Disability (National Disability Insurance Scheme ...FILE/5910… · Web viewwhich provides that the Disability Services Commissioner may perform the specified powers with respect

Disability (National Disability Insurance Scheme Transition) Amendment

Bill 2019

Introduction Print

EXPLANATORY MEMORANDUM

Clause Notes

Part 1—Preliminary

Clause 1 sets out the main purposes of the Bill, which include—

to amend the Disability Act 2006 to—

provide a process for authorising the use of regulated restrictive practices; and

enable the Senior Practitioner to give directions to registered NDIS providers; and

provide for the use, transfer and disclosure of information in relation to registered NDIS providers and NDIS participants; and

streamline the process by which disability service providers may be deregistered; and

provide further for the access and inspection rights of a community visitor in relation to NDIS dwellings; and

repeal provisions relating to residential institutions; and

to amend the Residential Tenancies Act 1997 to—

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provide for an SDA resident to seek relief if the SDA resident has been coerced or deceived into entering a tenancy agreement; and

make the penalty and offence provisions in Part 12A consistent with amendments made by the Residential Tenancies Amendment Act 2018; and

further provide for regulatory oversight of SDA residency agreements by the Director of Consumer Affairs Victoria; and

provide protections for persons with complex needs, who require specialist disability accommodation, against eviction into homelessness.

The Bill also makes consequential and other related amendments to various Acts.

Clause 2 is the commencement provision.

Subclause (1) provides that Part 1, Division 1 of Part 2, Divisions 1 and 2 of Part 4 and sections 259 and 269 of the Bill will commence on the day after the day on which the Bill receives the Royal Assent.

Subclause (2) provides that section 262(1) will commence on the later of the day section 17(7) of the Guardianship and Administration Act 2019 commences, or the day section 293 of the Disability Service Safeguards Act 2018 commences.

Subclauses (3) and (4) provide that the remaining provisions of the Bill will commence on a day or days to be proclaimed, with a default commencement date of 1 July 2020. The reason for the later than normal default commencement date is to allow for additional time for residents in group homes to transition to SDA dwellings and the closure of residential institutions.

Part 2—Amendment of the Disability Act 2006

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Division 1—National Disability Insurance Scheme stage 1 amendments

Clause 3 provides that in Part 2 of the Bill the Disability Act 2006 is called the Principal Act.

Clause 4 amends departmental references to reflect machinery of government changes.

Subclause (1) amends the definition of the Department from the Department of Human Services to the Department of Health and Human Services in accordance with machinery of government changes.

Subclause (2) repeals section (3)(2) of the Disability Act 2006 as it relates to a previous change to the name of the Department of Health and Human Services.

Clause 5 amends references to the Department of Human Services in section 10A of the Disability Act 2006 to be the Department of Health and Human Services to reflect the machinery of government changes.

Clause 6 amends references to the Department of Human Services in section 10B of the Disability Act 2006 to be the Department of Health and Human Services to reflect the machinery of government changes.

Subclause (2) amends section 10B(2) of the Disability Act 2006 to insert references to the Secretary to the Department of Health and Human Services. The provision will now provide that any recording made by the Register of Titles in relation to any land disposed of or dealt with that is in the name of either the Secretary to the Department of Human Services or the Secretary to the Department of Health and Human Services must be made in the name of either the Secretary to the Department of Health and Human Services or the Secretary to the Department of Human Services. This is to ensure that the provision applies to both land held in the name of the Secretary to the Department of Health and Human Services and land held in the name of the Secretary to the Department of Human Services.

Clause 7 amends the reference to the Department of Human Services in section 10C of the Disability Act 2006 to be the Department of

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Health and Human Services to reflect the machinery of government changes.

Clause 8 amends section 20 of the Disability Act 2006 which provides for the establishment and constitution of the Disability Services Board. The amendment inserts new subsection (6A) into section 20 to provide that the term of a member's office may be extended once for a period not exceeding 3 years. Previously there was no authority to extend an appointment, only the authority to reappoint a person.

Clause 9 amends section 152(4)(b) of the Disability Act 2006 to reflect the new name of the Department of Justice, being the Department of Justice and Community Safety, as a result of a machinery of government change.

Clause 10 amends section 166 of the Disability Act 2006 to reflect the new name of the Department of Justice, being the Department of Justice and Community Safety, as a result of a machinery of government change.

Clause 11 amends section 175(3) of the Disability Act 2006 to reflect the new name of the Department of Justice, being the Department of Justice and Community Safety, as a result of a machinery of government change.

Clause 12 amends section 176 of the Disability Act 2006 so that the person in charge of the residential treatment facility at which a resident has died is obliged to notify the Secretary to the Department of Justice and Community Safety. Previously, the provision placed an obligation to notify the Secretary to the Department of Justice. The amendments are consequential to a machinery of government change

Clause 13 amends section 177(2) and (3) of the Disability Act 2006 to reflect the new name of the Department of Justice, being the Department of Justice and Community Safety, as a result of a machinery of government change.

Clause 14 amends section 179 of the Disability Act 2006 so that the provision relates to the requirement for the Secretary to give

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notice to the Secretary of the Department of Justice and Community Safety of the transfer of a security resident. Previously, the Secretary was required to notify the Secretary of the Department of Justice. The amendment is consequential to a machinery of government change.

Clause 15 amends subsections (1), (2), (3), (5), (7), and (8) of section 180 of the Disability Act 2006 to reflect the new name to the Department of Justice, being the Department of Justice and Community Safety. This reflects a machinery of government change and that the Secretary to the Department of Justice and Community Safety is responsible for forensic residents detained in prison.

Clause 16 amends section 205(1) so that the Secretary may make available staff members to disability service providers. Previously, staff members could only be made available to disability service providers providing disability services under the Disability Act 2006.

Clause 17 repeals sections 223, 224, 227(3), 228, 229 and 231 of the Disability Act 2006 which are all spent provisions.

Division 2—National Disability Insurance Scheme stage 2 amendments

Clause 18 amends the purpose of the Disability Act 2006 to include that it provides a mechanism by which NDIS participants' rights are protected in relation to the use of restrictive practices and compulsory treatment.

Clause 19 inserts, amends and repeals definitions in the Disability Act 2006.

A key definition is the definition of restrictive practice which replaces the term restrictive intervention which is being repealed. Restrictive practice is defined to mean any practice or intervention that has the effect of restricting the rights or freedom of movement of a person with a disability or of an NDIS participant.

A definition of regulated restrictive practice is inserted and has the same meaning as in the NDIS (Restrictive Practices and Behaviour Support) Rules. A definition of NDIS (Restrictive

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Practices and Behaviour Support) Rules is inserted to mean the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018, however titled, and as in force from time to time under the NDIS Act. Under those rules, regulated restrictive practice means seclusion, chemical restraint, mechanical restraint, physical restraint and environmental restraint. Regulated restrictive practices are a subset of restrictive practices.

Seclusion, mechanical restraint, and physical restraint are all defined to have the same meaning as in the NDIS (Restrictive Practices and Behaviour Support) Rules 2018 as amended from time to time. The previous definitions of seclusion, and mechanical restraint are substituted with the above, and a definition of physical restraint which reflects the above is inserted. The definitions of restraint, chemical restraint and restrictive intervention are repealed as they are not consistent with the NDIS (Restrictive Practices and Behaviour Support) Rules.

The alignment of these definitions with the NDIS (Restrictive Practices and Behaviour Support) Rules is required to implement the National Disability Insurance Scheme and will ensure there is national consistency in relation to the definitions of regulated restrictive practices which are regulated and overseen by the NDIS Quality and Safeguards Commission.

Other key definitions have been inserted by the Bill in the Disability Act 2006 to define NDIS terms.

NDIS behaviour support plan, NDIS provider, NDIS Quality and Safeguards Commission and registered NDIS provider (a subset of NDIS provider) are defined so that they have the same meaning as these terms have in the National Disability Insurance Scheme Act 2013 (NDIS Act) of the Commonwealth.

NDIS Commissioner is defined to refer to the Commissioner for the NDIS Quality and Safeguards Commission referred to in section 181C of the NDIS Act. This is to allow amendments to the Disability Act 2006 to align with the NDIS Act.

A definition of NDIS dwelling is also inserted which covers all accommodation funded under the NDIS, being SDA enrolled

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dwellings and short-term accommodation and assistance dwellings.

SDA recipient is defined to mean an NDIS participant who is funded to reside in an SDA enrolled dwelling, which is the same meaning given to that term in the Residential Tenancies Act 1997. This is to enable the provisions in the Disability Act 2006 that provide safeguards to individuals living in residential services under the Disability Act 2006 to be amended so that they continue to apply to those individuals when their accommodation transitions to SDA accommodation provided under the Residential Tenancies Act 1997.

The definition of detain is also amended to clarify that in Part 8, it means a form of restrictive practice used on a person for the purposes of reducing the risk of violence or the significant risk of serious harm the person presents to another. This amendment reflects the intended use of detention in Part 8 of the Disability Act 2006.

Clause 20 expands the objectives in section 4 of the Disability Act 2006 to include providing a process for authorising the use of restrictive practices and the appropriate use of compulsory treatment of NDIS participants.

Clause 21 amends section 5 of the Disability Act 2006.

Subclause (2) inserts a new subsection 3A which expands the principles in section 5 of the Disability Act 2006 to include NDIS participants in relation to the use of restrictive practices and compulsory treatment

Subclause (3) amends section 5(4) of the Disability Act 2006 so that the least restrictive option should be used when restricting a person with a disability or an NDIS participant's rights or opportunities.

Subclause (4) inserts a new section 5(6) of the Disability Act 2006 to expressly provide that it is the intention of Parliament that new subsection (3A) and subsection (4) should be given effect to when administering restrictive practices and compulsory treatment for NDIS participants wherever possible.

Clause 22 makes amendments to sections 7(1), (3) and (4) of the Disability Act 2006 which provide safeguards to individuals in relation to the provision of advice, notifications or information under the

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Disability Act 2006 to provide for these safeguards to apply to NDIS participants.

Clause 23 expands the functions of the Secretary under section 8 of the Disability Act 2006 to include setting requirements in relation to screening people employed by either a disability service provider or registered NDIS provider and to provide safeguards to persons with a disability pending the establishment of a Victorian NDIS worker screening unit and making recommendations and reports to the Minister with respect to matters relating to NDIS participants.

Clause 24 amends section 16 of the Disability Act 2006 to insert a new subsection providing that the functions of the Disability Services Commissioner which are set out in section 16(1)(a) to (f) continue to apply in relation to a former disability service provider (a person or body whose registration as a disability service provider has lapsed or has been revoked) or a former regulated service provider (a person or body that has ceased being a regulated service provider) to the extent that Divisions 6, 6A, 6B, 6C, 8 and 9 of Part 6 apply. These Divisions provide for the Disability Services Commissioner to receive complaints and undertake investigations. This reflects the expansion of those Divisions to former disability service providers and former regulated service providers in relation to any matter that has occurred in the 24 months prior to the provider ceasing to be a disability service provider or regulated service provider. This will ensure that Disability Services Commissioner investigations may continue, with respect to matters arising prior to transition given the NDIS Quality and Safeguards Commission's jurisdiction relates to matters arising post transition to the NDIS.

Clause 25 inserts new subsection 1A into section 17 of the Disability Act 2006 which provides that the Disability Services Commissioner may perform the specified powers with respect to a former disability service provider or former regulated service provider to the extent that Divisions 6, 6A, 6B, 6C, 8 and 9 of Part 6 apply to them. This reflects the expansion of those Divisions to former disability service providers and former regulated service providers in relation to any matter that has occurred in the 24 months prior to the provider ceasing to be a disability service provider or regulated service provider to ensure

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there are no gaps in complaints and investigation avenues post transition to the NDIS.

Clause 26 inserts a new subsection (3A) into section 19 of the Disability Act 2006 so that the Disability Services Commissioner's ability to name a service provider in annual reports for specified matters is expanded to include former disability service providers and former regulated service providers to the extent that Divisions 6, 6A, 6B, 6C, 8 and 9 of Part 6 apply to them. This reflects the expansion of those Divisions to former disability service providers and former regulated service providers in relation to any matter that has occurred in the 24 months prior to the provider ceasing to be a disability service provider or regulated service provider to ensure there are no gaps in complaints and investigation avenues post transition to the NDIS.

Clause 27 amends subsection 23(2)(a) of the Disability Act 2006, which sets out the responsibility of the Senior Practitioner, to replace the reference to restrictive interventions with restrictive practices to reflect terminology used under the NDIS.

Clause 28 amends section 24 of the Disability Act 2006 which sets out the functions of the Senior Practitioner. The amendments replace any references to restrictive interventions with restrictive practices and expand the functions in subsection (1)(c) (regarding provision of information to persons with a disability subject to compulsory treatment) and (1)(g) (regarding research into restrictive practices and compulsory treatment and providing information on practice options to disability service providers) to NDIS participants and registered NDIS providers.

Subsections (1)(d) and (e) are substituted. These subsections set out the function of the Senior Practitioner to—

provide advice to disability service providers to improve practice in relation to the use of restrictive interventions and compulsory treatment;

give directions to disability service providers about restrictive interventions, compulsory treatment, behaviour support plans and treatment plans.

The substituted sections provide for the above functions to also apply to registered NDIS providers and replace references to restrictive interventions with restrictive practices. This is

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necessary to reflect the Senior Practitioner's new functions with respect to approval of restrictive practices for use on, and monitoring supervised treatment orders used on, NDIS participants, and reflect terminology used under the NDIS.

Clause 29 expands the Senior Practitioner's delegation power in section 25(2)(a) of the Disability Act 2006 to include NDIS participants so that the Senior Practitioner must only delegate to a person who has sufficient knowledge and expertise in respect of persons with a disability and NDIS participants. This is necessary given the Senior Practitioner's new functions with respect to NDIS participants.

Clause 30 amends section 27 of the Disability Act 2006 which sets out the special powers of the Senior Practitioner in relation to disability service providers.

The amendments provide for the Senior Practitioner's special powers to apply in relation to the use of restrictive practices or compulsory treatment by registered NDIS providers. This includes that the Senior Practitioner may visit and inspect any place (other than private residences that are not NDIS dwellings) where services are provided under the NDIS and may request an NDIS provider to provide information about any restrictive practices and compulsory treatment. Previously the special powers only related to disability service providers.

The amendments are necessary given the Senior Practitioner's new functions with respect to use of regulated restrictive practices and compulsory treatment on NDIS participants by registered NDIS providers.

The amendments also replace any references to restrictive interventions with restrictive practices to reflect terminology used under the NDIS.

Subclause (5) inserts new subsections (5A), (5B) and (5C).

New subsection (5A) authorises the Senior Practitioner to notify the NDIS Commissioner in relation to an NDIS provider.

New subsection (5B) authorises the Senior Practitioner to prohibit the use of restrictive practices or a specified form of restrictive practices by either disability service providers, registered NDIS providers, or a person belonging to a specified

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class of such providers, in relation to specified categories of individuals.

New subsection (5C) requires the Senior Practitioner to publish a prohibition made under new subsection (5B) on the Department's internet site and provide the prohibition to each applicable provider.

Subclause (6) substitutes a new subsection (6) which provides that the specified persons must, upon request, provide the Senior Practitioner with any reasonable assistance required in the performance or exercise of a power, duty or function under the Disability Act 2006. The specified persons now includes registered NDIS providers and their staff and management, in addition to the existing disability service providers and their staff and management.

Subclause (7) amends section 27(7) so that the offence in that subsection applies to all persons specified in subsection (6).

Clause 31 amends the heading to section 30 of the Disability Act 2006 to clarify that the functions of a community visitor in section 30 relate to residential services. This is necessary given the community visitors are given new functions with respect to NDIS dwellings. The community visitors' functions regarding inquiring into the use of restrictive interventions is amended so that it relates to inquiries regarding use of restrictive practices to reflect terminology used under the NDIS.

