theentityhearingtherevieworappealmustapplytheamended Act in relation to the matter the
subject of the reviewor appeal.(3)To
remove any doubt, it is declared that section 110 applies inrelation to the application for the
review.327Review of part 5 reviewable decision
about person otherthan new disqualified person(1)This section applies if—(a)before the commencement—(i)thechiefexecutivemakesapart5reviewabledecision about a
person; and(ii)thepersonhasnotappliedforareviewofthedecision under section 109; and(b)at the commencement—Page
280Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 328](i)theperiodwithinwhichthepersoncouldhaveappliedforareviewofthedecisionundersection 109
(thereview period) has not
passed; and(ii)the person is
not a new disqualified person.(2)Thepersonmayapplyforareviewofthedecisionundersection 109 within the review period.Subdivision 7Miscellaneous328Chief
executive acting on own initiative(1)This
section applies if—(a)beforethecommencementthechiefexecutivehadstarted,onthechiefexecutive’sowninitiative,toexercise 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 exercisethepowerundertheamendedActinrelationtotheperson, application or notice.(2)Thechiefexecutivemayexercisethepowerundertheamended Act in relation to the person,
application or notice.329Disqualification
orders for acts done or omissions madebefore
commencementA court may make a disqualification order
under section 137inrelationtoapersonconvictedofanoffenceafterthecommencement arising out of an act done or
omission madebefore the commencement.Current as at
[Not applicable]Page 281
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 330]330Effect of conviction or charge for new
disqualifyingoffence(1)Forapplyingsection
97(1)(a)andschedule 8,definitionrelevantdisqualifiedperson,paragraph(a),itisimmaterialwhen the offence
mentioned in the provision was committedorwhenthepersontowhomtheprovisionapplieswasconvicted.(2)Section 86 applies in relation to a person
who holds a currentpositivenoticewhoischargedwithanewdisqualifyingoffenceevenifthecharge,ortheactsoromissionsconstitutingtheallegedoffence,happenedbeforethecommencement.(3)Section 88 applies in relation to a person
who holds a currentpositiveexemptionnoticewhoischargedwithanewdisqualifyingoffenceevenifthecharge,ortheactsoromissionsconstitutingtheallegedoffence,happenedbeforethe
commencement.(4)Without limiting this division, in
applying the amended Acton and from the commencement, it is
immaterial—(a)whenanewdisqualifyingoffenceornewseriousoffence was committed; or(b)whenapersonwasconvictedofanewdisqualifyingoffence or new
serious offence; or(c)when a charge for a new disqualifying
offence, or theactsoromissionsconstitutingtheallegedoffence,happened.Example—An
offence may have been committed, and the person convicted of
theoffence, before the commencement.Page
282Current as at [Not applicable]
Notauthorised—indicativeonlyDivision 8Disability
Services Act 2006Part 9 Repeal and transitional
provisions[s 331]Transitional
provision for DisabilityServices (Restrictive Practices)
andOther Legislation Amendment Act2014331Notice about use
of restrictive practices(1)This section
applies if on the commencement of this section arelevantserviceproviderisusingrestrictivepracticesinrelation to an adult with an
intellectual or cognitive disability.(2)Section 191 applies to the relevant service
provider as if therelevantserviceproviderwasconsideringusingrestrictivepractices in
relation to the adult on the commencement of thissection.Division 9Transitional provisions forCommunities Legislation (FundingRed
Tape Reduction) AmendmentAct 2014332Definitions for div 9In this
division—amending Actmeans theCommunities Legislation (FundingRed
Tape Reduction) Amendment Act 2014.authorisedofficermeansapersonappointedimmediatelybeforethecommencementasanauthorisedofficerunderprevious section
125.commencementmeans the
commencement of the provision inwhich the term
is used.funding agreementsee previous
section 56(1).interimmanagermeansapersonappointedasinterimmanager under
previous section 169.Current as at [Not applicable]Page
283
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 333]previous, for a
provision of this Act, means the provision as inforce immediately before the commencement of
the amendingAct, section 73.unamended
Actmean this Act as in force from time to
timebefore the commencement.333Funding agreements continue in force(1)This section applies if a funding
agreement between the chiefexecutive and a
funded non-government service provider wasin 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 tofunding agreements.(3)However, if the funding agreement
contains a term mentionedinprevioussection 58(1)(j),onandfromthecommencement—(a)the
term is of no effect; and(b)the agreement is
taken to provide that—(i)the funded
non-government service provider mustcomplywiththeHumanServicesQualityStandards;
and(ii)recurrentfundingtothefundednon-governmentserviceproviderwillstopiftheserviceproviderdoes
not comply with the Human Services QualityStandards.(4)Also, on and from the commencement, a term
of the fundingagreementrequiringthefundednon-governmentserviceprovidertoobtainormaintainapprovalasanapprovednon-government service provider is of no
effect.(5)In this section—approvednon-governmentserviceproviderseeformersection
16.Page 284Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 334]HumanServicesQualityStandardsmeansthestandardsstatedinthedocumentcalled‘HumanServicesQualityStandards’publishedonthedepartment’swebsiteontheinternet.334Obligation to enter agreement about
assistancecontinues(1)Thissectionappliesif,immediatelybeforethecommencement,anon-governmentserviceproviderwhoreceivedfundingaftergivingthewrittenagreementmentioned in previous section 56(4)(a) has
not complied withprevious section 56(4)(b).(2)Thechiefexecutivemuststopthefundingifthenon-government service provider does
not enter into a fundingagreementaboutthefundingwithinthetimestatedinthewritten
agreement given under previous section 56(4)(a).335Contraventions of funding agreement or
Act beforecommencement(1)This
section applies if, before the commencement—(a)a
funding agreement between the chief executive and afundednon-governmentserviceproviderwascontravened; or(b)a
provision of the unamended Act related to the fundingagreement mentioned in paragraph (a) was
contravened.(2)The unamended Act continues to apply
for the contraventionas if the amending Act had not been
enacted.(3)Without limiting subsection
(2)—(a)anauthorisedofficermayexercise,orcontinuetoexercise, powers under the unamended Act;
and(b)a magistrate may hear and decide, or
continue to hearanddecide,anapplicationforawarrantforaplaceunder previous
part 11, division 2, subdivision 2; andCurrent as at
[Not applicable]Page 285
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 336](c)thechiefexecutivemaygivethefundednon-governmentserviceprovideracompliancenoticeunder previous section 161; and(d)iftheserviceprovidercontravenesacompliancenotice—(i)theserviceprovidermaybeprosecutedforanoffence against previous section
161(6); or(ii)the chief
executive may suspend or cancel fundingtotheserviceproviderunderprevioussection 161(8); and(e)aninterimmanagermaybeappointedfortheserviceprovider under previous part 12.(4)In this section—authorisedofficermeansanauthorisedofficerundertheCommunity Services Act 2007.336Interim