Clause 32 inserts a new section 30A into the Disability Act 2006 which provides for the functions of a community visitor to visit an SDA enrolled dwelling that is the dwelling of an SDA resident in accordance with an SDA residency agreement, a short-term accommodation and assistance dwelling provided by a registered NDIS provider to an NDIS participant, and an SDA enrolled dwelling let under a tenancy agreement, to make the specified enquiries. A community visitor may not visit an SDA enrolled dwelling let under a tenancy agreement unless requested to do so by an SDA resident living there, or by a person on behalf of the SDA resident with the SDA resident's consent. Community visitor's may only visit SDA enrolled dwellings let under a tenancy agreement if requested as individuals that elect to enter into a tenancy agreement under Part 2 of the Residential Tenancies Act 1997 are electing to opt out of the provisions of Part 12A of that Act. These residents should have the authority

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to request that community visitors visit their SDA enrolled dwelling, however should not be made subject to these visits without their consent.

Clause 33 amends the specified persons to whom the Community Visitors Board may refer a matter under section 33 of the Disability Act 2006 to include the NDIS Quality and Safeguards Commission, the NDIA and the Director within the meaning of the Australian Consumer Law and Fair Trading Act 2012. This reflects the transfer of services to regulation by the NDIA and NDIS Quality and Safeguards Commission, and the transition of regulation of group homes as SDA enrolled dwellings under the Residential Tenancies Act 1997.

Clause 34 amends sections 34(1) and 36 of the Disability Act 2006.

Subclause (1) expands the reporting obligations of community visitors under section 34(1) so that it includes reporting to the Community Visitors Board on visits by community visitors to NDIS dwellings, in addition to reporting on visits to premises. The amendment is consequential to the new power of community visitors to visit NDIS dwellings.

Subclause (2) expands the secrecy provision in section 36 of the Disability Act 2006 so that the secrecy obligation for community visitors does not apply to producing documents to a court in the course of a proceeding under the Residential Tenancies Act 1997, in addition to a criminal proceeding or proceedings under the Disability Act 2006. This is consequential to the transition of the regulation of group homes to the Residential Tenancies Act 1997.


Subclauses (1) and (2) amend section 39(2) and (3) of the Disability Act 2006 so that the secrecy provision in section 39(3) applies to former disability service providers and their staff, and any person who has provided services under the Disability Act 2006. Previously, only current providers and persons currently providing services were captured. The amendment is necessary to ensure the secrecy provision will continue to apply despite a large number of providers transitioning to the NDIS and ceasing to provide services under the Disability Act 2006.

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Subclause (3) inserts a new section 39(3A) which allows a person or body required to comply with the secrecy provision to disclose information about disability services or regulated disability services to the specified Commonwealth government departments. The intent is to ensure information may be disclosed where appropriate to assist in transition of persons from service provision under the Disability Act 2006 to service provision under the Commonwealth Continuity of Supports Programme.

Subclause (4) amends section 39(4) of the Disability Act 2006 to clarify that the exceptions to the secrecy provision apply, where relevant, to specified persons or bodies, and ensure the secrecy provision does not prevent information from being disclosed to the specified Commonwealth government departments. Subclause (4) also amends section 39(4)(d) to replace a reference to the National Disability Insurance Scheme within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth with "NDIS" given that term is now defined.

Subclause (5) substitutes a new section 39(6) which provides that despite the secrecy provision, a person or body may use, transfer or disclosure the specified information for any purpose for or with respect to the NDIS or its implementation, to the NDIA, the NDIS Quality and Safeguards Commission, and NDIS provider or any prescribed person or body or any person or body belonging to a prescribed class of person or body. The information which may be shared now includes—

information about persons or bodies who are or were providing disability services, regulated services or services under the NDIS, including current and former disability service providers, regulated service providers or NDIS providers;

information about persons who received, or are receiving disability services, regulated disability services or services under the NDIS; and

information about incidents, complaints, use of restrictive practices and compulsory treatment and compliance with the standards under section 97.

This is intended to ensure all necessary information may be shared as appropriate to ensure a seamless transition and

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regulation of services, and to ensure that rights of people with a disability are protected and safeguarded.

Subclause (6) amends section 39(9) so that the new exception to the secrecy provision in new subsection (3A) also has effect despite any other Act or law, other than the Charter of Human Rights and Responsibilities Act 2006.

Clause 36 inserts a new section 39A into the Disability Act 2006 to provide the Secretary with authority to transfer or disclose, to the specified persons and bodies, information about worker screening, as defined in subsection (2), in relation to a person who provided, provides or seeks to provide disability services or services under an NDIS plan. The intent is to ensure the Secretary has requisite authority to disclose information about a person's suitability to work with NDIS participants and persons with a disability to the persons or bodies who seek to employ or engage them, or who are responsible for regulating their employment or engagement, or the person or body employing or engaging them.

Clause 37 amends section 41(2) of the Disability Act 2006 so that the Secretary has an express power to impose any condition or restriction on the registration of a disability service provider at any time, to vary any condition or restriction placed on the registration of a disability service provider at any time, or impose a new condition or restriction after a disability service provider has been registered. Previously, the power was to impose conditions or restrictions on disability service providers registration at the time of registration.

Clause 38 substitutes a new section 43(1) into the Disability Act 2006 which provides that the Secretary may revoke the registration of a disability service provider if—

the disability service provider is a registered NDIS provider and has not received or has ceased receiving funds for the provision of disability services under this Act or is not a party to a contract with the Secretary under section 10 of this Act. This is a new power.

the disability service provider is a registered NDIS provider and has requested the Secretary to revoke the provider's registration. This is a new power.

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in any other case, if the Secretary considers it appropriate to do so. This is an existing power.

The amendment intends on allowing revocation of registration for disability service providers transitioning to the NDIS so that there is no longer dual regulation of providers.

Clause 39 substitutes section 44 of the Disability Act 2006.

New section 44(1) provides the Secretary must not refuse an application for registration as a disability service provider under section 40, or refuse an application for renewal of registration as a disability service provider under section 42, unless the Secretary has provided written notice setting out the specified matters to the person or disability service provider, and considered any submissions made in response. These notice obligations are existing requirements.

New section 44(2) requires the Secretary to provide a written notice to the disability service provider setting out the specified matters, and considering any submissions made in response, before the Secretary revokes a disability service provider's registration because—

the disability service provider is a registered NDIS provider and has not received, or has ceased receiving funding, or has ceased being a party to a contract under section 10 (see new section 43(1)(b)). This is a new requirement.

the Secretary considers it is appropriate. This is an existing requirement.

New section 44(3) requires a disability service provider whose registration is revoked as the provider has not received, or has ceased receiving funding, or ceased being a party to a contract under section 10, to give a written notice to every person the provider provides disability services to that contains any information required by the Secretary. This is to ensure the individual is provided with information regarding who regulates their service provider once they are no longer a registered disability service provider under the Disability Act 2006.

Clause 40 amends section 45(1)(c) of the Disability Act 2006 so that the ability for a disability service provider to seek VCAT review of the Secretary's decision to revoke the provider's registration is

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limited to where the Secretary revokes registration under section 43(1)(c) (where the Secretary considers revocation is appropriate). The effect is that disability service providers will be unable to seek review where revocation of registration is under section 43(1)(a) or (b). VCAT review is unnecessary in those circumstances given revocation of registration is as a result of transition to the NDIS or at the request of the disability service provider.


Subclause (1) amends the heading to reflect persons or bodies may be deemed to be registered or may be registered as disability service providers to reflect the new registration power of the Secretary.

Subclause (2) amends section 48(2) so that a deemed registration of a person or body under section 48(1) continues irrespective of whether or not a funding agreement to the person or body ends or is terminated. This is to ensure that those disability service providers that are also registered community service organisations under the Children, Youth and Families Act 2005 continue to be disability service providers and can be required to comply with Part 7 of the Disability Act 2006 (restrictive practices).

Subclause (3) substitutes a new section 48(3), and inserts new section 48(4), (5) and (6). Under these new subsections, the Secretary may register a person or body by notice to the person or body, or a person or body belonging to a class of persons or bodies specified in a Government Gazette notice, as a disability service provider despite the person or body not meeting the registration requirements under section 41(1) of the Disability Act 2006. The registration may be on the condition that it is limited to those provisions of the Disability Act 2006 specified in the notice of registration. Previously, the Secretary only had power to deem community services under the Children, Youth and Families Act 2005 that provide services to children with disabilities as a disability service provider and had no power to impose a condition limiting registration to those provisions of the Disability Act 2006 specified in the registration notice. The amendments are necessary to ensure community services may continue to be deemed to be disability service providers where appropriate, in addition to certain Supported Independent

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Living Providers who will deliver services previously provided as residential services, and other providers if appropriate, to ensure there is no diminution in safeguards to persons with a disability, whilst allowing flexibility to avoid dual regulation where appropriate.

Clause 42 inserts a new section 48A in the Disability Act 2006 which provides the Secretary a new power to exempt a disability service provider by notice to the provider, or disability service providers belonging to a class of disability service providers by notice in the Government Gazette, from complying with any requirement of the Disability Act 2006 that is specified in the relevant notice. The new power provides the necessary flexibility to enable providers to continue to be subject to appropriate provisions and safeguards, whilst avoiding dual regulation where appropriate.

Clause 43 inserts a new section 103A into the Disability Act 2006 which expands Division 5 of Part 6 so that the requirements regarding internal complaints processes and the obligation to prevent adverse effects on a person who makes a complaint or the person with a disability continues to apply to disability service providers, and extends to former disability service providers in relation to a matter that occurred 24 months prior to the provider's registration ceasing. This is intended to ensure there is no gap in the ability for a person to make complaints once providers transition to the NDIS given that the complaints process under the NDIS will only capture matters occurring post transition.

Clause 44 inserts a new section 106AA into the Disability Act 2006 which expands Division 5A of Part 6 so that the requirements regarding internal complaints processes and the obligation to prevent adverse effects on a person who makes a complaint or the person with a disability continues to apply to regulated service providers, and extends to former regulated service providers in relation to a matter that occurred 24 months prior to the provider ceasing to be a regulated service provider. This is intended to ensure there is no gap in the ability for a person to make complaints once providers transition to the NDIS given that the complaints process under the NDIS will only capture matters occurring post transition.

Clause 45 inserts a new subsection (2) into section 108 of the Disability Act 2006 which expands Division 6 of Part 6 so that complaints

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may continue to be made to the Disability Services Commissioner in relation to disability service providers and regulated service providers, and is extended so that complaints may be made in relation to former disability service providers and former regulated service providers in relation to a matter that occurred in the 24 months prior to the disability service provider or regulated service provider ceased to be a disability service provider or regulated service provider and so that the Disability Services Commissioner may exercise the Commissioner's powers and functions in relation to such complaints. This is intended to ensure there is no gap in the ability for a person to make complaints once providers transition to the NDIS given that the complaints process under the NDIS will only capture matters occurring post transition to the NDIS.

Clause 46 inserts a new subsection (2) into section 108A of the Disability Act 2006 to clarify that a reference to a service provider in Division 6 of Part 6 continues to include disability service providers and regulated service providers, and is extended to include former disability service providers and former regulated service providers. The amendment is consequential to the Disability Services Commissioner's complaints functions and powers being expanded to include former disability service providers and former regulated service providers.

Clause 47 amends section 109(1) of the Disability Act 2006 so that complaints may be made which arise from the provision of former disability services and former regulated disability services, or that a former disability service provider or former regulated service provider has acted unreasonably in the specified circumstances. This is in addition to the current ability for complaints to be made about current disability services and regulated disability services, or that a current disability service provider or regulated service provider has acted unreasonably. The amendment is consequential to the Disability Services Commissioner's complaints functions and powers being expanded to include former disability service providers and former regulated service providers.

Clause 48 inserts a new section 127 into the Disability Act 2006 which expands the Disability Services Commissioner's powers and functions in Division 6A of Part 6 with respect to initiated

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investigations into current disability service providers and regulated service providers so that it also applies to—

former disability service providers and former regulated service providers in relation to matters that arose in the 24 months prior to the provider ceasing to be a disability service provider or regulated service provider irrespective of whether an investigation had commenced; and

any initiated investigation not concluded before the provider ceased to be a disability service provider or regulated service provider.

However, Division 6A of Part 6 will not apply to a former disability service provider or former regulated service provider in relation to a systemic initiated investigation across 2 or more service providers unless it commenced prior to each service provider ceasing to be a disability service provider or regulated service provider.

The expansion of powers is intended to ensure there is no gap in appropriate investigatory powers once providers transition to the NDIS given that the investigation powers of the NDIS Quality and Safeguards Commission will relate to matters occurring post transition to the NDIS.

Clause 49 amends section 128B of the Disability Act 2006 to ensure that the Disability Services Commissioner may conduct investigations into the provision of services by former disability service providers and former regulated service providers, in addition to current disability service providers and regulated service providers, to persons with a disability. The amendment is consequential to the Disability Services Commissioner's initiated investigation functions and powers being expanded to include former disability service providers and former regulated service providers.

Clause 50 inserts a new section 128GA into the Disability Act 2006 which expands the Disability Services Commissioner's powers and functions under Division 6B of Part 6 with respect to investigating matters referred by the Minister regarding current

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disability service providers and regulated service providers so that it also applies to investigations referred by the Minister into—


any referred investigation not concluded before the provider ceased to be a disability service provider or regulated service provider.

However, Division 6B of Part 6 will not apply to a former disability service provider or former regulated service provider in relation to systemic matters across 2 or more service providers unless the referred investigation commenced prior to each service provider ceasing to be a disability service provider or regulated service provider.

The expansion of powers is intended to ensure there is no gap in appropriate investigatory powers once providers transition to the NDIS given that the investigation powers of the NDIS Quality and Safeguards Commission will relate to matters occurring post transition to the NDIS.

Clause 51 substitutes section 128I(2) of the Disability Act 2006 so that the Minister or Secretary may refer to the Disability Services Commissioner any matter relating to the specified matters. The specified matters are expanded to include the provision of complaints about abuse or neglect in the provision of disability services or regulated disability services provided by a former disability service provider or former regulated service provider. Previously, they only included disability service providers and regulated service providers. The amendment is consequential to the Disability Services Commissioner's referral investigation functions and powers being expanded to include former disability service providers and former regulated service providers.

Clause 52 inserts a new section 128NA into the Disability Act 2006 which expands the Disability Services Commissioner's powers and functions under Division 6C of Part 6 with respect to follow up investigations regarding current disability service providers and

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regulated service providers so that it also applies to follow up investigations regarding—


any follow up investigation not concluded before the provider ceased to be a disability service provider or regulated service provider.

However, Division 6C of Part 6 will not apply to a former disability service provider or former regulated service provider in relation to follow up investigations regarding systemic matters across 2 or more service providers unless the follow up investigation commenced prior to each service provider ceasing to be a disability service provider or regulated service provider.

The expansion of powers allows the Disability Services Commissioner to follow up on complaints investigations, initiated investigations and referred investigations which may now be conducted into former disability service providers and former regulated service providers.


Subclause (1) amends the heading to reflect that community visitors may visit NDIS dwellings, in addition to residential services.

Subclause (2) inserts new section 129(1A) and (1B) to provide community visitors with the power to visit any SDA enrolled dwelling provided under an SDA residency agreement or short-term accommodation and assistance dwelling with or without notice and at times the community visitors thinks fit. These new powers are in addition to the community visitors current power to visit residential services, which includes short-term accommodation and assistance dwellings (formerly respite services provided under the Disability Act 2006).

Subclause (3) inserts new section 129(4), (5) and (6) in the Disability Act 2006. New subsections (4) and (5) provide the Minister with the power to direct a community visitor to visit a

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short term accommodation and assistance dwelling or an SDA enrolled dwelling provided under an SDA residency agreement at the times directed. This new power is in addition to the Minister's current power to direct community visitors to visit residential services. New subsection (6) provides that a community visitor must not visit an SDA enrolled dwelling provided under a tenancy agreement except with consent in respect to a request under section 131A of the Disability Act 2006. Individuals that elect to enter into a tenancy agreement under Part 2 of the Residential Tenancies Act 1997 are electing to opt out of the provisions of Part 12A of that Act. These residents should have the authority to request that community visitors visit their SDA enrolled dwelling, however should not be made subject to these visits without their consent.

The amendments to the functions and obligations of community visitors reflect the transition of services to the NDIS and regulation of residential services under the Residential Tenancies Act 1997.

Clause 54 substitutes new subsections (2) and (3) into section 130 of the Disability Act 2006 to provide community visitors with powers of inspection with respect to SDA enrolled dwellings provided under an SDA residency agreement and short-term accommodation and assistance dwellings. When visiting such dwellings, a community visitor may exercise any of the functions and powers specified in new subsection (3).

Previously, subsection (2) and (3) of section 130 contained an obligation on disability service providers and their staff and managers to provide reasonable assistance to community visitors, and contained an offence for failure to do so, and an offence for failure to provide true and correct answers to community visitors. This obligation and offence still applies but has been expanded to apply to registered NDIS providers and their staff and management, and moved to new section 130A so that section 130 relates solely to the inspection powers of community visitors.

Clause 55 inserts new section 130A into the Disability Act 2006.

New section 130A(1) provides that a disability service provider, registered NDIS provider or any member of their staff or

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management must give reasonable assistance required to a community visitor when a community visitor is exercising powers or functions under the Disability Act 2006.

New section 130A(2) provides that a failure to render assistance under subsection (1), or a failure to give full and true answers to a community visitor exercising powers or functions under the Disability Act 2006, is an offence punishable by 60 penalty units.

New section 130A reflects the previous obligation and offence provision that applied to disability service providers and their staff or management under section 130(2) and (3), and expands the obligation and offence to apply to registered NDIS providers and their staff or management.

Clause 56 amends the heading of section 131 of the Disability Act 2006 to clarify that section 131 relates to requests made by residents in a residential service to see a community visitor. This is necessary given community visitors may also be requested to visit NDIS participants residing in NDIS dwellings.

Clause 57 inserts a new section 131A into the Disability Act 2006.

Under new subsections (1) and (2), the following persons may make a request to see a community visitor—

an SDA resident, or someone on the resident's behalf, living in an SDA enrolled dwelling provided under an SDA residency agreement;

a person living in a short-term accommodation and assistance dwelling, or someone on their behalf; or

an SDA resident, or someone on the resident's behalf with the resident's consent, living in an SDA enrolled dwelling provided under a tenancy agreement. Consent is needed before community visitors visit these types of dwellings because individuals that elect to enter into a tenancy agreement under Part 2 of the Residential Tenancies Act 1997 are electing to opt out of the provisions of Part 12A of that Act. These residents should have the authority to request that community visitors visit their SDA enrolled dwelling, however should not be made subject to these visits without their consent.

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New subsection (3) provides that within 72 hours of receiving such a request, the dwelling or support provider (as defined in new subsection (7)) must advise the Community Visitors Board. Failure to do so is an offence punishable by 5 penalty units.

Under new subsections (4), (5) and (6), the Community Visitors Board must respond to a request within 7 days unless the Board considers it would instead be appropriate to arrange for the Public Advocate to respond to the request, or unless the Board considers the request is vexatious, frivolous or lacking in substance.


Subclause (1) amends section 132(1) to remove the requirement for the record, which must be kept by disability service providers of visits by community visitors, to be kept in a prescribed form.

Subclause (2) inserts new subsections (2) and (3) which provide that a dwelling or support provider (as defined) that is present during a community visitor visit of an SDA enrolled dwelling or short term accommodation and assistance dwelling must keep a record of the visit. Failure to do so is an offence punishable by 5 penalty units. This expands on the existing offence in subsection (1) of section 132 applying to disability service providers providing residential services for failure to record visits by community visitors to residential services.

Clause 59 inserts a new section 132AA into the Disability Act 2006 which expands the Disability Services Commissioner's powers and functions under Division 8 of Part 6 with respect to the conduct of accountability investigations, investigatory powers for accountability investigations and related matters regarding current disability service providers and regulated service providers so that they also apply to accountability investigations regarding—


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any accountability investigation not concluded before the provider ceased to be a disability service provider or regulated service provider.

However, Division 8 of Part 6 will not apply to a former disability service provider or former regulated service provider in relation to accountability investigations regarding systemic matters across 2 or more service providers unless the accountability investigation commenced prior to each service provider ceasing to be a disability service provider or regulated service provider.

The expansion of powers allows the Disability Services Commissioner to conduct accountability investigations into former disability service providers and former regulated service providers and is consequential to the expansion of the Disability Services Commissioner's powers to conduct complaint investigations, initiated investigations and follow up investigations into former disability service providers and former regulated service providers.

Clause 60 amends section 132E(1) of the Disability Act 2006 so that an authorised officer appointed by the Disability Services Commissioner may visit and inspect any part of a premises on which a service provider provides or provided a service that is being investigated during an accountability investigation. Previously, the power only allowed inspections at premises at which services were currently being delivered. The amendment is consequential to the expansion of the Disability Services Commissioner's powers to former disability service providers and former regulated service providers.

Clause 61 amends section 132F(1)(a) of the Disability Act 2006 so that when visiting premises under section 132E, an authorised officer appointed by the Disability Services Commissioner may make enquiries in relation to a person with a disability who is receiving or has received services on the premises from the service provider. Previously, the power only allowed authorised officers to make enquires in relation to a person who was currently receiving services. The amendment is consequential to the expansion of the Disability Services Commissioner's powers to former disability service providers and former regulated service providers.

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Clause 62 amends section 132M of the Disability Act 2006 so that a person who is providing, or did provide, services that are the subject of an accountability investigation must ensure that the Disability Services Commissioner or the Commissioner's authorised officers are provided with assistance during an accountability investigation that is reasonably required. Previously, this obligation only extended to persons currently providing services. The amendment is consequential to the expansion of the Disability Services Commissioner's powers to former disability service providers and former regulated service providers.

Clause 63 inserts a new section 132ZCA into the Disability Act 2006 which expands the Disability Services Commissioner's powers and obligations regarding reports, and obligation to avoid unnecessary duplication, in Division 9 of Part 6 regarding specified investigations into current disability service providers and regulated service providers so that they also apply to an investigation under Divisions 6, 6A, 6B, 6C or 8—

regarding former disability service providers and former regulated service providers in relation to matters that arose in the 24 months prior to the provider ceasing to be a disability service provider or regulated service provider irrespective of whether an investigation had commenced; and

not concluded before the provider ceased to be a disability service provider or regulated service provider.

However, Division 9 of Part 6 will not apply to a former disability service provider or former regulated service provider in relation to investigations regarding systemic matters across 2 or more service providers unless the investigation commenced prior to each service provider ceasing to be a disability service provider or regulated service provider.

The new section is consequential to the expansion of the Disability Services Commissioner's investigation powers into former disability service providers and former regulated service providers.

Clause 64 inserts new Parts 6A and 6B into the Disability Act 2006.

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New Part 6A sets out the process and requirement for registered NDIS providers to appoint an Authorised Program Officer. New Part 6A is part of the authorisation process which registered NDIS providers are required to comply with as a condition of registration under the NDIS Act before using regulated restrictive practices on NDIS participants.

New section 132ZI requires a registered NDIS provider that intends on using a restrictive practice or compulsory treatment to appoint one or more Authorised Program Officers.

New section 132ZJ requires the registered NDIS provider to apply for approval of the proposed Authorised Program Officer from the Senior Practitioner. Subclause (3) provides that the Senior Practitioner may approve the proposed appointment subject to conditions. Subclause (4) requires the Senior Practitioner to keep a register of all Authorised Program Officers appointed under new Part 6A.

New section 132ZK provides that the Senior Practitioner may revoke the approval of an appointment of an Authorised Program Officer under new Part 6A if the Senior Practitioner considers it is appropriate.

New section 132ZL requires the Senior Practitioner to notify the NDIS Commissioner if the Senior Practitioner refuses to approve the appointment of an Authorised Program Officer or revokes the appointment of an Authorised Program Officer.

Under new section 132ZM, before the Senior Practitioner refuses to approve an appointment, or revokes approval of an appointment of an Authorised Program Officer, the Senior Practitioner is required to provide notice to the registered NDIS provider setting out the matters specified in subsection (2) and consider any submissions made in response to the notice.

New section 132ZN provides a registered NDIS provider the right to seek VCAT review of a decision by the Senior Practitioner to refuse an application for approval of, or to revoke an approval of, an appointment of an Authorised Program Officer within the specified timeframe.

New section 132ZO provides the Senior Practitioner with the power to issue directions, to be published on the Department of Health and Human Service's internet site, for registered NDIS

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providers to comply with in relation to Authorised Program Officers, including directions relating to minimum qualifications and training.

New Part 6B sets out the authorisation process for the use of regulated restrictive practices by registered NDIS providers. New Part 6B is part of the authorisation process which registered NDIS providers are required to comply with as a condition of registration under the NDIS Act before using regulated restrictive practices on NDIS participants who are not subject to a supervised treatment order, or who are subject to a supervised treatment order obtained by a disability service provider.

New section 132ZP provides that new Part 6B applies to NDIS participants other than persons who are subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider. For those persons, Division 7 of Part 8 sets out the requirements for use of restrictive practices by registered NDIS providers on persons subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider. Additionally, Division 6 of Part 8 sets out protective provisions with which disability service providers must comply to use restrictive practices on persons, including NDIS participants, subject to supervised treatment orders obtained by an Authorised Program Officer for either a disability service provider or a registered NDIS provider.

New section 132ZP also provides that the purpose of new Part 6B is to protect the rights of NDIS participants to whom the new Part applies by ensuring that regulated restrictive practices are authorised before being used. The effect is that registered NDIS providers must not use regulated restrictive practices on an NDIS participant who is not subject to a supervised treatment order unless the requirements in new Part 6B are met.

New section 132ZQ provides that a registered NDIS provider must not use regulated restrictive practices on an NDIS participant unless—

the matters in paragraph (a) are met. The matters specified require authorisation of the proposed use of regulated restrictive practices from the Authorised Program Officer, and approval from the Senior Practitioner for specified forms of regulated restrictive practices or use on a specified person. It also requires

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that the matters in new section 132ZR(1)(a), (b), (d) and (f) are met at the time regulated restrictive practices will be used; or

the matter specified in paragraph (b) is met. The matter specified is that an authorisation is required under new section 132ZX(2) from the person in charge of the registered NDIS provider. Such authorisations are given in emergencies.

New section 132ZR provides that the Authorised Program Officer may authorise the use of regulated restrictive practices on NDIS participants by registered NDIS providers provided the Authorised Program Officer is satisfied the matters set out in subsection (1) are met.

Under subsection (2), an authorisation will be in force until it is revoked, it expires or the NDIS participant's NDIS behaviour support plan is reviewed and a new one is developed, whichever happens sooner. This will ensure that regulated restrictive practices contained in an NDIS behaviour support plan after it has been reviewed are authorised by an Authorised Program Officer before they are used.

Under subsection (3), an authorisation may be subject to any conditions considered appropriate by the Authorised Program Officer other than a condition requiring the variation of an NDIS behaviour support plan. This restriction on the ability to impose conditions is necessary as the NDIS (Restrictive Practices and Behaviour Support) Rules require regulated restrictive practices to be included in NDIS behaviour support plans prepared by NDIS behaviour support practitioners. Given this, only NDIS behaviour support practitioners may vary an NDIS behaviour support plan.

Prior to authorising the proposed use of a regulated restrictive practice, new section 132ZS requires an Authorised Program Officer to ensure the availability of an independent person to explain to the NDIS participant for whom regulated restrictive practices is proposed to be authorised, the proposed use of regulated restrictive practices and the option for the NDIS participant to seek VCAT review if the Authorised Program Officer and where relevant, Senior Practitioner, approves the use of the regulated restrictive practice on the participant.

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Under subsection (2), where an NDIS behaviour support plan has been reviewed, the Authorised Program Officer must ensure the availability of an independent person to explain the details of any changes and related matters where the changes will involve more restrictive forms or use of regulated restrictive practices. Under subsection (3), an independent person need not be available if it is not proposed that a more restrictive form or use of restrictive practice be included, the NDIS behaviour support plan was reviewed in the last 12 months and an independent person was available during that review.

Subsection (4) authorises the independent person to make a report to the Public Advocate or Senior Practitioner if the independent person believes the NDIS participant cannot understand the proposal to use regulated restrictive practices on the participant, or the independent person believes new Part 6B, the NDIS Act or the NDIS (Restrictive Practices and Behaviour Support) Rules are not being complied with.

Subsection (5) prevents an independent person from being associated with a disability service provider or NDIS provider for the NDIS participant subject to the proposed use of regulated restrictive practices, have any interest in the service being provided or from having any responsibility in relation to the participant's NDIS behaviour support plan.

Subsection (6) places an obligation on the Authorised Program Officer to arrange another independent person if the NDIS participant does not consider that the person assisting is independent.

New section 132ZT states that the Public Advocate, having received a report under new section 132ZS(4), has the power to refer the matter to the Senior Practitioner, initiate an application for review of the Authorised Program Officer's authorisation or if relevant, Senior Practitioner's approval, of the proposed use of regulated restrictive practices with VCAT, or provide information to the NDIA or NDIS Quality and Safeguards Commission.

New section 132ZU sets out the information an Authorised Program Officer must ensure is provided to the Senior Practitioner and notices a registered NDIS provider is required to provide to NDIS participants once regulated restrictive practices

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have been authorised by the Authorised Program Officer or if relevant, approved by the Senior Practitioner for use on the participant. Notice is required to be given to NDIS participants at least 2 working days prior to the proposed use of regulated restrictive practices and must contain the matters specified in subsection (3). This will ensure NDIS participants have sufficient time to seek VCAT review before regulated restrictive practices are used on the participant.

New section 132ZV provides that the Senior Practitioner may approve the use of regulated restrictive practices on NDIS participants by registered NDIS providers if—

the practice is in the form of seclusion, physical restraint or mechanical restraint; or

the practice is in a form of regulated restrictive practice required to be approved by the Senior Practitioner before it is used; or

approval from the Senior Practitioner is required of the use of any regulated restrictive practices on NDIS participants belonging to a class of persons subject to a relevant direction.

Before approval is provided, the Senior Practitioner must be satisfied of the matters set out in subsection (2). These are consistent with the matters which an Authorised Program Officer must be satisfied of before authorising use of a regulated restrictive practice.

Under subsection (3), an approval is in force until it is revoked, expires, or the NDIS participant's NDIS behaviour support plan is reviewed and a new one is developed. This will ensure that regulated restrictive practices contained in an NDIS behaviour support plan after it has been reviewed are approved by the Senior Practitioner where relevant before they are used.

Subsection (4) allows the Senior Practitioner to lodge evidence with the NDIS Commissioner, or registered NDIS provider that the use of regulated restrictive practices has been authorised by the Authorised Program Officer or where relevant, approved by the Senior Practitioner. This will assist registered NDIS

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providers comply with the requirements of the NDIS (Restrictive Practices and Behaviour Support) Rules that require registered NDIS providers to lodge evidence that the use of a regulated restrictive practice is authorised in line with the State's authorisation process.

New section 132ZW provides for the NDIS participant to seek review from VCAT of an Authorised Program Officer's decision under new section 132ZR to authorise the use of regulated restrictive practices by registered NDIS providers on NDIS participants. Where the Senior Practitioner has approved the use of a regulated restrictive practice under new section 132ZV, the NDIS participant may seek joint review of both the Authorised Program Officer's decision to authorise the use, and the Senior Practitioner's decision to approve the use. If the Senior Practitioner decides not to approve the use of regulated restrictive practices under new section 132ZV, the relevant registered NDIS provider may seek review of the decision from VCAT.