managers(1)This section applies if—(a)immediatelybeforethecommencement,apersonwasappointedasaninterimmanagerforafundednon-government service provider; or(b)aninterimmanagerisappointedforafundednon-government
service provider under section 335.(2)The
interim manager may exercise, or continue to exercise, apowerundertheunamendedActinrelationtotheserviceprovider.(3)Forthepurposesofsubsection (2),theunamendedActcontinues to apply to the interim manager’s
appointment as ifthe amending Act had not been
enacted.Page 286Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 337]337Confidentiality obligation continues
to apply toauthorised officers and interim
managers(1)This section applies to a person who
is or has been either ofthe 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 theamending Act had
not been enacted.338Reviews(1)This
section applies to a decision of the chief executive underthisActif,beforethecommencement,thedecisionwasareviewable decision.(2)The unamended Act continues to apply
to the decision despitethe enactment of the amending
Act.(3)Without limiting subsection
(2)—(a)an interested person for the review
decision made by thechief executive under previous section
211 may apply toQCATforareviewofthedecisionunderprevioussection 212;
and(b)QCATmayhearanddecide,orcontinuetohearanddecide,anapplicationforareviewofthereviewdecision under
previous section 212.(4)In this
section—reviewabledecisionmeansadecisionstatedinpreviousschedule
2.Current as at [Not applicable]Page
287
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 339]Division 10Transitional
provisions for DisabilityServices and Other LegislationAmendment Act 2016339Warrant may be executed(1)This
section applies if, before 1 July 2019, a warrant is issuedunder section 200M and in force but not
executed before thatdate.(2)The
warrant continues in force according to its terms and maybe
executed after 30 June 2019.(3)Part
6A continues to have effect for all matters relating to theexecution and enforcement of the
warrant.340Offences 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)aprovisionofpart6Aasitcontinuedtohaveeffectunder section 339 after 30 June 2019.(2)Thepersonmaybeprosecutedandpunishedforthecontraventiondespitetheexpiryofpart6Aand,forthepurpose of the prosecution and
punishment, part 6A continuesto have effect
despite its expiry.Division 11Transitional
provisions for DisabilityServices and Other Legislation(Worker Screening) Amendment Act2018341Definitions for divisionIn this
division—Page 288Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Part
9 Repeal and transitional provisions[s 342]amendingActmeanstheDisabilityServicesandOtherLegislation
(Worker Screening) Amendment Act 2018.unamended
Actmeans this Act as in force immediately
beforethe commencement.342Prescribed notices or exemption notices
issued to soletraders before commencement(1)Thissectionappliesif,beforethecommencement,thechiefexecutive issued
a prescribed notice or an exemption notice toa sole
trader.(2)The prescribed notice or exemption
notice is taken to be, andalwaystohavebeen,asvalidasifpart5,asinforceimmediatelyafterthecommencement,hadbeeninforceonthe
day the notice was given.343Certification by
prescribed persons beforecommencement(1)This
section applies if, before the commencement—(a)a
sole trader applied under the unamended Act, section52
or 59 for a prescribed notice or an exemption notice;and(b)a prescribed
person certified that the prescribed personhadsighteddocuments,relatingtoproofofthesoletrader’s
identity, prescribed by regulation.(2)Despite the unamended Act—(a)thechiefexecutivemay,whetherbeforeofafterthecommencement,acceptthecertificationbytheprescribedpersoninsteadofbytheNDISnon-governmentserviceproviderasproofofthesoletrader’s
identity; and(b)theapplication,orprescribednoticeorexemptionnoticeissuedbythechiefexecutiveasaresultoftheapplication(whetherissuedbeforeoraftertheCurrent as at [Not applicable]Page
289
Notauthorised—indicativeonlyDisability Services Act 2006Part 9
Repeal and transitional provisions[s 344]commencement),isnotaffectedonlybecauseofachange to the entity certifying the
documents.344Delayed application of particular
provisions(1)This section applies to a person who
is a sole trader if, beforethe
commencement—(a)the person was providing disability
services as an NDISnon-government service provider at a service
outlet ofthe service provider; and(b)the person had applied for—(i)aprescribednoticeundertheunamendedAct,section 52; or(ii)aprescribednoticeundertheWorkingwithChildren Act, section 199; and(c)the application had not been
decided.(2)Sections 67A and 67B do not apply to
the person until the daythat is 4 months after the
commencement.Page 290Current as at
[Not applicable]
Notauthorised—indicativeonlySchedule 2Disability
Services Act 2006Schedule 2Current serious
offencessection 791Classification of Computer Games and Images
Act 1995ProvisionRelevant
headingof ActQualification
relating tothe provision of the Act23Demonstration of anobjectionable
computergame before a minor26(3)Possession of objectionablecomputer game27(3) andMaking objectionable(4)computer game28Obtaining minor forobjectionable
computergame2Classification of Films Act 1991ProvisionRelevant
headingof ActQualification
relating tothe provision of the Act41(3)Possession of objectionablefilm42(3) andMaking objectionable film(4)43Procurement of
minor forobjectionable film3Classification of Publications Act
1991Current as at [Not applicable]Page
291
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 2ProvisionRelevant headingof ActQualificationrelatingtothe provision of the Act12Sale etc. of prohibitedonly
if an offender waspublicationor could have
been liableas mentioned insection 12,
penalty,paragraph (c)13Possession of prohibitedonly if an
offender waspublicationor could have
been liableas mentioned insection 13,
penalty,paragraph (c)14Possession of child abusepublication15Exhibition or display ofprohibited
publication16Leaving prohibitedonly if an
offender waspublication in or onor could have
been liablepublic placeas mentioned
insection 16, penalty,paragraph
(c)17(1)Producing
prohibitedpublicationonly if an
offender wasor could have been liableas
mentioned insection 17(1), penalty,paragraph
(c)17(2)Producing
prohibitedpublicationonly if an
offender wasor could have been liableas
mentioned insection 17(2), penalty,paragraph
(c)17(3) andProducing
prohibited(4)publicationPage 292Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 2ProvisionRelevant headingof ActQualificationrelatingtothe provision of the Act18Procurement of minor forRC
publication20Leaving prohibitedonly if an
offender waspublication in or onor could have
been liableprivate premisesas mentioned
insection 20, penalty,paragraph
(c)4Criminal CodeProvision
ofRelevant headingActQualificationrelatingtothe provision of the Act210Indecent treatment ofchildren under 16211Bestiality213Owner etc. permittingabuse of
children onpremises215Carnal knowledge with orof children
under 16216Abuse of persons with animpairment of the mind217Procuring young personetc. for carnal
knowledge218Procuring sexual acts bycoercion etc.218AUsing internet etc. toprocure children
under 16218BGrooming
children under16Current as at [Not applicable]Page
293
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 2Provision
ofRelevant headingActQualificationrelatingtothe provision of the Act219Taking child for immoralpurposes221Conspiracy to defile222Incest228Obscene publications andonly if an
offender wasexhibitionsor could have
been liableas mentioned insection 228(2)
or (3)228AInvolving child
in makingchild exploitationmaterial228BMaking child
exploitationmaterial228CDistributing childexploitation
material228DPossessing
childexploitation material228DAAdministering childexploitation
materialwebsite228DBEncouraging use of childexploitation
materialwebsite228DCDistributing informationabout avoiding
detection229BMaintaining a
sexualrelationship with a childPage
294Current as at [Not applicable]
Disability Services Act 2006Schedule 2Notauthorised—indicativeonlyProvision ofRelevant
headingActQualificationrelatingtothe provision of the Act229GProcuring
engagement inonly if an offender wasprostitutionor could have
been liableas mentioned insection
229G(2)229HKnowingly
participatingin provision ofprostitutiononly if an
offender wasor could have been liableas
mentioned insection 229H(2)229IPersons found in placesonly if an
offender wasreasonably suspected ofor could have
been liablebeing used foras mentioned
inprostitution etc.section
229I(2)229LPermitting young
personetc. to be at place used forprostitution300Unlawful homicideonly if the
unlawfulkilling is murder undersection
302306Attempt to murder309Conspiring to murder313Killing unborn child315Disabling in order tocommit
indictableoffence316Stupefying in order tocommit
indictableoffence317Acts
intended to causegrievous bodily harm andother malicious
acts320ATortureCurrent as at [Not applicable]Page
295
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 2Provision
ofRelevant headingActQualificationrelatingtothe provision of the Act322Administering poisononly
if an offender waswith intent to harmor could have
been liablefor a penalty asmentioned
insection 322, penalty,paragraph
(a)323AFemale genital
mutilation323BRemoval of child
fromState for female genitalmutilation324Failure to supplynecessaries326Endangering life ofchildren by
exposure349Rape350Attempt to commit rape351Assault with intent tocommit
rape352Sexual assaults354Kidnapping354AKidnapping for ransom363Child-stealing363AAbduction of child under16364Cruelty to children under16Page 296Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 2Provision
ofRelevant headingActQualificationrelatingtothe provision of the Act409Definition ofrobberyonly
if an offender wasor could have been liableas
mentioned insection 411(2)419Burglaryonly if an
offender wasor could have been liableas
mentioned insection 419(3)(b)(i) or(ii)427Unlawful entry of vehicleonly
if an offender wasfor committing indictableor
could have been liableoffenceas mentioned
insection 427(2)(b)(i) or(ii)5Drugs Misuse Act 1986Provision ofRelevant
headingActQualificationrelatingtothe provision of the Act5Trafficking in dangerousdrugs6Supplying dangerousonly if the
offence is onedrugsof aggravated
supply asmentioned insection
6(2)8Producing dangerousonly
if an offender wasdrugsor could have
been liablefor a penalty asmentioned in
section 8,penalty, paragraph (a) or(b)9DTrafficking in
relevantsubstances or thingsCurrent as at
[Not applicable]Page 297
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 2Provision
ofRelevant headingActQualificationrelatingtothe provision of the Act6Criminal Code (Cwlth)Provision ofRelevant
headingActQualificationrelatingtothe provision of the Act270.6Sexual
servitudeoffencesonly if an
offender wasor could have been liableas
mentioned insection 270.8270.7Deceptive recruiting forsexual
servicesonly if an offender wasor could have
been liableas mentioned insection
270.8272.8Sexual
intercourse withchild outside Australia272.9Sexual activity (otherthan sexual
intercourse)with child outsideAustralia272.10Aggravated
offence—child with mentalimpairment or
undercare, supervision orauthority of
defendant272.11Persistent
sexual abuseof child outside Australia272.12Sexual
intercourse withyoung person outsideAustralia—defendant inposition of
trust orauthorityPage 298Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 2Provision
ofRelevant headingActQualificationrelatingtothe provision of the Act272.13Sexual activity
(otherthan sexual intercourse)with young
personoutside Australia—defendant in
position oftrust or authority272.14Procuring child toengage in sexual
activityoutside Australia272.15“Grooming” child toengage in sexual
activityoutside Australia272.18Benefiting from offenceagainst this
Division272.19Encouraging
offenceagainst this Division272.20Preparing for or planningoffence against thisDivision273.5Possessing,
controlling,producing, distributingor obtaining
childpornography materialoutside
Australia273.6Possessing,
controlling,producing, distributingor obtaining
child abusematerial outsideAustraliaCurrent as at [Not applicable]Page
299
Disability Services Act 2006Schedule 2Notauthorised—indicativeonlyProvision ofRelevant
headingActQualificationrelatingtothe provision of the Act273.7Aggravated
offence—offence involvingconduct on 3 or
moreoccasions and 2 or morepeople471.16Using a postal
or similarservice for childpornography
material471.17Possessing,
controlling,producing, supplying orobtaining
childpornography material foruse through a
postal orsimilar service471.19Using a postal or similarservice for child abusematerial471.20Possessing,
controlling,producing, supplying orobtaining child
abusematerial for use througha postal or
similarservice471.22Aggravated offence—offence
involvingconduct on 3 or moreoccasions and 2
or morepeople471.24Using a postal or similarservice to procurepersons under
16471.25Using a postal
or similarservice to “groom”persons under
16Page 300Current as at
[Not applicable]
Disability Services Act 2006Schedule 2Notauthorised—indicativeonlyProvision ofRelevant
headingActQualificationrelatingtothe provision of the Act471.26Using a postal
or similarservice to send indecentmaterial to
person under16474.19Using a carriage
servicefor child pornographymaterial474.20Possessing,
controlling,producing, supplying orobtaining
childpornography material foruse through a
carriageservice474.22Using a carriage servicefor child abuse
material474.23Possessing,
controlling,producing, supplying orobtaining child
abusematerial for use througha carriage
service474.24AAggravated
offence—offence involvingconduct on 3 or
moreoccasions and 2 or morepeople474.25AUsing a carriage
servicefor sexual activity withperson under
16years ofage474.25BAggravated
offence—child with mentalimpairment or
undercare, supervision orauthority of
defendantCurrent as at [Not applicable]Page
301
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 2Provision
ofRelevant headingActQualificationrelatingtothe provision of the Act474.26Using a carriage
serviceto procure persons under16 years of
age474.27Using a carriage
serviceto “groom” personsunder 16 years
of age474.27AUsing a carriage
serviceto transmit indecentcommunication to
personunder 16 years of age7Customs Act 1901(Cwlth)Provision ofRelevant