Subsection (4) requires VCAT to consider the requirements of Part 6B when determining a review.

Subsections (5), (6) and (7) set out the orders that VCAT may make following a review. For an application made by an NDIS participant, following review, VCAT may confirm a decision to authorise or approve, as the case requires, and dismiss the application, order the registered NDIS provider to request a review of the NDIS participant's NDIS behaviour support plan by the NDIS behaviour support practitioner, or direct that the regulated restrictive practice may not be used on the NDIS participant.

For an application made by a registered NDIS provider, VCAT may direct the Senior Practitioner to approve the use of the regulated restrictive practices, confirm the Senior Practitioner's decision not to approve and dismiss the application, or order that the registered NDIS provider request a review of the NDIS participant's NDIS behaviour support plan.

VCAT is not provided power to order that the NDIS participant's NDIS behaviour support plan be reviewed or varied. This is inconsistent with VCAT's authority when determining an application by or on behalf of a person with a disability under Part 7. This is necessary as the NDIS (Restrictive Practices and Behaviour Support) Rules require regulated restrictive practices

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to be contained in an NDIS participant's NDIS behaviour support plan prepared by an NDIS behaviour support practitioner.

New section 132ZX sets out when a registered NDIS provider may use regulated restrictive practices on NDIS participants who do not have an NDIS behaviour support plan which provides for the use of regulated restrictive practices, or the participant has a plan which has not been authorised by the Authorised Program Officer or approved by the Senior Practitioner (if relevant) under new Part 6B. In these circumstances, a registered NDIS provider may use regulated restrictive practices on the NDIS participant if the criteria in subsection (1) and (2) are met.

If a registered NDIS provider uses regulated restrictive practices on an NDIS participant in these circumstances and intends to do so again, the registered NDIS provider is required to appoint an Authorised Program Officer if none is already appointed and obtain the necessary authorisation from the Authorised Program Officer under new section 132ZR and, if required, approval from the Senior Practitioner under new section 132ZV.

New section 132ZY provides the Senior Practitioner the power to issue directions regarding restrictive practices in relation to the matters specified in subsection (2). The directions may be issued to all registered NDIS providers, a specific registered NDIS provider, or registered NDIS providers belonging to a specified class of registered NDIS providers. The Senior Practitioner may also require a registered NDIS provider to provide reports to the Senior Practitioner on the use of restrictive practices.

Clause 65 substitutes the heading to Part 7 of the Disability Act 2006 to clarify that Part 7 relates to the use of restrictive practices by disability service providers.


Subclause (1) substitutes new subsection (1). New subsection (1) sets out to whom Part 7 of the Disability Act 2006 applies. Part 7 will not apply to persons who have, or are required to have, a treatment plan under Part 8. It is unnecessary for Part 7

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to apply to those persons as Part 8 sets out the criteria for use of restrictive practices on them. Part 7 will otherwise apply to persons who receive disability services. This is consistent with the current cohort in subsection (1) to whom Part 7 applies. In addition, new subsection (1) will also specify that Part 7 applies to children who are placed with an out of home care service under the Children, Youth and Families Act 2005 and—

who are NDIS participants who do not have an NDIS behaviour support plan; or

who have a disability and the Secretary declares by notice to the relevant out of home care service that Part 7 applies to them.

This will ensure children with a disability (including those that are NDIS participants receiving services from disability service providers) placed in out of home care are protected by the safeguards in Part 7. New Part 6B applies to children who are NDIS participants who have an NDIS behaviour support plan which includes restrictive practices.

As a result of this provision and the requirements in Part 7, disability service providers must comply with Part 7 if they intend on using restrictive practices on the above persons.

Subclause (2) amends section 133(2) to set out the purpose of Part 7 with respect to restrictive practices. Previously, the purpose was set out with respect to restrictive interventions. This amendment is to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS.

Subclause (3) inserts a new subsection (3). A disability service provider who is also a registered NDIS provider is not required to comply with Part 7 in relation to a person to whom Part 7 applies if the person is also an NDIS participant and the disability service provider has already complied with new Part 6B in relation to that person. This will ensure providers delivering both State funded services under the Disability Act 2006 and services under the NDIS to an NDIS participant are not subject to 2 regulatory regimes, and persons who receive both types of services are not subject to 2 behaviour support plans.

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Clause 67 amends section 134 of the Disability Act 2006 by substituting a new heading to ensure it is clear the section relates to the necessity to obtain approval before using restrictive practices and amends the provision so that it is an offence for a disability service provider to use restrictive practices on a person to whom Part 7 applies without approval under section 135. Previously, the offence related to the use of restrictive interventions. This amendment is necessary to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS.

Clause 68 amends section 135. Subclauses (1) and (2) amend the heading and subsections (1) and (4)(a) of section 135 of the Disability Act 2006 to replace references to "restrictive interventions" with "restrictive practices" so that section 135 sets out the process for a disability service provider to obtain approval from the Secretary to use restrictive practices. This amendment is necessary to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS.

Subclause (3) inserts a new power for the Senior Practitioner to issue directions to disability service providers in relation to Authorised Program Officers, including the minimum qualifications and training. A direction issued is published on the Department's internet site. This new power is to ensure consistency with the standards applying to registered NDIS providers under new Part 6A.

Clause 69 amends section 136(1) of the Disability Act 2006 so that the Secretary may revoke the approval of a disability service provider to use restrictive practices if appropriate. Previously, section 136(1) referred to the Secretary's ability to revoke the approval to use restrictive interventions. This amendment is necessary to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Clause 70 amends section 137(1) of the Disability Act 2006 so that the Secretary is required to give notice before refusing an application for approval, or revoking an approval, to use restrictive practices. Previously, the section set out notice requirements with respect to restrictive interventions. This amendment is necessary to reflect

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terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Clause 71 amends section 138(1)(b) of the Disability Act 2006 so that a disability service provider may apply to VCAT for a review of the Secretary's decision to revoke approval for the disability service provider to use restrictive practices. Previously, the section gave a right of review with respect to revocation of approval to use restrictive interventions. This amendment is necessary to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Clause 72 amends section 139(1) of the Disability Act 2006 so that an Authorised Program Officer must ensure that any restrictive practices used on a person to whom Part 7 applies is administered in accordance with the Disability Act 2006. Previously the obligation related to restrictive interventions. This amendment is necessary to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Clause 73 inserts a new section 139A into the Disability Act 2006 which ensures persons to whom Part 7 applies who are subject to regulated restrictive practices from both a registered NDIS provider and a disability service provider are subject to one behaviour support plan and consistent use of the practices.

Subsection (1) allows a disability service provider, who has been approved to use regulated restrictive practices under section 135, to use regulated restrictive practices on a person to whom Part 7 applies if the person is also an NDIS participant and the matters in new section 132ZQ(a) are met. This requires that—

an Authorised Program Officer of a registered NDIS provider has authorised the use of the regulated restrictive practice on the person under new Part 6B; and

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if required, the Senior Practitioner has approved the use of the regulated restrictive practice on the person under new Part 6B; and

at the time of use, the criteria in new section 132ZR(1)(a), (b), (d) and (f) are satisfied.

Subsection (2) sets out the reporting obligations of a disability service provider who uses regulated restrictive practices under subsection (1). Subsection (3) gives the Senior Practitioner power to issue directions to disability service providers who use regulated restrictive practices under subsection (1).

Clause 74 amends section 140 of the Disability Act 2006 to reflect terminology used under the NDIS, the regulation of the broader range of regulated restrictive practices consistent with the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules, and to modernise the provision.

Subsection (1) amends the heading so that section 140 relates to the use of regulated restrictive practices instead of restraint and seclusion.

Subsections (2), (3), (4) and (5) amend section 140 so that unless new section 147 applies, a regulated restrictive practice must not be used on a person to whom Part 7 applies by a disability service provider unless the specified matters are met. Previously, restraint or seclusion could be used under section 140 if section 147 applied, or the specified matters were met.

Clause 75 amends section 141 of the Disability Act 2006 to reflect terminology used under the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Subclause (1) amends the heading so that section 141 relates to the requirement for the use of regulated restrictive practices to be included in a behaviour support plan. Previously, it related to restraint and seclusion.

Subclause (2) amends section 141(1) and (2) so that before regulated restrictive practices are used, the disability service provider must be satisfied of the specified matters and develop a behaviour support plan containing the specified matters. Previously, this section imposed requirements with respect to restraint or seclusion.

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These amendments are necessary to reflect terminology used under the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules and the regulation of the broader range of regulated restrictive practices consistent with the NDIS Act.

Subclause (3) inserts a new paragraph (ca) after subsection (3)(c) so that in preparing a behaviour support plan, a disability service provider must also consult with any registered NDIS providers providing services to the person for whom the behaviour support plan is being prepared. This amendment is necessary as a disability service provider may be providing services to a person who is also an NDIS participant.

Clause 76 inserts a new paragraph (ca) after subsection (3)(c) of section 142 of the Disability Act 2006 so that in reviewing a behaviour support plan, a disability service provider must also consult with any registered NDIS providers providing services to the person for whom the behaviour support plan is being prepared. This amendment is necessary as a disability service provider may be providing services to a person who is also an NDIS participant.


Subclauses (1), (3) and (4) amend sections 143(1)(a), (1A)(b), (1B)(a) and (2)(a) so that the obligation on an Authorised Program Officer to ensure an independent person is available to explain certain matters to a person to whom Part 7 relates prior to the proposed use of a regulated restrictive practice. Previously, this related to the proposed use of restraint or seclusion. These amendments are necessary to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Subclause (2) substitutes a new subsection (1)(b) to update the information an independent person must provide to a person to whom Part 7 applies regarding the person's right to seek VCAT review when regulated restrictive practices have been approved for use of them. This is consequential to the amendments to the VCAT review rights.

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Subclause (5) substitutes a new subsection (3) which provides that an independent person must not be one of the specified persons. The amendments ensure an independent person must not be, or be connected to, an NDIS provider, in addition to the existing requirement that an independent person must not be, or be connected to, a disability service provider providing services to the person.

Clause 78 amends section 144(1)(b) of the Disability Act 2006 so that the Public Advocate has power to seek VCAT review of a decision to use regulated restrictive practices within 28 days of receiving a report under section 143. Previously the power existed with respect to a decision to use restraint or seclusion. This amendment is necessary to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.


Subclause (1) amends the heading so that the section relates to the requirements for use of regulated restrictive practices instead of restraint and seclusion.

Subclause (3) amends subsections (2) and (4) so that the criteria within these subsections relate to the approval of the use of regulated restrictive practices instead of restraint or seclusion.

These amendments are necessary to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS.

Subclause (2) substitutes a new subsection (1) so that a regulated restrictive practice must not be used unless—

the inclusion of the practice in the behaviour support plan is approved by the Authorised Program Officer. This is an existing requirement.

the use is approved by the Senior Practitioner if the regulated restrictive practice is in the form of seclusion, physical restraint or mechanical restraint. This is a new requirement.

the use is approved by the Senior Practitioner if the regulated restrictive practice is in the form of a

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regulated restrictive practice which requires approval under new section 145A. This is a new requirement.

the use is approved by the Senior Practitioner if the person on whom the regulated restrictive practice is to be used is a person, or belongs to a class of persons, requiring approval under new section 145A before the regulated restrictive practice may be used on the person. This is a new requirement.

Subclause (4) amends subsection (3) so that if the Senior Practitioner is required to approve the use of a regulated restrictive practice, the notice the Authorised Program Officer is required to provide notifying the person on whom the practice will be used of specified matters must be provided after the Senior Practitioner has provided any required approvals. Where the Senior Practitioner is not required to give approval, the existing requirement on the Authorised Program Officer to give notice after approving the inclusion of the proposed use of regulated restrictive practices in the behaviour support plan remains. In either case, the notice must include the matters specified, including the person's right to seek VCAT review, and must be provided at least 2 days prior to the proposed use of regulated restrictive practices. This has been amended as a consequence of the amendments made to the person's right to seek VCAT review.

These amendments increase protections for persons to whom Part 7 applies and ensures consistency with the authorisation and approval process registered NDIS providers are required to comply with before using regulated restrictive practices under Part 6B.

Clause 80 inserts a new section 145A which sets out the circumstances in which the Senior Practitioner's approval is required before a disability service provider may use specified regulated restrictive practices and the criteria the Senior Practitioner must be satisfied of before approving use of the regulated restrictive practice. The Senior Practitioner's approval is required if—

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the regulated restrictive practice to be used is in the form of seclusion, physical restraint or mechanical restraint; or

the regulated restrictive practice to be used is in a form that is subject to a direction issued by the Senior Practitioner that requires approval from the Senior Practitioner; or

the person on whom the regulated restrictive practice is to be used is a person, or belongs to a class of persons, subject to a direction issued by the Senior Practitioner requiring the Senior Practitioner's approval before the regulated restrictive practice may be used on the person.

These amendments increase protections for persons to whom Part 7 applies and ensures consistency with the authorisation and approval process registered NDIS providers are required to comply with before using regulated restrictive practices under Part 6B.


Subclause (1) substitutes new subsections (1), (1A) and (1B) in section 146 of the Disability Act 2006. These new subsections provide for the right of a person subject to the behaviour support plan to seek review from VCAT of an Authorised Program Officer's decision under section 145 to approve the inclusion of the proposed use of regulated restrictive practice in a person's behaviour support plan.

Where the Senior Practitioner has approved the proposed use of a regulated restrictive practice under new section 145A, there is a new right for the person subject to the behaviour support plan to seek joint review of both the Authorised Program Officer's decision to approve the inclusion of the proposed use of regulated restrictive practices in the person's behaviour support plan, and the Senior Practitioner's decision to approve the proposed use of regulated restrictive practices.

If the Senior Practitioner decides not to approve the proposed use of regulated restrictive practices under new section 145A, there is a new right for the relevant disability service provider to seek review of the decision from VCAT. The new review rights are consequential to the new requirement for the Senior Practitioner to approve the proposed use of regulated restrictive practices

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under new section 145A before they may be used by a disability service provider.

Subclause (2) substitutes a new subsection (3) and inserts a new subsection (4) and (5). These new subsections set out the orders that VCAT may make following a review. The amendments are required as a result of the additional review rights.

For an application made by the person subject to the behaviour support plan, following review, VCAT may confirm the Authorised Program Officer's and as the case requires, the Senior Practitioner's decision, and dismiss the application, order the disability service provider to prepare a new behaviour support plan in accordance with the order or direct that the regulated restrictive practice be removed from the behaviour support plan.

For an application made by a disability service provider, VCAT may confirm the Senior Practitioner's decision not to approve and dismiss the application, order the disability service provider to prepare a new behaviour support plan in accordance with the order, direct that the regulated restrictive practice be removed from the behaviour support plan or direct the Senior Practitioner to approve the use of the regulated restrictive practice on the person.


Subclause (1) amends the heading and subclauses (2), (4), (5) and (6) amend subsections (1)(b)(ii), (2), (3) and (4)(a), (b), (d) and (e) to reflect the terminology used under the NDIS so that the heading and provision relates to the criteria for use of regulated restrictive practices in emergencies and the reporting requirements for such use. Previously, section 147 set out the criteria for the use of restraint or seclusion in emergencies and the reporting requirements for such use.

Subclause (3) substitutes a new subsection (1)(a) which provides that section 147 allows regulated restrictive practices to be used in the circumstances specified in subsection (2) if a person to whom Part 7 applies does not have a behaviour support plan authorised by an Authorised Program Officer, or if required, approved by the Senior Practitioner, which provides for the

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propose use. This is consequential to the new requirement for the Senior Practitioner to approve certain regulated restrictive practices.

Clause 83 inserts a new section 147A into the Disability Act 2006. New section 147A provides the Senior Practitioner the power to issue directions regarding restrictive practices in relation to the matters specified in subsection (2). The directions may be issued to all disability service providers, a specific disability service provider or disability service providers belonging to a specified class of disability service providers.