headingActQualificationrelatingtothe provision of the Act233BABSpecial offence
relatingif the offence involvedto tier 2
goodschild pornography orchild abuse
materialPage 302Current as at
[Not applicable]
Notauthorised—indicativeonlySchedule 3Disability
Services Act 2006Schedule 3Repealed or
expired seriousoffencessection 791Criminal CodeProvisionRelevant headingof Act208Unlawful sodomy212Defilement of Girlsunder
Twelve214Attempt to Abuse Girlsunder Ten218AUsing internet etc. toprocure children
under16Qualification relating to theprovision of the Actas the provision
was inforce from time to timebefore its
repeal by theHealth and OtherLegislation
Amendment Act2016as the provision
was inforce from time to timebefore its
repeal by theCriminal Code, EvidenceAct and Other
ActsAmendment Act 1989as the provision
was inforce from time to timebefore its
repeal by theCriminal Code, EvidenceAct and Other
ActsAmendment Act 1989as the provision
was inforce from time to timebefore its
repeal by theCriminal Law (ChildExploitation
andDangerous Drugs)Amendment Act
2013Current as at [Not applicable]Page
303
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 3ProvisionRelevant headingof ActQualification relating to theprovision of the Act220Unlawful Detention withas the provision
was inIntent to Defile or in aforce from time
to timeBrothelbefore its
repeal by theCriminal Code, EvidenceAct and Other
ActsAmendment Act 1989223Incest by adult femaleas the provision
was inforce from time to timebefore its
repeal by theCriminal Law AmendmentAct 1997325Endangering life oras
the provision was inhealth of apprentices orforce from time to timeservantsbefore its repeal by theTraining and
EmploymentAct 2000344Aggravated assaultsas the provision
was inforce from 20 December1946 to 30 June
1997 if thecircumstance of aggravationwas
that the unlawfulassault was an offence of asexual nature as defined intheCriminal LawAmendment Act
1945,section 2AaaCriminal Law Amendment Act 1945,
section 2A was inserted into theCriminal Law
Amendment Act 1945by theCriminal Law
AmendmentAct 1946.2Crimes Act 1914(Cwlth)Page
304Current as at [Not applicable]
Disability Services Act 2006Schedule 3Notauthorised—indicativeonlyProvisionRelevant
headingof ActQualification
relating to theprovision of the Act50BASexual intercourse withchild under
16as the provision was inforce from time
to timebefore its repeal by theCrimes
LegislationAmendment (SexualOffences Against
Children)Act 2010(Cwlth)50BBInducing child
under 16to engage in sexualintercourseas the provision
was inforce from time to timebefore its
repeal by theCrimes LegislationAmendment
(SexualOffences Against Children)Act
2010(Cwlth)50BCSexual conduct involvingas the provision
was inchild under 16force from time
to timebefore its repeal by theCrimes
LegislationAmendment (SexualOffences Against
Children)Act 2010(Cwlth)50BDInducing child
under 16to be involved in sexualconductas
the provision was inforce from time to timebefore its repeal by theCrimes
LegislationAmendment (SexualOffences Against
Children)Act 2010(Cwlth)50DABenefiting from
offenceagainst this Partas the provision
was inforce from time to timebefore its
repeal by theCrimes LegislationAmendment
(SexualOffences Against Children)Act
2010(Cwlth)Current as at
[Not applicable]Page 305
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 3ProvisionRelevant headingof Act50DBEncouraging
offenceagainst this PartQualification
relating to theprovision of the Actas the provision
was inforce from time to timebefore its
repeal by theCrimes LegislationAmendment
(SexualOffences Against Children)Act
2010(Cwlth)Page 306Current as at [Not applicable]
Notauthorised—indicativeonlySchedule 4Disability
Services Act 2006Schedule 4Current
disqualifying offencessection 811Classification of Computer Games and Images
Act 1995ProvisionRelevant
headingof Act23Demonstration of anobjectionable
computergame before a minor26(3)Possession ofobjectionable
computergame27(3) andMaking objectionable(4)computer game28Obtaining minor forobjectionable
computergameQualificationrelatingtothe provision of the Act2Classification of Films Act
1991ProvisionRelevant
headingof ActQualificationrelatingtothe provision of the Act41(3)Possession
ofobjectionable film42(3) andMaking objectionable film(4)43Procurement of
minor forobjectionable film3Classification of Publications Act
1991Current as at [Not applicable]Page
307
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 4ProvisionRelevant headingof ActQualification relating to theprovision of the Act12Sale
etc. of prohibitedonly if an offender was orpublicationcould have been
liable asmentioned in section 12,penalty,
paragraph (c)13Possession of prohibitedonly
if an offender was orpublicationcould have been
liable asmentioned in section 13,penalty,
paragraph (c)14Possession of childabuse publication15Exhibition or display ofonly if an
offender was orprohibited publicationcould have been
liable asmentioned in section 15,penalty,
paragraph (c)16Leaving prohibitedonly if an
offender was orpublication in or oncould have been
liable aspublic placementioned in
section 16,penalty, paragraph (c)17(1)Producing prohibitedpublicationonly if an
offender was orcould have been liable asmentioned in section 17(1),penalty, paragraph (c)17(2)Producing prohibitedpublicationonly if an
offender was orcould have been liable asmentioned in section 17(2),penalty, paragraph (c)17(3) andProducing prohibited(4)publication18Procurement of minorfor RC
publicationPage 308Current as at
[Not applicable]
ProvisionRelevant
headingof Act20Leaving prohibitedpublication in
or onprivate premisesDisability
Services Act 2006Schedule 4Qualification
relating to theprovision of the Actonly if an
offender was orcould have been liable asmentioned in section 20,penalty,
paragraph (c)Notauthorised—indicativeonly4Criminal CodeProvisionRelevant headingof ActQualification relating to theprovision of the Act210Indecent treatment ofchildren under
16213Owner etc. permittingabuse of children onpremises215Carnal knowledge with orof
children under 16216Abuse of persons with animpairment of the mind217Procuring young personetc. for carnal
knowledge218Procuring sexual acts byif
the offence wascoercion etc.committed
against a child218AUsing internet
etc. toprocure children under 16218BGrooming
children under16219Taking child for
immoralpurposes221Conspiracy to defileif the offence
wascommitted against a childCurrent as at [Not applicable]Page
309
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 4ProvisionRelevant headingof ActQualification relating to theprovision of the Act222Incestif the offence
wascommitted against a child228Obscene publications andonly
if an offender was orexhibitionscould have been
liable asmentioned insection 228(2)
or (3)228AInvolving child
in makingchild exploitationmaterial228BMaking child
exploitationmaterial228CDistributing childexploitation
material228DPossessing
childexploitation material228DAAdministering childexploitation
materialwebsite228DBEncouraging use of childexploitation
materialwebsite228DCDistributing informationabout avoiding
detection229BMaintaining a
sexualrelationship with a child229GProcuring
engagement inonly if an offender was orprostitutioncould have been
liable asmentioned insection