Clause 84 amends section 148 of the Disability Act 2006 so that the Senior Practitioner has an obligation to monitor the use of regulated restrictive practices in accordance with Part 7 and advise Authorised Program Officers of the timeframes within which Authorised Program Officers must provide reports on the implementation of a person's behaviour support plan, such reports to include the specified matters. Previously, the obligations related to the use of restraint or seclusion. These amendments are necessary to reflect terminology used under the NDIS and the regulation of the broader range of regulated restrictive practices consistent with the NDIS.

Clause 85 substitutes section 149 of the Disability Act 2006 so that it is an offence for a disability service provider to apply regulated restrictive practices to a person to whom Part 7 applies unless the application is in accordance with: new sections 133(3) or 139A; section 147; or sections 140, 145 and 145A. Previously, section 149 made it an offence for a disability service provider to apply restraint or seclusion except in accordance with section 140 or section 147. These amendments are necessary to reflect terminology used, and the regulation of the broader range of regulated restrictive practices consistent with, the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules, to reflect the new circumstance in which a disability service provider may apply regulated restrictive practices in new sections 133(3) and 139A, and to reflect the approvals that are required under section 145 and 145A before regulated restrictive practices may be used.

Clause 86 amends section 150 of the Disability Act 2006 so that the Senior Practitioner may exercise the specified powers with respect to restrictive practices other than regulated restrictive practices used

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by disability service providers. Previously, the Senior Practitioner could exercise these powers with respect to restrictive interventions other than restraint or seclusion. These amendments are necessary to reflect terminology used under the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.


Subclause (1) amends section 153(2)(c) so that a treatment plan which is required to be prepared within 28 days of a person with a disability being admitted to a residential treatment facility under a specified order must specify any restrictive practices that are to be used. Previously, restrictive interventions were required to be specified.

Subsection (2) amends the note under section 152(2)(c) to reflect that Division 6 of Part 8 contains provisions in relation to the use of restrictive practices instead of restrictive interventions.

These amendments are necessary to reflect terminology used under the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Clause 88 amends section 167(1A)(c) of the Disability Act 2006.

Subclause (1) amends section 167(1A)(c) so that the treatment plan required to be prepared under section 167(1) must specify the restrictive practices. Previously, restrictive interventions were required to be specified.

Subclause (2) amends the note under section 167(1A)(c) to reflect that Division 6 of Part 8 will relate to restrictive practices instead of restrictive interventions.

The amendments are necessary to reflect terminology used under the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Clause 89 amends the note at the foot of section 180(6) of the Disability Act 2006 to specify that Division 6 of Part 8 relates to restrictive practices rather than restrictive interventions. This amendment is necessary to reflect terminology used under the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Clause 90 amends the heading of Division 5 of Part 8 of the Disability Act 2006 to clarify that the Division applies to supervised

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treatment orders implemented by disability service providers and registered NDIS providers. Previously, the Division only applied to disability service providers. The amendment is consequential to the requirement for registered NDIS providers to only use regulated restrictive practices if authorised by the State.

Clause 91 amends section 183 of the Disability Act 2006 to clarify that the purpose of the Division is to provide for the making of supervised treatment orders to enable the detention of a person by a registered NDIS provider, in addition to disability service providers. The amendment is consequential to the requirement for registered NDIS providers to only use regulated restrictive practices if authorised by the State.

Clause 92 inserts a new section 184 into the Disability Act 2006.

The effect of subclause (1) is that if a person or body is a disability service provider and a registered NDIS provider, the person or body is not required to comply with Division 5 of Part 8 in its capacity as a disability service provider in respect of a person if the person or body has already done so in the person or body's capacity as a registered NDIS provider. The intent is to ensure a person or body is not subject to dual regulation and persons are not subject to 2 separate supervised treatment orders and treatment plans whilst ensuring their rights are protected.

The effect of subclause (2) is that a disability service provider is not required to comply with Division 5 of Part 8 in relation to a person who is an NDIS participant if another person or body that is a registered NDIS provider is already required to obtain a supervised treatment order for the person. However, if the disability service provider intends to use restrictive practices on an NDIS participant who is subject to a supervised treatment order obtained by an Authorised Program Officer of a registered NDIS provider, the disability service provider is required to comply with sections 201B(2) and 201L. The intent is to ensure a person is not subject to 2 separate supervised treatment orders and treatment plans whilst ensuring the person's rights are protected.

Clause 93 amends the heading to section 185 of the Disability Act 2006 regarding use of supervised treatment by disability service providers to clarify that the section applies only to a disability service provider. The amendment is consequential to Division 5

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of Part 8 now applying to registered NDIS providers, in addition to disability service providers.


Subsection (1) amends the heading regarding the requirement for a disability service provider to apply to the Secretary for approval to use supervised treatment (which includes requirements regarding appointment of an Authorised Program Officer) to clarify that the section applies only to a disability service provider. The amendment is consequential to Division 5 of Part 8 now applying to registered NDIS providers, in addition to disability service providers. Registered NDIS providers are required to comply with Part 6A in appointing an Authorised Program Officer.

Subsection (2) inserts new subsections (6) and (7) to provide that the Senior Practitioner may issue directions to disability service providers regarding Authorised Program Officers and that such directions must be published on the Department of Health and Human Service's internet site.

Clause 95 amends the heading to section 187 of the Disability Act 2006 regarding revocation of approval for a disability service provider to use supervised treatment to clarify that the section applies only to a disability service provider. The amendment is consequential to Division 5 of Part 8 now applying to registered NDIS providers, in addition to disability service providers.

Clause 96 amends the heading to section 188 of the Disability Act 2006 regarding the requirement for the Secretary to give notice before refusing to grant, or revoke approval for a disability service provider to use supervised treatment to clarify that the section applies only to a disability service provider. The amendment is consequential to Division 5 of Part 8 now applying to registered NDIS providers, in addition to disability service providers.

Clause 97 amends the heading to section 189 of the Disability Act 2006 regarding the right of a disability service provider to seek review of the Secretary's decision to refuse to grant approval to, or to revoke approval of, a disability service provider to use supervised treatment to clarify that the section applies only to a disability service provider. The amendment is consequential to Division 5 of Part 8 now applying to registered NDIS providers, in addition to disability service providers.

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Clause 98 amends the heading to section 190 of the Disability Act 2006 regarding the obligation of Authorised Program Officers of disability service providers to use supervised treatment to clarify that the section applies only to a disability service provider. The amendment is consequential to Division 5 of Part 8 now applying to registered NDIS providers, in addition to disability service providers.

Clause 99 inserts a new section 190A into the Disability Act 2006 which requires an Authorised Program Officer of a registered NDIS provider to ensure supervised treatment used by the registered NDIS provider is used in accordance with Division 5 of Part 8.

Clause 100 amends section 191 of the Disability Act 2006. The amendments are intended to provide part of the authorisation process which registered NDIS providers are required to comply with as a condition of registration under the NDIS Act before using regulated restrictive practices in the form of compulsory treatment on NDIS participants.

Subclause (1) amends the heading to section 191 to clarify that the section relates to the application for a supervised treatment order by a registered NDIS provider in addition to a disability service provider.

Subclause (2) amends subsection (1) to clarify that an Authorised Program Officer appointed by a disability service provider may apply for a supervised treatment order under subsection (1). The amendment is required as new subsection (1A) sets out the power for an Authorised Program Officer of a registered NDIS provider to apply for a supervised treatment order.

Subclause (3) inserts a new subsection (1A) which provides that an Authorised Program Officer of a registered NDIS provider may apply to VCAT for a supervised treatment order to be made with respect to an NDIS participant who meets the specified criteria in subsection (1A).

Subclause (4) expands the power of the Senior Practitioner in subsection (2) to give directions to an Authorised Program Officer to make an application to VCAT in respect of a person if the Senior Practitioner considers the specified criteria is met so

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that directions may also be given to an Authorised Program Officer of a registered NDIS provider.

Subclause (5) amends subsection (3) so that an application for a supervised treatment order by an Authorised Program Officer of a registered NDIS provider, in addition to an Authorised Program Officer of a disability service provider, must include a certificate given by the Senior Practitioner which sets out the specified matters. The matters specified for inclusion in a certificate have been expanded to take into account that an NDIS participant is living in an SDA enrolled dwelling provided under an SDA residency agreement rather than a residential service, and that an NDIS participant will have a treatment plan with an NDIS behaviour support plan attached that is approved by the Senior Practitioner.

Subclause (6) amends subsection (4) so that the obligation on an Authorised Program Officer of a disability service provider to notify the Public Advocate and the person who will be subject to the supervised treatment order or the application for the supervised treatment order also applies to the Authorised Program Officer of a registered NDIS provider.

Subclause (7) inserts a new subsection (4A) which requires the Senior Practitioner to give written notice to the NDIS Commissioner that a certificate under subsection (3) has been given in relation to an NDIS participant.

Subclause (8) amends subsection (5) so that the ability for the Public Advocate to be joined as a party to a proceeding for an application for a supervised treatment order by an Authorised Program Officer of a disability service provider also applies to an application for a supervised treatment order by an Authorised Program Officer of a registered NDIS provider.

Subclause (9) amends the criteria which VCAT must be satisfied of under subsection (6) before granting a supervised treatment order to reflect that an NDIS participant will have an NDIS behaviour support plan.

Subclause (10) substitutes a new subsection (7)(c) and subclause (11) inserts a new subsection (7)(ca). These changes amend the matters which must be included in a treatment plan under subsection (7) so that a treatment plan for a person subject to a supervised treatment order obtained by an Authorised Program Officer for a disability service provider must specify

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any restrictive practices to be used on the person, and a treatment plan for an NDIS participant subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider must include restrictive practices other than regulated restrictive practices and must attach the NDIS behaviour support plan. The requirements differ as the NDIS (Restrictive Practices and Behaviour Support) Rules require NDIS behaviour support plans to be prepared for NDIS participants by an NDIS behaviour support practitioner and include regulated restrictive practices.

Subclause (10) also substitutes the note in paragraph (c) of subsection (7). The new note specifies that Division 6 of Part 8 contains provisions regarding the use of restrictive practices under treatment plans. Previously, the note related to the use of restrictive interventions. This amendment is to reflect terminology used under the NDIS.

Clause 101 substitutes the heading to section 192 of the Disability Act 2006 regarding interim supervised treatment orders to clarify that both a registered NDIS provider, in addition to a disability service provider, may request such an order. The amendment is consequential to Division 5 of Part 8 now setting out the authorisation process for registered NDIS providers to use regulated restrictive practices via a supervised treatment order.

Clause 102 amends section 193 of the Disability Act 2006. The amendments are intended to provide part of the authorisation process which registered NDIS providers are required to comply with before using regulated restrictive practices in the form of compulsory treatment on NDIS participants.

Subclause (1) amends the heading to reflect that the section relates to supervised treatment orders for both persons with a disability and NDIS participants.

Subclauses (2) and (3) amend subsections (1) and (2) to expand the circumstances in which VCAT may make a supervised treatment order on an application by a disability service provider to include applications made by a registered NDIS provider for a supervised treatment order with respect to an NDIS participant.

Subclause (4) inserts a new subsection (2A) which provides that on an application for a supervised treatment order by a registered NDIS provider, VCAT must not specify that a treatment plan for

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an NDIS participant with an NDIS behaviour support plan be varied regarding regulated restrictive practices or in a manner that the NDIS behaviour support plan cannot be implemented. The amendment is necessary as the NDIS (Restrictive Practices and Behaviour Support) Rules require the proposed use of a regulated restrictive practice to be included in an NDIS behaviour support plan prepared by an NDIS behaviour support practitioner.

Subclause (5) substitutes a new subsection (3)(b) to provide that where an Authorised Program Officer of a registered NDIS provider applies for a supervised treatment order, the order must include the SDA enrolled dwelling provided under a residency agreement at which the person subject to the order must reside. Where an Authorised Program Officer of a disability service provider applies for a supervised treatment order, the order must include the residential service at which the person subject to the order must reside. Previously, subsection (3)(b) only related to residential services.

Clause 103 amends section 195 of the Disability Act 2006 which provides for the Senior Practitioner to supervise the implementation of supervised treatment orders.

Subclause (1) amends subsection (3) so that the ability for the Senior Practitioner to approve a material change is subject to subsection (5A), in addition to being subject to subsection (4). This is consequential to the new subsection (5A).

Subclause (2) substitutes new subsections (4) and (5), and inserts new subsections (5A) and (5B).

New subsections (4) and (5) set out the process for where there is a material change to a treatment plan relating to an increase in the level of supervision or restriction for a person with a disability subject to a supervised treatment order obtained by an Authorised Program Officer of a disability service provider. The process previously existed, however the substituted subsections make it clear that they only apply to a person subject to a supervised treatment order obtained by an Authorised Program Officer of a disability service provider.

New subsections (5A) and (5B) apply in relation to a person subject to a supervised treatment order obtained by an Authorised Program Officer of a registered NDIS provider and set out the

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process where a material change to a treatment plan or an NDIS behaviour support plan attached to a treatment plan relates to an increase in the level of supervision or restriction. The effect of the provisions is that if the Senior Practitioner considers it is necessary because of an emergency, the Senior Practitioner may approve the material change and must make an application to VCAT. If there is no emergency, the Authorised Program Officer of the registered NDIS provider must apply to VCAT. In either instance the application to VCAT must be for a variation of the treatment plan if it does not relate to a regulated restrictive practice, or for a review of the supervised treatment order if the material change does relate to the use of a regulated restrictive practice. This differs to the application required to be brought in relation to an order obtained by a disability service provider as it reflects that VCAT does not have any authority to vary a treatment plan or an NDIS behaviour support plan in relation to a regulated restrictive practice.

The requirements on registered NDIS providers are new and are consequential to Division 5 of Part 8 setting out the authorisation process for use of restrictive practices in the form of supervised treatment orders for registered NDIS providers.

Clause 104 amends section 196 of the Disability Act 2006 regarding applications to VCAT for review, variation or revocation of supervised treatment orders.

Subclause (2) amends subsections (5)(a) and (b), and 8(a) and (b) so that VCAT must be satisfied that the matters specified in section 191(1) or (1A) (as the case requires) which must be satisfied before obtaining a supervised treatment order continue to apply before revoking, confirming or varying a supervised treatment order. This is consequential to an Authorised Program Officer for a registered NDIS provider being able to make an application for a supervised treatment order under section 191(1A), in addition to an Authorised Program Officer for a disability service provider being able to apply for a supervised treatment order under section 191(1).

Subsections (1)(b), (5)(a)(ii) and (7) are amended by subclauses (1), (3) and (4) so that a person may not apply to VCAT for a variation of a treatment plan for an NDIS participant subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider which relates to

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any regulated restrictive practices or would result in the NDIS participant's NDIS behaviour support plan being unable to be implemented. Further VCAT may not make any orders which vary the regulated restrictive practices contained in an NDIS participant's NDIS behaviour support plan or that would result in the plan being unable to be implemented. These are new restrictions.

Subclause (5) substitutes a new section 196(9) so that VCAT must not confirm a supervised treatment order on an application for it to be revoked unless satisfied that it can be implemented by the disability service provider or registered NDIS provider and if the supervised treatment order is for an NDIS participant and was obtained by an Authorised Program Officer for a registered NDIS provider, the order or variation does not relate to regulated restrictive practices or would not result in the participant's NDIS behaviour support plan being unable to be implemented. Previously, this latter restriction was not included.

The amendments in subclauses (1), (3), (4) and (5) are consequential to the NDIS (Restrictive Practices and Behaviour Support) Rules requiring regulated restrictive practices to be included in the NDIS behaviour support plan approved by the NDIS behaviour support practitioner.

Clause 105 amends section 196A of the Disability Act 2006.