229G(2)Page 310Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 4ProvisionRelevant headingof ActQualification relating to theprovision of the Act229HKnowingly participatingin provision
ofprostitutiononly if an
offender was orcould have been liable asmentioned insection
229H(2)229IPersons found in
placesonly if an offender was orreasonably suspected ofcould have been
liable asbeing used formentioned
inprostitution etc.section
229I(2)229LPermitting young
personetc. to be at place used forprostitution300Unlawful homicideonly if the
unlawful killingis murder undersection 302 and
wascommitted against a child349Rapeif the offence
wascommitted against a child350Attempt to commit rapeif
the offence wascommitted against a child351Assault with intent toif
the offence wascommit rapecommitted
against a child352Sexual assaultsif the offence
wascommitted against a child5Criminal Code (Cwlth)ProvisionRelevant
headingof ActQualification
relating to theprovision of the Act270.6Sexual servitude offencesonly
if an offender was orcould have been liable asmentioned in section 270.8Current as at [Not applicable]Page
311
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 4ProvisionRelevant headingof ActQualification relating to theprovision of the Act270.7Deceptive recruiting foronly if an
offender was orsexual servicescould have been
liable asmentioned in section 270.8272.8Sexual
intercourse withchild outside Australia272.9Sexual activity (otherthan sexual
intercourse)with child outsideAustralia272.10Aggravated
offence—child with mentalimpairment or
under care,supervision or authorityof
defendant272.11Persistent
sexual abuse ofchild outside Australia272.12Sexual intercourse withyoung person
outsideAustralia—defendant in
position oftrust or authority272.13Sexual activity (otherthan sexual
intercourse)with young personoutside
Australia—defendant in position oftrust or
authority272.14Procuring child
to engagein sexual activity outsideAustraliaPage 312Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 4ProvisionRelevant headingof ActQualification relating to theprovision of the Act272.15“Grooming” child toengage in sexual
activityoutside Australia272.18Benefiting from offenceagainst this
Division272.19Encouraging
offenceagainst this Division272.20Preparing for or planningoffence against thisDivision273.5Possessing,
controlling,producing, distributing orobtaining childpornography
materialoutside Australia273.6Possessing, controlling,producing,
distributing orobtaining child abusematerial outside
Australia273.7Aggravated
offence—offence involving conducton 3
or more occasionsand 2 or more people471.16Using a postal or similarservice for childpornography
material471.17Possessing,
controlling,producing, supplying orobtaining
childpornography material foruse through a
postal orsimilar serviceCurrent as at
[Not applicable]Page 313
Disability Services Act 2006Schedule 4Notauthorised—indicativeonlyProvisionRelevant
headingof ActQualification
relating to theprovision of the Act471.19Using a postal or similarservice for child abusematerial471.20Possessing,
controlling,producing, supplying orobtaining child
abusematerial for use through apostal or similar service471.22Aggravated
offence—offence involving conducton 3
or more occasionsand 2 or more people471.24Using a postal or similarservice to procure personsunder 16471.25Using a postal or similarservice to “groom”persons under
16471.26Using a postal
or similarservice to send indecentmaterial to
person under16474.19Using a carriage
servicefor child pornographymaterial474.20Possessing,
controlling,producing, supplying orobtaining
childpornography material foruse through a
carriageservice474.22Using a carriage servicefor child abuse
materialPage 314Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 4ProvisionRelevant headingof ActQualification relating to theprovision of the Act474.23Possessing, controlling,producing,
supplying orobtaining child abusematerial for use
through acarriage service474.24AAggravated offence—offence
involving conducton 3 or more occasionsand 2 or more
people474.25AUsing a carriage
servicefor sexual activity withperson under 16
years ofage474.25BAggravated
offence—child with mentalimpairment or
under care,supervision or authorityof
defendant474.26Using a carriage
serviceto procure persons under16 years of
age474.27Using a carriage
serviceto “groom” persons under16 years of
age474.27AUsing a carriage
serviceto transmit indecentcommunication to
personunder 16 years of age6Customs Act 1991(Cwlth)Current as at [Not applicable]Page
315
Disability Services Act 2006Schedule 4ProvisionRelevant headingof ActQualification relating to theprovision of the Act233BABSpecial offence relating toif
the offence involved atier 2 goodschild
pornography or childabuse materialNotauthorised—indicativeonlyPage 316Current as at
[Not applicable]
Notauthorised—indicativeonlySchedule 5Disability
Services Act 2006Schedule 5Repealed or
expireddisqualifying offencessection 811Criminal CodeProvisionRelevant headingof ActQualification relating to theprovision of the Act208Unlawful sodomyas the provision
was inforce from time to timebefore its
repeal by theHealth and OtherLegislation
Amendment Act2016for an
offencecommitted before 1 July1997, only if
committedagainst a child or a personwith
an impairment of themind212Defilement of Girls underas
the provision was inTwelveforce from time
to timebefore its repeal by theCriminal Code,
EvidenceAct and Other ActsAmendment Act
1989214Attempt to Abuse Girlsas
the provision was inunder Tenforce from time
to timebefore its repeal by theCriminal Code,
EvidenceAct and Other ActsAmendment Act
1989Current as at [Not applicable]Page
317
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 5ProvisionRelevant headingof ActQualification relating to theprovision of the Act218AUsing internet etc. toas the provision
was inprocure children under 16force from time to timebefore its
repeal by theCriminal Law (ChildExploitation
andDangerous Drugs)Amendment Act
2013220Unlawful Detention withas
the provision was inIntent to Defile or in aforce from time to timeBrothelbefore its repeal by theCriminal Code,
EvidenceAct and Other ActsAmendment Act
1989onlyif, at the time
of theoffence, the person inrelation to whom
theoffence was committed wasa
child223Incest by adult femaleas
the provision was inforce from time to timebefore its repeal by theCriminal Law
AmendmentAct 1997only if, at the
timeof the offence, the person inrelation to whom theoffence was
committed wasa childPage 318Current as at [Not applicable]
Notauthorised—indicativeonlyProvisionRelevant
headingof Act344Aggravated assaultsDisability
Services Act 2006Schedule 5Qualification
relating to theprovision of the Actas the provision
was inforce from 20 December1946 to 30 June
1997 if—(a)the circumstance ofaggravation was thatthe unlawful
assaultwas an offence of asexual nature
asdefined in theCriminal
LawAmendment Act 1945,section 2A; and(b)at
the time of theoffence, the person inrelation to whom
theoffence wascommitted was a
child2Crimes Act 1914(Cwlth)ProvisionRelevant
headingof Act50BASexual intercourse withchild under
1650BBInducing child
under 16to engage in sexualintercourseQualification
relating to theprovision of the Actas the provision
was inforce from time to timebefore its
repeal by theCrimes LegislationAmendment
(SexualOffences Against Children)Act
2010(Cwlth)as the provision
was inforce from time to timebefore its
repeal by theCrimes LegislationAmendment
(SexualOffences Against Children)Act
2010(Cwlth)Current as at
[Not applicable]Page 319
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 5ProvisionRelevant headingof ActQualification relating to theprovision of the Act50BCSexual conduct involvingas the provision
was inchild under 16force from time
to timebefore its repeal by theCrimes
LegislationAmendment (SexualOffences Against
Children)Act 2010(Cwlth)50BDInducing child
under 16to be involved in sexualconductas
the provision was inforce from time to timebefore its repeal by theCrimes
LegislationAmendment (SexualOffences Against
Children)Act 2010(Cwlth)50DABenefiting from
offenceagainst this Partas the provision
was inforce from time to timebefore its
repeal by theCrimes LegislationAmendment
(SexualOffences Against Children)Act
2010(Cwlth)50DBEncouraging offenceagainst this
Partas the provision was inforce from time
to timebefore its repeal by theCrimes
LegislationAmendment (SexualOffences Against
Children)Act 2010(Cwlth)Page
320Current as at [Not applicable]
Notauthorised—indicativeonlySchedule 6Disability
Services Act 2006Schedule 6Offences that
may form basisof investigative informationsection 1091Classification of Computer Games and Images
Act 1995ProvisionRelevant
headingof ActQualification
relating to theprovision of the Act23Demonstration of anobjectionable
computergame before a minor28Obtaining minor forobjectionable
computergame2Classification of Films Act 1991ProvisionRelevant
headingof Act43Procurement of minorfor
objectionable filmQualification relating to theprovision of the Act3Classification of Publications Act
1991ProvisionRelevant
headingof ActQualification
relating to theprovision of the Act18Procurement of minor forRC
publication4Criminal CodeCurrent as at
[Not applicable]Page 321
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 6ProvisionRelevant headingof ActQualification relating to theprovision of the Act210Indecent treatment ofchildren under
16213Owner etc. permittingabuse of children onpremises215Carnal knowledge with orof
children under 16216Abuse of persons with animpairment of the mind217Procuring young personetc. for carnal
knowledge218Procuring sexual acts byif
the offence wascoercion etc.committed
against a childor a person with a disability218BGrooming
children under16219Taking child for
immoralpurposes221Conspiracy to defileif the offence
wascommitted against a childor a
person with a disability222Incestif
the offence wascommitted against a childor a
person with a disability228AInvolving child
in makingchild exploitationmaterial229BMaintaining a
sexualrelationship with a childPage
322Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 6ProvisionRelevant headingof ActQualification relating to theprovision of the Act229GProcuring engagement inonly if an
offender was orprostitutioncould have been
liable asmentioned insection
229G(2)229HKnowingly
participatingin provision ofprostitutiononly if an
offender was orcould have been liable asmentioned insection
229H(2)229LPermitting young
personetc. to be at place used forprostitution300Unlawful homicideonly if the
unlawful killingis murder undersection 302 and
wascommitted against a childor a
person with a disability349Rapeif
the offence wascommitted against a childor
person with a disability350Attempt to
commit rapeif the offence wascommitted
against a childor a person with a disability351Assault with intent toif
the offence wascommit rapecommitted
against a childor a person with a disability352Sexual assaultsif the offence
wascommitted against a childor a
person with a disability5Criminal Code
(Cwlth)Current as at [Not applicable]Page
323
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 6ProvisionRelevant headingof ActQualification relating to theprovision of the Act270.6Sexual servitudeoffencesonly
if an offender was orcould have been liable asmentioned in section 270.8or
if the offence iscommitted against a personwith
a disability270.7Deceptive
recruiting forsexual servicesonly if an
offender was orcould have been liable asmentioned in section 270.8or
if the offence iscommitted against a personwith
a disability272.8Sexual
intercourse withchild outside Australia272.9Sexual activity (otherthan sexual
intercourse)with child outsideAustralia272.10Aggravated
offence—child with mentalimpairment or
undercare, supervision orauthority of
defendant272.11Persistent
sexual abuseof child outside Australia272.12Sexual
intercourse withyoung person outsideAustralia—defendant in
position oftrust or authorityPage 324Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 6ProvisionRelevant headingof ActQualification relating to theprovision of the Act272.13Sexual activity (otherthan sexual
intercourse)with young personoutside
Australia—defendant in position oftrust or
authority272.14Procuring child
toengage in sexual activityoutside Australia272.15“Grooming” child toengage in sexual
activityoutside AustraliaCurrent as at
[Not applicable]Page 325
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 7Schedule 7Repealed or expired offencesthat
may form basis ofinvestigative informationsection 109Crimes Act
1914(Cwlth)ProvisionRelevantof ActheadingQualificationrelatingtotheprovisionofthe Act50BASexualintercourse
withchild under 16as the provision
was in force from time totime before its repeal by theCrimesLegislation
Amendment (Sexual OffencesAgainst Children) Act 2010(Cwlth)50BBInducing childunder 16
toengage in sexualintercourseas the provision
was in force from time totime before its repeal by theCrimesLegislation
Amendment (Sexual OffencesAgainst Children) Act 2010(Cwlth)50BCSexual conductinvolving
childunder 16as the provision
was in force from time totime before its repeal by theCrimesLegislation
Amendment (Sexual OffencesAgainst Children) Act 2010(Cwlth)50BDInducing childas the provision
was in force from time tounder 16 to betime before its
repeal by theCrimesinvolved in
sexualLegislation Amendment (Sexual
OffencesconductAgainst
Children) Act 2010(Cwlth)Page 326Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 7Criminal
CodeProvisionRelevantof
CodeheadingQualificationrelatingtotheprovisionofthe Act208Unlawful sodomyas the provision
was in force from time totime before its repeal by theHealth andOther
Legislation Amendment Act 2016for an offence
committed before 1 July1997, only if committed against a
child ora person with an impairment of the
mindCurrent as at [Not applicable]Page
327
Disability Services Act 2006Schedule 8Schedule 8DictionaryNotauthorised—indicativeonlysection 9Page 328administratormeansanadministratorappointedundertheGuardianship and Administration Act
2000.adult with an intellectual or
cognitive disability, for part 6and part 8,
division 2, see section 144.adultwithaskillsdeficit,forpart8,division2,seesection 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 formmeans a form
approved by the chief executiveunder section
237.assessment, for part 6,
see section 144.authorisedguardian,forpart9,division3,seesection 249(1).authorisedofficermeansanauthorisedofficerappointedunder theCommunity Services Act, section