Subclause (1) amend subsection (2)(b) of the Disability Act 2006 so that the Authorised Program Officer of both a disability service provider or registered NDIS provider is obliged to notify the Public Advocate, Senior Practitioner and person who is subject to the supervised treatment order of an application to determine the expiry of a supervised treatment order. Previously, the provision only related to persons with a disability. The amendment is consequential to the new ability for supervised treatment orders to be obtained by registered NDIS providers for NDIS participants.

Subclause (2) amends subsection (3) so that VCAT's powers on an application for determination regarding expiry of a supervised treatment order also relate to applications made by Authorised Program Officers for registered NDIS providers. This is consequential to the ability for Authorised Program Officers of registered NDIS providers to apply for supervised treatment orders for NDIS participants under new section 191(1).

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Clause 106 inserts a new section 196B in the Disability Act 2006 to require the Senior Practitioner to give written notice to the NDIS Commissioner of the specified events regarding supervised treatment orders and treatment plans in relation to an NDIS participant subject to supervised treatment orders or interim supervised treatment orders obtained by an Authorised Program Officer of a registered NDIS provider.

Clause 107 amends section 199(2)(b) of the Disability Act 2006 so that an Authorised Program Officer may only apply to the Senior Practitioner for an assessment order with respect to a person who is an SDA resident living in an SDA enrolled dwelling provided under an SDA residency agreement or a person with a disability residing in a residential service. Previously, the person had to reside in a residential service. The amendment is consequential to group homes being regulated under the Residential Tenancies Act 1997 as SDA enrolled dwellings.

Clause 108 inserts a new section 199B in the Disability Act 2006 which obliges the Senior Practitioner to give written notice to the NDIS Commissioner of the specified events occurring in relation to an NDIS participant regarding assessment orders.

Clause 109 expands section 201 of the Disability Act 2006 to allow for the apprehension of a person subject to a supervised treatment order who is absent without approval from the SDA enrolled dwelling at which the person is required to reside under the supervised treatment order. Previously, section 201 only allowed for apprehension of a person subject to a supervised treatment order who is absent from a residential service without approval. The amendment is consequential to expansion of Part 8 to NDIS participants who reside in SDA dwellings provided under an SDA residency agreement.

Clause 110 substitutes the heading to Division 6 of Part 8 of the Disability Act 2006 to specify that the Division applies to restrictive practices used by disability service providers implementing treatment plans. Previously the heading did not refer to disability service providers. The amendment is intended to clarify which providers the Division applies to given Part 8 is expanded to apply to registered NDIS providers.

Clause 111 amends the purpose and application of Division 6 of Part 8 in section 201A of the Disability Act 2006.

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Subclause (1) substitutes a new subsection (1). The effect of the amendment, coupled with the obligations in Division 6 of Part 8, is that a disability service provider must comply with the requirements of Division 6 of Part 8 if the disability service provider intends on using restrictive practices on—

a person with a disability for whom the disability service provider has prepared, or is required to prepare a treatment plan under Part 8;

an NDIS participant who is subject to a supervised treatment order (irrespective of who obtained the order) and on whom a disability service provider intends using restrictive practices.

Previously, subsection (1) did not take into account NDIS participants. The amendment is required given some NDIS participants subject to a supervised treatment order may be receiving services from disability service providers.

Subclause (2) amends subsection (2) so that it relates to the protection of persons to whom the Division applies with respect to use of restrictive practices instead of restrictive interventions. The amendment is consequential to aligning terminology with that used under the NDIS.

Subclause (3) amends the note at the foot of subsection (2) to clarify that Part 6B contains provisions which protect NDIS participants for whom a treatment plan is not in force.

Subclause (4) inserts a new subsection (3) and (4).

The effect of new subsection (3) is that a disability service provider may use restrictive practices on a person who is an NDIS participant subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider (who is not the disability service provider), if—

a registered NDIS provider is required to comply with Division 7 of Part 8 in relation to the participant;

the Secretary has given approval to the disability service provider to use restrictive practices under section 135 (the Secretary's ability to give approval is despite section 133 and sections 136, 137 and 138 will apply to that approval process), and

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the criteria in section 201L(1) (other than (f) are satisfied.

The intent is to ensure persons are not subject to 2 treatment plans or behaviour support plans whilst ensuring their rights are protected.

The effect of new subsection (4) is that if a disability service provider is also a registered NDIS provider and is providing services to a person subject to a supervised treatment order, the disability service provider is not required to comply with Division 6 if the provider complies with Division 7 in relation to the person. The intent is to ensure providers are not subject to dual regulatory regimes and that persons are not subject to 2 treatment plans or behaviour support plans whilst ensuring their rights are protected.

Clause 112 amends section 201B of the Disability Act 2006.

Subclauses (1) and (2) amend the heading and provision so that the provision relates to the requirement for a disability service provider to only use restrictive practices, rather than restrictive interventions, if the specified criteria is met. The amendment is necessary to reflect terminology used under the NDIS.

Subclause (3) inserts new subsections (2), (3) and (4). The effect of the new subsections are that a disability service provider may use a regulated restrictive practice on a person who is an NDIS participant subject to a supervised treatment order obtained by a registered NDIS provider if—

the registered NDIS provider is required to comply with Division 7 in relation to the NDIS participant;

the Secretary has granted approval for the disability service provider to use restrictive practices under section 135 (the Secretary's ability to give approval is despite section 133 and sections 136, 137 and 138 will apply to that approval process); and

provided that at the time the regulated restrictive practice is to be used, the disability service provider meets the requirements in section 201L(1) (other than paragraph (f)).

Where the disability service provider does so, the disability service provider must comply with the specified reporting

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requirements. The Senior Practitioner may issue directions to the disability service provider regarding the use of regulated restrictive practices in these circumstances. The intent is to ensure persons are not subject to 2 treatment plans or behaviour support plans whilst ensuring their rights are protected.

Clause 113 amends section 201C(1) of the Disability Act 2006 so that the Authorised Program Officer is obliged to ensure restrictive practices, rather than restrictive interventions, are used in accordance with the Division. The amendment is necessary to reflect terminology used under the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Clause 114 amends section 201D of the Disability Act 2006 so that a disability service provider must not use regulated restrictive practices, rather than restraint or seclusion, on a person to whom Division 6 of Part 8 applies unless the specified criteria applies. The amendments are to modernise the provision and to reflect terminology used under the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Clause 115 amends section 201E of the Disability Act 2006.

Subclause (1) amends the heading and subclause (2) amends subsections (1) and (2) so that the obligations on a person who is preparing a treatment plan under Part 8 for a person to whom Division 6 of Part 8 with respect to the requirement for including the use of regulated restrictive practices in a treatment plan applies to regulated restrictive practices rather than restraint and seclusion. The amendment is necessary to reflect terminology used under the NDIS Act and NDIS (Restrictive Practices and Behaviour Support) Rules.

Subsection (3) inserts a new paragraph (ca) into subsection (3) so that a person preparing a treatment plan must consult with any registered NDIS providers that provide services under the NDIS to the person for whom a treatment plan is being prepared. This is a new requirement and is intended to ensure all key service providers have input into a person's treatment plan.

Clause 116 amends section 201F of the Disability Act 2006 so that the obligations on the Senior Practitioner relate to monitoring the use of regulated restrictive practices under Division 6 of Part 8, advising the Authorised Program Officer regarding reporting requirements for the use of regulated restrictive practices, and

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issuing guidelines relating to the preparation of reports for the use of regulated restrictive practices, rather than restraint or seclusion. The amendment is necessary to reflect terminology used under the NDIS.

Clause 117 inserts a new section 201FA into the Disability Act 2006 which provides the Senior Practitioner the power to issue guidelines and directions relating to the use of restrictive practices and the development of treatment plans for all persons (regardless of whether or not they are NDIS participants) subject to a treatment order.

Clause 118 amends the offence in section 201G of the Disability Act 2006 so that it is an offence for a disability service provider to apply a regulated restrictive practice on a person to whom Division 7 of Part 8 applies unless done in accordance with section 201A(3) and (4), 201B or 201D. Previously, the offence applied to any person and did not include section 201B as an exception. The amendments are necessary as otherwise, registered NDIS providers using regulated restrictive practices in accordance with Division 7 of Part 8, or disability service providers using regulated restrictive practices in accordance with section 201B, would be committing an offence.

Clause 119 amends section 201H of the Disability Act 2006 so that the Senior Practitioner may exercise the specified powers in relation to other restrictive practices (which are restrictive practices that are not regulated restrictive practices) rather than in relation to other restrictive interventions (which meant restrictive interventions other than restraint or seclusion). The amendment is necessary to reflect terminology used under the NDIS.

Clause 120 inserts a new section 201I into the Disability Act 2006 which provides the Senior Practitioner the power to issue directions for the purposes of new Division 6 of Part 8 regarding restrictive practices in relation to the matters specified in subsection (2). The directions may be issued to all disability service providers, a specific disability provider or disability service providers belonging to a specified class of disability service providers.

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Clause 121 inserts a new Division 7 of Part 8 into the Disability Act 2006. New Division 7 of Part 8 contains new sections 201J to 201O.

The effect of new section 201J, coupled with the obligations in Division 7 of Part 8, is that if a registered NDIS provider intends to use restrictive practices on an NDIS participant who is subject to a supervised treatment order obtained by an Authorised Program Officer for a registered NDIS provider, the registered NDIS provider may only do so if the restrictive practices are authorised and used in accordance with new Division 7 of Part 8. If a registered NDIS provider intends on using regulated restrictive practices on an NDIS participant who is subject to a supervised treatment order obtained by an Authorised Program Officer for a disability service provider, the registered NDIS provider must comply with Part 6B.

New section 201K provides that a registered NDIS provider must not use restrictive practices on an NDIS participant who is subject to a supervised treatment order unless the specified criteria is satisfied.

New section 201L provides that a registered NDIS provider must not use a regulated restrictive practice on an NDIS participant who is subject to a supervised treatment order unless the specified matters apply. This is intended to form part of the authorisation process registered NDIS providers are required to comply with under the NDIS (Restrictive Practices and Behaviour Support) Rules before using regulated restrictive practices on NDIS participants.

New section 201M places an obligation on the Authorised Program Officer of the registered NDIS provider using restrictive practices on the NDIS participant to ensure restrictive practices are used in accordance with new Division 7 of Part 8 and the treatment plan, and for restrictive practices that are regulated restrictive practices, in accordance with the NDIS behaviour support plan.

New section 201N allows the Senior Practitioner to lodge evidence with the NDIS Commissioner or registered NDIS provider that the use of regulated restrictive practices on NDIS participants subject to supervised treatment orders have been authorised under the Disability Act 2006. This will assist registered NDIS providers to comply with their obligations to

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lodge evidence that the use of a regulated restrictive practice is authorised in line with the State's authorisation process.

New section 201O provides the Senior Practitioner the power to issue directions for the purposes of new Division 7 of Part 8 regarding restrictive practices in relation to the matters specified in subsection (2). The directions may be issued to all registered NDIS providers, a specific registered NDIS provider or registered NDIS providers belonging to a specified class of registered NDIS providers.

Clause 122 substitutes a new section 202(2) of the Disability Act 2006 to make it an offence for a person to make a false or misleading entry in a document which must be kept by a disability service provider or a registered NDIS provider under the Disability Act 2006. Previously, the offence related only to disability service providers.

Clause 123 expands the Secretary's delegation power in section 204(2) of the Disability Act 2006 so that the Secretary may delegate the Secretary's powers, duties or functions under any other Act or under regulations made under another Act that relate to or affects NDIS participants, in addition to persons with a disability. The amendment is necessary to reflect the Secretary's new powers, duties or functions with respect to NDIS participants.

Clause 124 amends section 219(2) of the Disability Act 2006 so that a copy of an order, direction, authority, decision or notice made or given under the Disability Act 2006 by the Minister, Secretary or Senior Practitioner which is signed and certified by them is taken to be evidence of the making of the order, direction, authority, decision or notice. Previously, this provision related only to the Minister. The amendment is required given the expanded role of the Senior Practitioner and Secretary resulting from the Bill.

Clause 125 inserts a new Division 4 of Part 10 into the Disability Act 2006 containing new sections 236 to 241.

New section 236 provides that a residential service declared to be a group home under section 64(1) prior to commencement of

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clause 125 ceases to be a group home if the specified criteria is met. If the specified criteria is not met within 6 months of the commencement of clause 125, the residential service automatically ceases to be a group home under the Disability Act 2006. The intent is to ensure that providers take steps to become registered SDA dwellings and meet the necessary requirements of the Residential Tenancies Act 1997 and to ensure that premises are not subject to dual regulatory regimes, without a requirement to individually degazette each property upon the criteria being met.

In new section 237, subsection (1) provides that when a person transitions to the NDIS, their behaviour support plan is considered an NDIS behaviour support plan and any restrictive practices in the behaviour support plan are considered authorised and approved for use under Part 6B. The effect is that the person's behaviour support plan may continue to be implemented by their provider despite the provider becoming a registered NDIS provider until the behaviour support plan expires or an NDIS behaviour support plan is developed for the NDIS participant, whichever happens sooner. The provision is intended to ensure there is no gap in provision of restrictive practices that are included in behaviour support plans and approved in accordance with the relevant requirements.

Subsection (2) of new section 237 provides the Senior Practitioner power to issue directions in relation to the use of restrictive practices on an NDIS participant who is subject to a behaviour support plan under subsection (1).

In new section 238, subsection (1) provides when a person who has a treatment plan developed under Division 5 of Part 8, and does not have an NDIS behaviour support plan, transitions to living in an SDA enrolled dwelling under an SDA residency agreement, the person's supervised treatment order and treatment plan developed under Division 5 of Part 8 continue until the specified period and may be implemented by the disability provider that developed or obtained them, irrespective of whether or not the provider has ceased being a disability service provider and has become a registered NDIS provider.

Subsection (2) of new section 238 provides the Senior Practitioner power to issue directions in relation to the use of restrictive practices on an NDIS participant who is subject to an NDIS behaviour support plan under subsection (1).

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Under new section 239, when a person who is subject to a supervised treatment order obtained by a disability service provider becomes an NDIS participant, their treatment plan and supervised treatment order will continue for the purposes of Divisions 5 and 7 of Part 8 until the specified period despite the premises at which they are detained becoming an SDA enrolled dwelling. In that case, the registered NDIS provider providing supported independent living services at the SDA enrolled dwelling to the NDIS participant will be responsible for implementing the supervised treatment order.

Under new section 240, when a person who is subject to an assessment order obtained by a disability service provider becomes an NDIS participant, their assessment order continues despite the premises at which they are detained becoming an SDA enrolled dwelling until the specified period. In that case, the registered NDIS provider providing supported independent living services at the SDA enrolled dwelling to the NDIS participant will be responsible for implementing the assessment order.

New section 241 inserts a transitional regulation making head of power, which allows the Governor in Council to make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Disability (National Disability Insurance Scheme Transition) Amendment Act 2019 including repeals and amendments made to that Act. Regulations made under this new section may be made having regard to the matters in subsection (2), including that they may have retrospective effect, and have effect despite anything to the contrary in any Act other than the Disability Act 2006 or the Charter of Human Rights and Responsibilities Act 2006; or any subordinate instrument. New section 241 is repealed on the second anniversary of the day on which it comes into operation.

Division 3—Other miscellaneous amendments

Subdivision 1—Residential institution amendments Clause 126 makes amendments to the definitions in section 3(1) of the

Disability Act 2006.

The definition of residential institution is repealed and consequently, the term residential institution is omitted from the

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definition of compulsory treatment, leave of absence and special leave. The repeal is consequential to the closure of residential institutions by 1 July 2020.

Clause 127 repeals section 6(1)(c) and (d) and (7) of the Disability Act 2006 which relate to persons with a disability living in residential institutions given the closure of residential institutions by 1 July 2020.

Clause 128 repeals the requirement in section 55(3) of the Disability Act 2006 for a person with an intellectual disability residing in a residential institution to have their support reviewed every 12 months. The repeal is consequential to the closure of residential institutions by 1 July 2020.