25.authorised psychiatrist, for part 6,
see section 144.carermeans a person
of any age, who, without being paid,cares for
another person who needs ongoing support becauseofadisability,butdoesnotincludeavolunteerforanorganisation.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]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 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 agencymeans any of the
following—(a)the ombudsman under theOmbudsman Act 2001;(b)the Crime and Corruption
Commission;(c)theAnti-DiscriminationCommissionerundertheAnti-Discrimination Act 1991;(d)thehealthombudsmanundertheHealthOmbudsmanAct
2013;(e)the public
guardian.compliance period, for part 9,
division 3, see section 249(1).confidentialinformationincludesinformationaboutaperson’s affairs but does not
include—(a)informationalreadypubliclydisclosedunlessfurtherdisclosure of the information is prohibited
by law; or(b)statistical or other information that
could not reasonablybe expected to result in the
identification of the personto whom the
information relates.consumer, of a funded
non-government service provider or anNDIS
non-government service provider, means a person withadisabilitywhoisprovidedwithdisabilityservicesbytheservice
provider.contain, for part 6,
see section 144.containmentorseclusionapproval,forpart6,seesection
144.Current as at [Not applicable]Page
329
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 8convictionmeans a finding
of guilt or the acceptance of a pleaof guilty by a
court, whether or not a conviction is recorded.criminal
history, of a person, means—(a)everyconvictionofthepersonforanoffence,inQueenslandorelsewhere,andwhetherbeforeorafterthe commencement
of this Act; and(b)every charge made against the person
for an offence, inQueenslandorelsewhere,andwhetherbeforeorafterthe commencement
of this Act.current—(a)foraprescribednotice—meanscurrentundersection 58;
or(b)foranexemptionnotice—meanscurrentundersection
64.decision notice, for part 6,
see section 144.directorofforensicdisabilitymeansthedirectorundertheForensic Disability Act 2011.disabilitysee section
11.disability servicessee section
12.disqualification ordermeans—(a)an order under section 137; or(b)an offender prohibition
disqualification order.disqualified personsee
section 97.disqualifying offencesee section
48.electronic documentmeans a document
of a type under theActs Interpretation Act 1954,
schedule 1, definitiondocument,paragraph (c).eligibility
applicationsee section 99(2).eligibility
declarationsee section 99(1).engaged, by
a funded non-government service provider or anNDIS
non-government service provider, see section 46.Page
330Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 8engaged by the
department—(a)generally—see
section 45; or(b)for part 9, division 5, subdivision
2—see section 262.engaged person—(a)foraprescribednoticeapplication—seesection
52(1);or(b)for an exemption
notice application—see section 59(1).exceptionalcasemeansexceptionalcaseasmentionedinsection 54(4) or (11).executiveofficer,ofacorporation,meansanyperson,bywhatevernamecalledandwhetherornotthepersonisadirector of the
corporation, who is concerned or takes part inthe management
of the corporation.exemption noticemeans a notice
issued under section 61.exemptionnoticeapplicationmeansanapplicationforanexemption notice under section
59.final offender prohibition ordermeans a final order under theChildProtection(OffenderReportingandOffenderProhibition
Order) Act 2004.final sexual offender ordermeans a division 3 order undertheDangerous Prisoners (Sexual Offenders)
Act 2003.forensicdisabilityclientmeansaforensicdisabilityclientunder theForensic
Disability Act 2011.funded non-government service
providersee section 16.funded service
providersee section 14.GAA,
for part 6, see section 144.general
power, see section 200S(1).guardianmeansaguardianappointedundertheGuardianship and Administration Act
2000.guardian for a restrictive practice
(general) matter, for part6, see section
144.Current as at [Not applicable]Page
331
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 8guardianforarestrictivepracticematter,forpart6,seesection 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,
seesection 196.healthservicechiefexecutive,forpart6,division7,subdivision 3, see section 196.help
requirementsee section 200T(1).human rights
principlemeans the principle and rights statedin
section 18.imprisonment order—(a)means either of the following
orders—(i)anorderofacourtthatconvictsapersonforanoffence,iftheorderincludesapenaltythatincludesimprisonmentfortheoffence,whetherwholly or partially suspended;(ii)anintensivecorrectionorderunderthePenaltiesandSentencesAct1992oranorderofanotherjurisdictionthatsubstantiallycorrespondstoanintensive correction order; but(b)doesnotincludeanorderofimprisonmentthatisimposed as a consequence of a breach
of a communityservice order or probation order within the
meaning ofthePenalties and Sentences Act
1992.indictableoffenceincludesanindictableoffencedealtwithsummarily,whetherornottheCriminalCode,section 659applies to the
indictable offence.individual funding agreementsee
section 37.informal decision-maker, for part 6,
see section 144.information requirementsee section
200W(3).Page 332Current as at
[Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 8interested
person, for a relevant decision for part 6,
division 6,see section 186.interimsexualoffenderordermeansaninterimdetentionorderorinterimsupervisionorderundertheDangerousPrisoners
(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
engagementmeans—(a)at
least 8 consecutive days; or(b)at
least once a week for each week during a period of 4weeks; or(c)atleastonceafortnightforeachfortnightduringaperiod of 8 weeks; or(d)at
least once a month for each month during a period of6
months.modelpositivebehavioursupportplan,forpart6,seesection 144.multidisciplinary assessment,
for part 6, see section 144.NDIS ActmeansNationalDisabilityInsuranceSchemeAct2013(Cwlth).NDIS
non-government service providersee section
16A.negative exemption noticesee
section 61(2)(b).negative noticesee section
54(2)(b).newdisqualifiedperson,forpart9,division7,seesection 301.newdisqualifyingoffence,forpart9,division7,seesection 301.new relevant
disqualified person, for part 9, division 7, seesection 301.Current as at
[Not applicable]Page 333
Disability Services Act 2006Schedule 8Notauthorised—indicativeonlyPage 334new serious
offence, for part 9, division 7, see section
301.non-government service providersee
section 15.noticemeans a written
notice.occupier, of a place,
includes the following—(a)if there is more
than 1 person who apparently occupiesthe place—any 1
of the persons;(b)any person at the place who is
apparently acting with theauthority of a person who apparently
occupies the place;(c)ifno-oneapparentlyoccupiestheplace—anypersonwho
is an owner of the place.offenderprohibitiondisqualificationordermeansadisqualificationordermadeundertheChildProtection(OffenderReportingandOffenderProhibitionOrder)Act2004, section
13T.offenderprohibitionordermeansanoffenderprohibitionorderundertheChildProtection(OffenderReportingandOffender Prohibition Order) Act 2004.offenderreportingobligationsmeansreportingobligationsunder theChild Protection (Offender Reporting and