Clause 129 repeals Division 3 of Part 5 of the Disability Act 2006 regarding residential institutions. The repeal is consequential to the closure of residential institutions by 1 July 2020.

Clause 130 repeals subsection (2) of section 129 of the Disability Act 2006 which provided for community visitors to visit residential institutions at least once per month. The amendment is consequential to the closure of residential institutions by 1 July 2020.


Subclause (1) amends subsection (1) to ensure that a resident that is absent from a residential treatment facility on leave under the Disability Act 2006 or any other Act is subject to such security conditions as the Authorised Program Officer considers are necessary.

Subclause (2) amends subsection (2) to ensure a resident in a residential treatment facility may be transported to and from any place as may be necessary for the administration of the Disability Act 2006 or any other Act in accordance with the security conditions.

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Previously, section 159 did not refer to detention in, or leave from, a residential treatment facility under any other Act. The amendment is necessary as residents may be detained in, or on leave from, residential treatment facilities in accordance with orders made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Clause 132 amends section 160 of the Disability Act 2006 to set out who may apprehend a resident detained in a residential treatment facility who is absent without leave of absence or special leave under the Disability Act 2006 or any other Act. The amendment is necessary as residents may be on leave from residential treatment facilities in accordance with orders made under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

Clause 133 amends the heading and subsections (1) and (2) of section 161 of the Disability Act 2006 so that section 161 only relates to the transfer of a resident detained in a residential treatment facility to another residential treatment facility. Previously, such residents could also be transferred to residential institutions. This amendment is consequential to the closure of all residential institutions by 1 July 2020.

Clause 134 amends section 166 of the Disability Act 2006 so that section 166 only relates to the transfer of a person with an intellectual disability lawfully imprisoned or detained in a prison or other place of confinement to a residential treatment facility. Previously such persons could also be transferred to residential institutions. This amendment is consequential to the closure of all residential institutions from 1 July 2020.

Clause 135 amends section 167(1A)(a), (d) and (e) of the Disability Act 2006 so that where the Secretary issues a statement that a person has an intellectual disability under section 166, the treatment plan required to be prepared under subsection (1) must specify the treatment to be received in, leave arrangements from, and a transition process from, the residential treatment facility. Previously, the treatment plan also had to specify these matters if the person was to be detained in a residential institution. This amendment is consequential to the closure of all residential institutions by 1 July 2020.

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Clause 136 amends section 168(4) of the Disability Act 2006 so that upon a review of a treatment plan and security order of a security resident, VCAT must not confirm the security order or vary a treatment plan unless satisfied that the residential treatment facility can implement the treatment plan. Previously, VCAT also had this power with respect to residential institutions. This amendment is consequential to the closure of all residential institutions by 1 July 2020.

Clause 137 amends section 169(4) of the Disability Act 2006 so that upon an application or review of a treatment plan for a security resident, VCAT must not confirm or vary the treatment plan unless satisfied that the residential treatment facility can implement the treatment plan. Previously, VCAT also had this power with respect to residential institutions. This amendment is consequential to the closure of all residential institutions by 1 July 2020.

Clause 138 repeals sections 170, 171, 172, 173, 174 and 178 of the Disability Act 2006. These provisions relate to leave of absence, special leave and suspension of leave for a security resident from a residential institution, security conditions a security resident detained in a residential institution is subject to, apprehension of a security resident absent without leave from a residential institution and transfer of a security resident detained in a residential institution. The repeal of these provisions is consequential to the closure of all residential institutions by 1 July 2020.

Clause 139 amends section 176 of the Disability Act 2006 to omit references to residential institutions so that the person in charge of the residential treatment facility at which a resident has died is obliged to notify the Secretary to the Department of Justice and Community Safety. Previously the provision placed an obligation on the person in charge of both a residential treatment facility and residential institution to notify the Secretary to the Department of Justice and Community Safety. The amendments reflect the closure of residential institutions by 1 July 2020.

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Clause 140 amends section 177(1) of the Disability Act 2006 so that a security resident detained in a residential treatment facility may apply to VCAT for a recommendation that the security resident be transferred to a prison. Previously, a security resident detained in residential institutions also had this right. The amendment is consequential to reflect the closure of all residential institutions by 1 July 2020.

Clause 141 amends section 179 and the heading to section 179 of the Disability Act 2006 to remove the reference to residential institution so that the provision only specifies the notice requirements when a security resident is transferred to another residential treatment facility. Previously, the provision also specified the notice requirements where a security resident is transferred to another residential institution. The amendment reflects the closure of residential institutions by 1 July 2020.

Clause 142 amends section 180(1), (2)(c), (4), (7)(b) and (8) of the Disability Act 2006 so that the provision relates to the transfer of a forensic resident referred to in subsection (1) from prison to a residential treatment facility. Previously, the provision related to the transfer of forensic residents from prison to a residential treatment facility or residential institution. The amendment is consequential to reflect the closure of all residential institutions by 1 July 2020.

Clause 143 amends section 181 of the Disability Act 2006 so that a forensic resident is to be provided with services under the Disability Act 2006 in a residential treatment facility. Previously, forensic residents in a residential institution were also required to be provided with services under the Disability Act 2006. The amendment is consequential to the closure of all residential institutions by 1 July 2020.

Clause 144 inserts new section 242 into the Disability Act 2006 to provide that the premises known as the Long Term Residential Program is taken to be a residential treatment facility on and from 30 June 2020, all residents at the facility immediately prior to 30 June 2020 may continue to be detained at the facility for up to 12 months, and sections 156, 157 and 158 apply to that person despite not being the subject of an order referred to in section 152(2). Currently, this program is a residential institution. The provision is consequential to the repeal of all provisions regarding residential institutions and to ensure current

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persons detained at the facility may continue to be so detained until alternative arrangements may be made for them.

Subdivision 2—SDA related amendments

Clause 145 inserts and amends definitions in the Disability Act 2006.

Subclauses (1) and (2) substitute the definitions of SDA provider and SDA residency agreement to ensure they are defined consistently with the Residential Tenancies Act 1997, as amended by the Disability Services Safeguards Act 2018. This is to ensure consistency with terminology used under the Residential Tenancies Act 1997.

Subclause (3) updates the definition of NDIS and SDA enrolled dwelling to refer to the NDIS Act rather than the National Disability Insurance Scheme Act 2013 of the Commonwealth to reflect the new definition of NDIS Act inserted into the Disability Act 2006 by this Bill.

Subclause (4) updates the definition of NDIS participant's guardian and SDA resident's guardian to refer to the Guardianship and Administration Act 2019 which will repeal the Guardianship and Administration Act 1986 if passed and commenced.

Subdivision 3—Residential Tenancies Amendment Act 2018 related amendments

Clause 146 sets out the amendments required to the definition of SDA enrolled dwelling and sections 30A(3), 30A(4), 129(6), 131A(2) and 236(1)(b)(i) of the Disability Act 2006 to substitute references to "tenancy agreement" with "residential rental agreement". The amendments are to reflect changes to terminology in the Residential Tenancies Act 1997 as a consequence of the Residential Tenancies Amendment Act 2018.

Part 3—Amendment of Residential Tenancies Act 1997

Division 1—SDA residents—tenancy agreements

Clause 147 inserts new Subdivision 2A into Division 1 of Part 6 of the Residential Tenancies Act 1997, which contains new sections 234A and 234B.

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New section 234A outlines a process by which an SDA resident, the Director, the Public Advocate or the SDA resident's guardian or administrator can apply to the Tribunal for an order which—

terminates the existing tenancy agreement;

terminates the existing tenancy agreement and requires an SDA provider who is a landlord to enter a new tenancy agreement with the SDA resident and others specified in the application; or

if all the tenants are SDA residents, terminates the existing tenancy agreement and requires an SDA provider who is a landlord to enter into or establish an SDA residency agreement with each person who is a tenant under the existing tenancy agreement.

The grounds on which an order under section 234A may arise are where the SDA resident—

was coerced or deceived into entering the tenancy agreement;

did not receive an information statement as required under section 498D before entering the tenancy agreement;

did not receive an explanation of the information statement as required to under section 498E.

For the purposes of an order to terminate the existing tenancy agreement, the parties to the proceeding are—

the SDA resident as the applicant or the Director, the Public Advocate, the SDA resident's guardian or their administrator (if any) on their behalf;

the SDA provider;

any other party to the existing tenancy agreement;

any other person specified in the application.

The application may be made without the consent of the SDA provider or other parties to the agreement.

The Tribunal must hear an application within 3 business days or no later than the next available sitting day after the end of the 3 business day period.

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If an application is made under section 234A, any other action that could otherwise be taken in relation to the existing tenancy agreement is stayed until the Tribunal determines the outcome of the application, unless the Tribunal orders otherwise.

New section 234B establishes that, on an application under section 234A(1), the Tribunal may order the dismissal of the application. Or, if the Tribunal is satisfied that the SDA resident was coerced or deceived into entering a tenancy agreement, did not receive an information statement under section 498D or did not receive an explanation of the information statement under section 498E, the Tribunal may—

order the termination of the tenancy agreement; or

order the termination of the tenancy agreement and that the SDA provider enter into a new tenancy agreement; or

order the establishment of one or more SDA residency agreements.

Subclause (3) permits the Tribunal to adjourn the application to determine a termination date in consultation with the parties to the existing tenancy agreement or to allow the parties to enter into a new tenancy agreement or enter into, or establish one or more SDA residency agreements. If the parties are unable to enter into a new tenancy agreement or one or more SDA residency agreements, the Tribunal may direct the parties to enter into a new agreement or agreements on terms declared by the Tribunal.

Subclause (4) provides that when making an order, the Tribunal may have regard to any financial disadvantage suffered by the tenant or tenants and, regardless of any loss or damage suffered by the SDA provider, make an order that any bond paid be paid out by the Residential Tenancies Bond Authority to the tenant or tenants. The Tribunal may also revoke any compensation orders that have been issued against the tenant or tenants.

Subclause (5) provides that in determining an application under section 234A(1), the Tribunal may take into account the Director's guidelines.

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Upon commencement of section 240 of the Residential Tenancies Amendment Act 2018, Part 6 of the Residential Tenancies Act 1997, including sections 234A and 234B, will be repealed. Sections 234A and 234B will be superseded by new sections 91YA and 91YB, which are inserted by clause 215.

Clause 148 inserts new section 237(1)(e) and section 237(3A) in the Residential Tenancies Act 1997.

New section 237(1)(e) enables an SDA resident who is a tenant and who has been given a notice under new section 498DA of the Residential Tenancies Act 1997 that the SDA provider is no longer a registered NDIS provider or that the dwelling ceases to be an SDA enrolled dwelling, to give a reduced period of notice of intention to vacate in certain circumstances in accordance with section 237. The purpose of the amendment is to enable an NDIS participant to commence a new tenancy agreement, and direct their NDIS funding under that new tenancy agreement, in accordance with the reduced period outlined in section 237. A participant may not be able to direct NDIS funding to a provider who is no longer a registered provider.

New section 237(3A) gives a tenant to whom new section 237(1)(e) applies the right to give a landlord who is, or was, an SDA provider, a notice of intention to vacate a premises that is, or was, an SDA enrolled dwelling, specifying a termination date that is not less than 14 days after the date on which the notice is given.

Clause 149 inserts new subsection 486B(1)(f) to add a new function of the Director to maintain a list recording the details of SDA residency agreements the Director is notified of under section 498F(5).

Division 2—Amendment of Part 12A

Clause 150 sets out new definitions for inclusion in Part 12A of the Residential Tenancies Act 1997.

The definition of carer adopts the meaning used in the Carers Recognition Act 2012.

The definition of NDIS behaviour support plan adopts the meaning used in the Disability Act 2006.

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The definition of registered NDIS provider adopts the meaning used in the National Disability Insurance Scheme Act 2013 of the Commonwealth.

standard form is defined to mean the form prescribed for the purposes of section 498I, which sets out that an SDA residency agreement must be in the prescribed standard form.

The definition of SDA provider is amended and the definition of Supported Independent Living Provider is substituted to adopt the meanings used in the Disability Act 2006.

Clause 151 amends section 498C(2) of the Residential Tenancies Act 1997 to clarify that Part 12A does not apply to any and all matters in relation to a tenancy agreement entered into by SDA providers and SDA residents, other than those matters set out in Division 2 to the extent specified in that Division.

Clause 152 amends the heading of Division 2 of Part 12A of the Residential Tenancies Act 1997 to provide that Division 2 also applies to notices.

Clause 153 amends section 498D(1) and (3) of the Residential Tenancies Act 1997 to require that the information statement to be given to the SDA resident by the SDA provider before entering into a tenancy or SDA residency agreement be in a form approved by the Director instead of being prescribed in regulations.

Subclauses (2) and (4) increase the penalty units in section 489D(1) and (3) for failing to provide an information statement to an SDA resident from 60 penalty units to 300 penalty units for a natural person and from 300 penalty units to 750 penalty units for a body corporate.

Clause 154 inserts new section 498DA into the Residential Tenancies Act 1997. New section 498DA(1) sets out that if the registration of a person as a registered provider under the NDIS is revoked, the person must give any SDA resident to whom the person is providing an SDA enrolled dwelling written notice. This notice must be provided within 5 days of the registration being revoked, specify that the registration has been revoked and specify the date of the revocation. If the notice is in relation to an SDA enrolled dwelling under a tenancy agreement, the written notice must specify that the SDA resident may give the landlord a reduced

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period of notice of intention to vacate under section 237. If the notice is in relation to an SDA enrolled dwelling under an SDA residency agreement, the written notice must specify that the agreement is terminated 90 days after the date of the person's registration under the NDIS was revoked. The penalty assigned to new section 498DA(1) is 25 penalty units.

New section 498DA(2) provides that if a dwelling ceases to be an SDA enrolled dwelling, an SDA provider must give the SDA resident written notice within 5 days of the cessation of the dwelling's enrolment. This written notice must specify—

that the dwelling is no longer enrolled; and

the date it ceased to be an SDA enrolled dwelling; and

in the case of a former SDA enrolled dwelling being provided under a tenancy agreement, that the SDA resident may give a reduced period of notice of intention to vacate under section 237; and

in the case of a former SDA enrolled dwelling being provided under an SDA residency agreement, that the SDA residency agreement is terminated 90 days after the day the SDA enrolled dwelling ceased to be enrolled.

The penalty assigned to new section 498DA(2) is 25 penalty units.

Clause 155 amends section 498E(4) of the Residential Tenancies Act 1997 to make it mandatory for an SDA provider to give a copy of a notice or information provided to persons set out in section 498E(4) in circumstances where an SDA resident would benefit from support or requires support to understand the notice or information.

Clause 156 inserts new section 498EA in the Residential Tenancies Act 1997 to mandate that where an SDA provider is a party to a proceeding for which an order of the Tribunal is made or a direction is given under that Act, and the SDA resident is not represented by their guardian, their administrator, their carer, a litigation guardian, a lawyer or a person they have chosen to represent them, the SDA provider must explain the order or direction in the language, mode of communication and terms in which the SDA resident is most likely to understand.

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The purpose of the amendment is to ensure that SDA residents receive an explanation of an order or direction of the Tribunal in the same manner as they would receive an explanation of notices or information provided under Part 12A, as required under section 498E.

If the SDA provider is not a party to a proceeding for which an order of the Tribunal is made or a direction is given under the Act, the relevant person who is a party must explain the order or direction to the SDA resident in the language, mode of communication and terms in which the SDA resident is most likely to understand. Relevant persons include an agent of the SDA provider, a mortgagee of the SDA enrolled dwelling, and the SDA enrolled dwelling owner.

The explanation must, if reasonable, be given both orally and in writing. If it appears that an SDA resident would benefit from support or requires support to understand the order or direction, the SDA provider or relevant party must—

use reasonable endeavours to convey the information or contents of the order or direction to the SDA resident in the language, mode of communication or terms which the resident is most likely to understand; and

give a copy of the order or direction to a family member, carer, guardian, advocate or other person chosen by the SDA resident. If no person is chosen, the SDA provider or relevant person must provide a copy to a person who the SDA provider or relevant considers can assist. This person must not be an employee or representative of the SDA provider or relevant person.