OffenderProhibition Order) Act 2004.parent, for part 4,
see section 37.part 5 reviewable decision,
for part 5, division 11, subdivision1, see section
108.participant has the meaning given by the
NDIS Act, section9.participant’s plan means a plan for a
participant that is ineffect under the NDIS Act, section
37.physical restraint, for part 6,
see section 144.placeincludes
premises and vacant land.plan, for a participant, has the
meaning given by the NDISAct, section 9.policecommissionermeansthecommissionerofthepoliceservice.Current as at [Not applicable]
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 8police
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 anoffender
prohibition order; or(iii)the subject of
an application for a disqualificationorder or
offender prohibition disqualification order.police
servicemeans the Queensland Police Service.positive behaviour support plan,
for part 6, see section 144.positive
exemption noticesee section 61(2)(a).positive
noticesee section 54(2)(a).positive notice
cardmeans a document, in the form of a
card,issuedtoapersonwhoistheholderofacurrentpositivenotice at or
about the time that the person is issued with thepositive notice, that includes the following
information—(a)the name of the person who is the
holder of the positivenotice;(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.premisesincludes—(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 noticemeans a notice
issued under section 54(2).Current as at
[Not applicable]Page 335
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 8prescribednoticeapplicationmeansanapplicationforaprescribed notice under section
52.prescribed period, for part 5,
division 11, subdivision 1, seesection
108.prescribed personmeans—(a)a justice; or(b)acommissionerfordeclarationsundertheJusticesofthePeaceandCommissionersforDeclarationsAct1991; or(c)a
lawyer; or(d)a police officer.prescribedpoliceinformation,forpart9,division5,subdivision 2, see section 262.previousserviceprovider,forpart9,division3,seesection 249(1).privatesectorhealthservice,forpart6,division7,subdivision 3, see section 196.public guardianmeans the public
guardian under thePublicGuardian Act
2014.reasonablybelievesmeansbelievesongroundsthatarereasonable in the
circumstances.reasonablysuspectsmeanssuspectsongroundsthatarereasonable in the
circumstances.registeredhealthpractitionermeansapersonregisteredunder the Health
Practitioner Regulation National Law.regulated
engagementmeans—(a)engagement by the department at a service
outlet of thedepartment; or(b)engagementbyafundednon-governmentserviceprovider or an NDIS non-government service
providerat a service outlet of the service
provider.relevant decision, for part 6,
division 6, see section 186.Page 336Current as at [Not applicable]
Disability Services Act 2006Schedule 8Notauthorised—indicativeonlyrelevant decision-maker (respite),
for part 6, see section 144.relevant
disability servicessee section 37.relevant
disqualified personmeans a person who—(a)has
been convicted of a disqualifying offence for whichan
imprisonment order was or is imposed; or(b)is
subject to—(i)offender reporting obligations;
or(ii)an offender
prohibition order; or(iii)adisqualificationorderoroffenderprohibitiondisqualification
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 abouta person, means
the following information—(a)ifthereasonsforthedecisiondonotincludeinvestigativeinformation—thecircumstancesinwhichthe person may
apply to the tribunal for a review of thedecision under
part 5, division 11, subdivision 1;(b)ifthereasonsforthedecisionincludeinvestigativeinformation—(i)the
right of the person to appeal, under section 113,toaMagistratesCourtaboutthepolicecommissioner’sdecisionthattheinformationisinvestigative information; and(ii)the
circumstances in which the person may applyto the tribunal
for a review of the decision undersection
115;(c)theperiodwithinwhichthepersonmustapplytothetribunal for the review or appeal to a
Magistrates Court;(d)how the person may apply for the
review to the tribunalor appeal to a Magistrates
Court;Current as at [Not applicable]Page
337
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 8(e)there is no review or appeal under this Act
in relation tothe decision other than as mentioned in
paragraph (a) or(b).relevant service
provider, for part 6 and part 8, division 2,
seesection 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 practicesee section
144.screening decision, in relation to
a person, means a decisionabout—(a)whether a positive notice or a negative
notice should beissued to the person, including a decision
about—(i)whetheraperson’spositivenoticeshouldbecancelled and substituted with a
negative notice ornegative exemption notice; and(ii)whetheraperson’snegativenoticeshouldbecancelled and, if so, whether a
positive notice orpositive exemption notice should be issued
to theperson; and(iii)whetheraperson’snegativenoticeshouldbecancelled and substituted with a
positive notice orpositive exemption notice; and(iv)whetheraperson’ssuspendedpositivenoticeshould be cancelled and a further prescribed
noticeor an exemption notice issued to the person;
or(b)whetherapositiveexemptionnoticeornegativeexemptionnoticeshouldbeissuedtotheperson,including a
decision about—(i)whetheraperson’spositiveexemptionnoticeshould be cancelled and substituted with a
negativeexemption notice; andPage 338Current as at [Not applicable]
Disability Services Act 2006Schedule 8Notauthorised—indicativeonly(ii)whetheraperson’snegativeexemptionnoticeshould be cancelled and, if so, whether a
positiveexemptionnoticeorpositivenoticeshouldbeissued to the person; and(iii)whetheraperson’snegativeexemptionnoticeshould be cancelled and substituted with a
positiveexemption notice or positive notice;
and(iv)whether a
person’s suspended positive exemptionnotice should be
cancelled and a further exemptionnotice or a
prescribed notice issued to the person;or(c)whether an eligibility declaration
should be issued to theperson.seclude,
for part 6, see section 144.serious
offencesee section 47.service delivery
principlesmeans the principles stated in part2,
division 2.service outletmeans a place at
which disability services areprovided.service providersee section
13.sexualoffenderordermeansadivision3order,interimdetentionorderorinterimsupervisionorderundertheDangerous Prisoners (Sexual Offenders) Act
2003.short term approval,
for part 6, see section 144.sole
tradersee section 44A.stage2commencementdate,forpart9,division5,subdivision 3, see section 269.supportnetworkseetheGuardianshipandAdministrationAct 2000,
schedule 4.temporaryoffenderprohibitionordermeansatemporaryorderundertheChildProtection(OffenderReportingandOffender Prohibition Order) Act 2004.transitional period,
for part 9, division 3, see section 249(1).Current as at
[Not applicable]Page 339
Notauthorised—indicativeonlyDisability Services Act 2006Schedule 8tribunalmeans 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 Actmeans theWorking with
Children(Risk Management and Screening) Act
2000.WWC positive noticemeans a positive notice issued under
theWorking with Children Act.Page 340Current as at
[Not applicable]