Clause 157 inserts new section 498F(5) and (6) in the Residential Tenancies Act 1997.

New section 489F(5) requires an SDA provider to give written notice to the Director when an SDA residency agreement is entered into under section 498F(1)(a) or that is taken to be established under section 498F(3). The SDA provider must give written notice to the Director within 14 days of the SDA residency agreement being established or entered into.

The penalty assigned to this subsection is 60 penalty units.

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New section 489F(6) provides that the notification under section 498F(5) must include the following details—

the name and contact details of the SDA provider party to the agreement;

the address of the SDA enrolled dwelling specified in the SDA residency agreement; and

the term of the SDA residency agreement.

Clause 158 amends section 498G(3) of the Residential Tenancies Act 1997 to make it mandatory for an SDA provider to give a copy of a notice of the SDA residency agreement and any explanation of the agreement to a family member, carer, advocate or other person chosen by the SDA resident if it appears that an SDA resident would benefit from support or requires support to read and understand an explanation of an SDA residency agreement. If there is no person chosen by the resident, the SDA provider must give a copy to a person who the provider considers can assist the SDA resident and is not employed by, or is a representative of, the SDA provider.

Clause 159 increases the penalty under section 498H of the Residential Tenancies Act 1997 for not providing a copy of the SDA residency agreement to the SDA resident and the SDA resident's guardian or SDA administrator, if any, from 10 penalty units to 25 penalty units.

Clause 160 increases the penalty under section 498I(2) of the Residential Tenancies Act 1997 for not using the prescribed standard form of agreement from 10 penalty units to 25 penalty units.

Clause 161 substitutes a new section 498L(3) of the Residential Tenancies Act 1997 to provide that a term of an SDA residency agreement must not be declared invalid for any harsh or unconscionable terms if it is required by or under the National Disability Insurance Scheme Act 2013 of the Commonwealth or any regulations, rules or instruments made under that Act, or it is required by any prescribed Act, regulations, rules or instruments, or it is in the prescribed standard form.

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Clause 162 inserts new Division 3A into Part 12A of the Residential Tenancies Act 1997 which contains new sections 498LA, 498LB and 498LC.

New section 498LA provides that an SDA provider or their agent must not use personal information disclosed in an application form used to apply to enter into an SDA residency agreement unless it is used for the following purposes—

to determine whether the applicant is or will be an SDA resident,

to determine whether the SDA enrolled dwelling meets the needs of the applicant, or

if the SDA enrolled dwelling is a shared living environment, to assess the applicant's compatibility with SDA residents already residing in the SDA enrolled dwelling or other applicants applying to enter into an SDA residency agreement in respect of the SDA enrolled dwelling.

New section 498LB provides that an SDA provider must disclose certain information to the SDA recipient before entering into an SDA residency agreement—

if the SDA provider has engaged an agent to sell the SDA enrolled dwelling or prepared a contract of sale, that there is a proposal to sell the SDA enrolled dwelling;

if a mortgagee has commenced a proceeding to enforce a mortgage over the SDA enrolled dwelling, that a mortgagee is taking action for possession of the SDA enrolled dwelling;

if the SDA provider is not the owner of the SDA enrolled dwelling, that the SDA provider has a right to let the SDA enrolled dwelling;

if the SDA enrolled dwelling is supplied with electricity from an embedded electricity network, the prescribed details of the operator of the embedded electricity network;

if the SDA provider is not the owner of the SDA enrolled dwelling and the owner has engaged an agent

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to sell the SDA enrolled dwelling or prepared a contract of sale, that there is a proposal to sell the dwelling;

any other prescribed information in relation to the SDA enrolled dwelling.

New section 498LC applies to an SDA provider or their agent who is not acting in trade or commerce in entering into an SDA residency agreement. An SDA provider or that person's agent must not induce a person to enter into an SDA residency agreement by engaging in conduct that is misleading or deceptive, that is likely to mislead or deceive, or by making a false or misleading representation concerning any of the following—

the SDA provider's interest in the land;

the rent payable under the agreement;

the location of the SDA enrolled dwelling to be let under the agreement;

the characteristics of the SDA enrolled dwelling to be let under the agreement;

the use to which the SDA enrolled dwelling to be let under the agreement is capable of being put or may lawfully be put;

the existence or availability of facilities associated with the SDA enrolled dwelling to be let under the agreement.

The penalty assigned to section 498LC is 60 penalty units in the case of a natural person, and 300 penalty units in the case of a body corporate. New section 498LC does not limit the operation of the Australian Consumer Law.

Clause 163 substitutes section 498M(c) and (f) of the Residential Tenancies Act 1997 and inserts new sections 498M(ca), 498M(2) and 498M(3).

Substituted section 498M(c) and new section 498M(ca) separate one duty of the SDA provider under section 498M(c) into 2 separate duties. The 2 new duties are to not unreasonably interfere with an SDA resident's right to privacy, and to install fixtures required by the SDA resident to assist their daily living or proper use and enjoyment of the SDA enrolled dwelling.

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Substituted section 498M(f) imposes a duty on the SDA provider to take reasonable steps to ensure that any repairs or renovations are carried out by a suitably qualified person and are completed in a timely manner.

New section 498M(2) provides that an SDA provider who provides an SDA enrolled dwelling must not unreasonably refuse to give consent to the SDA resident's request to keep a pet in the dwelling.

New section 498M(3) sets out the grounds on which an SDA provider may reasonably refuse to give consent to an SDA resident's request to keep a pet—

if another SDA resident living in the same SDA enrolled dwelling under an SDA residency agreement does not consent and has reasonable grounds for not consenting; or

if the pet would create a health and safety hazard were it kept at the SDA enrolled dwelling.

The purpose of new section 498M(2) and (3) is to adopt amendments regarding pet ownership for tenants as introduced under the Residential Tenancies Amendment Act 2018, and adapting the regime to take into account that SDA enrolled dwellings may include more than one SDA resident, each with their own individual SDA residency agreement, who may object on reasonable grounds to having a pet in the home.

Clause 163(2) inserts a note at the end of section 498M(3) stating that section 54 of the Equal Opportunity Act 2010 relates to the provision of accommodation to a person with a disability who has an assistance dog. This is to clarify that an SDA resident would not have to seek permission to have an assistance dog.

Clause 164 amends section 498N(1)(c) and (2)(d) of the Residential Tenancies Act 1997 to omit the word "intentionally" as new section 498N(3) (inserted by subclause 3) introduces a specified set of factors which, if existing, mean that the SDA resident does not owe or has not breached the duty, as applicable.

Subclause (2) inserts new section 498N(2)(f) to provide a new duty that the SDA resident must not keep a pet without obtaining the consent of the SDA provider.

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Subclause (3) inserts new section 498N(3) which provides that an SDA resident does not owe a duty under section 498N(1)(c) to contribute to the cost of repairing damage to the dwelling as notified under section 498N(1)(b), and does not breach a duty under section 498N(2)(d) to not intentionally damage or destroy the dwelling if one or more of the following matters are considered to have significantly contributed to the damage or destruction—

fair wear and tear;

accidental damage;

the reasonable use of the dwelling;

the reasonable use of any aids, equipment, fixtures and fittings used in the dwelling;

the act or omission of someone who is not the SDA resident;

any behaviour arising from the SDA resident's disability including behaviour in response to circumstances aggravating to the SDA resident's disability or emotional wellbeing;

a failure by anyone to implement or comply with an SDA resident's support plan or NDIS behaviour support plan;

an unauthorised use of a restrictive practice within the meaning of the Disability Act 2006;

circumstances suggesting that the SDA resident has been subjected to abuse or neglect.

The purpose of new section 498N(3) is to provide that an SDA resident does not owe, or breach, a duty (as the case may be) as a result of actions or omissions arising because of the SDA resident's disability, because the SDA resident has not received supports, or because of abuse or neglect.

Clause 165 inserts new section 498O(2)(ab) in the Residential Tenancies Act 1997 to include an SDA resident's administrator as a "chosen person" under Division 5.

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Clause 166 inserts new section 498P(3) in the Residential Tenancies Act 1997 to provide that in determining an application to the Tribunal for urgent repairs, the Tribunal must consider the Director's guidelines issued under section 486(fa).

Clause 167 inserts new section 498R(4) in the Residential Tenancies Act 1997 to stipulate that the Tribunal must hear an application for the following orders within 7 days—

an order under section 498R(1) to require the SDA provider to carry out non-urgent repairs; or

an order under 498R(3) to require the SDA provider to carry out specified repairs without the written report required to be given by the Director to the SDA resident and their chosen person if applied for under section 498Q, if the SDA resident or their chosen person has not received that report within 90 days of applying for that report.

Clause 168 substitutes section 498S(1) of the Residential Tenancies Act 1997 to provide that the Tribunal may make an order that the SDA provider carry out specified repairs and use a suitably qualified person to carry out those repairs if the Tribunal is satisfied that an SDA provider is in breach of the duty to maintain the SDA enrolled dwelling in good repair.

Subclause (2) amends section 498S(2) of the Residential Tenancies Act 1997 to make clear that any order requiring the SDA provider to carry out specified repairs must specify the repairs and the time within which the repairs must be carried out.

Clause 169 substitutes section 498U(b) of the Residential Tenancies Act 1997 to provide that a right of entry in respect of an SDA enrolled dwelling may be exercised at any time between 8 a.m. and 6 p.m. on any day (except a public holiday) as set out in the following circumstances applying to notice given to the SDA resident or SDA residents in accordance with section 498X—

for the purpose of entry under section 498V(1)(a), where a notice to vacate or notice of intention to vacate had been given and entry is required to show the SDA enrolled dwelling to a prospective party to an SDA

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residency agreement or tenancy agreement, at least 48 hours notice must be given;

for the purpose of entry under section 498V(1)(b), where the SDA enrolled dwelling is to be sold or used as security for a loan and entry is required to show the dwelling to a prospective buyer or lender, at least 48 hours notice must be given;

for the purpose of entry under section 498V(1)(c), where entry is required to enable the SDA provider to carry out a duty under the Residential Tenancies Act 1997 or any other Act, at least 24 hours notice must be given;

for the purpose of entry under section 498V(1)(d), where entry is required entry is required for valuation purposes, at least 7 days notice must be given;

for the purpose of entry under section 498V(1)(e), where entry is required to enable inspection of the SDA enrolled dwelling and entry for that purpose has not been made within the last 6 months, at least 7 days notice must be given;

for the purpose of entry under section 498V(1)(f), where entry is required to undertake maintenance or repairs or for the purpose of maintenance or repairs, at least 24 hours notice must be given.

Clause 170 amends section 498V(2)(a) of the Residential Tenancies Act 1997 to provide that an SDA provider may only enter an SDA enrolled dwelling occupied by multiple SDA residents without giving notice of entry if all the SDA residents agree to the entry at the time entry is sought.

Subclause (2) substitutes section 498V(3) of the Residential Tenancies Act 1997 to stipulate that a right of entry under section 498V(1)(a) for the purpose of showing the SDA enrolled dwelling to a prospective party to an SDA residency agreement or tenancy agreement may only be exercised—

in the period within 21 days before the termination date specified in the notice to vacate or notice of intention to vacate; and

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up to twice a week, unless agreed with the SDA resident or all SDA residents; and

for a period of no longer than one hour, unless a longer period is agreed with the SDA resident or all SDA residents.

Subclause (3) inserts new section 498V(3A) in the Residential Tenancies Act 1997 to provide that a right of entry to an SDA enrolled dwelling exercised under subsection 498V(1)(b) for the purpose of showing the dwelling to a prospective buyer, the right of entry may only be exercised—

if the SDA provider has given the SDA resident or all the SDA residents a notice of intention to sell in the approved form at least 14 days before entry is proposed; and

if the SDA provider has made all reasonable efforts to agree with the SDA resident or all SDA residents on days and times for inspection; and

up to twice a week, unless otherwise agreed with the SDA resident or all SDA residents; and

for a period of no longer than one hour, unless a longer period is agreed with the SDA resident or all SDA residents.

New section 498V(3A)(b) and new section 498V(3B) of the Residential Tenancies Act 1997 provide that where a right of entry is exercised under section 498V(1)(b) to show an SDA enrolled dwelling to a prospective buyer or lender, the SDA resident or SDA residents at the SDA enrolled dwelling are entitled to the prescribed compensation for each sales inspection.

Subclause (4) inserts new section 498V(5) in the Residential Tenancies Act 1997 to provide that for the purpose of section 498V(2)(d), where an SDA provider enters an SDA enrolled dwelling without notice because the provider believes on reasonable grounds that the SDA resident has abandoned the dwelling, and where there is more than one SDA resident occupying the dwelling, the SDA provider must not enter those parts of the dwelling exclusively occupied by other SDA residents.

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Clause 171 amends section 498W(b) of the Residential Tenancies Act 1997 to provide that, where a person is exercising a right of entry under Division 6 of Part 12A and there are multiple SDA residents in the SDA enrolled dwelling, the right of entry cannot be exercised without the consent of all the SDA residents.

Clause 172 inserts new section 498ZB(1A) in the Residential Tenancies Act 1997 to set out that a notice of proposed rent increase must include the amount of the increase, the method by which the increase was calculated and a statement informing the SDA resident of their right under section 498ZG to apply to the Director to investigate and report on the proposed rent within 30 days after the notice is given to the Director to investigate and report on the proposed rent.

Clause 173 inserts a penalty of 60 penalty units for a breach of section 498ZC of the Residential Tenancies Act 1997, which stipulates that an SDA provider must not require an SDA resident to pay the rent more than 30 days in advance.

Clause 174 amends section 498ZD of the Residential Tenancies Act 1997 to provide that subject to section 498ZD, the rent under an SDA residency agreement is payable in the manner (if any) specified in the agreement.

Subclause (2) inserts new section 498ZD(2)–(6) regarding the payment of rent—

New section 498ZD(2) provides that an SDA provider or their agent must not require an SDA resident to pay rent by a cheque or other negotiable instrument that is post-dated. The penalty for contravention of this section is 60 penalty units.

New section 498ZD(3) provides that an SDA provider or their agent must ensure that a rent payment method that incurs no additional costs, other than bank fees or account fees payable on the SDA resident's bank account, is reasonably available to the resident. The penalty for contravention of this section is 60 penalty units.

New section 498ZD(4) provides that an SDA provider or their agent must permit the SDA resident to pay the

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rent by Centrepay or any other prescribed payment method.

New section 498ZD(5) provides that the SDA provider and SDA resident may change the manner in which rent is payable under the SDA residency agreement.

New section 498ZD(6) provides that the SDA provider or their agent must give the SDA resident information about any costs that the resident may incur by using a particular payment method before the resident consents to use that payment method.

Clause 175 increases the penalty for offences in section 498ZE of the Residential Tenancies Act 1997 from 10 penalty units to 25 penalty units. The offences are in respect of the following circumstances where a person receives payment for rent from or on behalf of an SDA resident—

for not immediately giving a written receipt for rent or, if the payment is not made in person and a receipt is requested at the time of payment, within 5 days of the receipt of payment, pursuant to section 498ZE(1) of the Residential Tenancies Act 1997;

if a written receipt is not required to be given under section 498ZE(1), for not keeping a record of the payment of rent until the earlier of the end of 12 months after receiving the payment or, if requested by the SDA resident or their guardian or administrator, providing a copy of that record, pursuant to section 498ZE(2); and

if an SDA resident or an SDA resident's guardian or administrator requests a copy of a record before the end of 12 months after making the payment, for not providing a copy of that record to the SDA resident and the SDA resident's guardian or administrator within 5 business days after receiving the request.

Clause 176 increases the penalty for contravention of section 498ZF of the Residential Tenancies Act 1997 from 20 penalty units to 60 penalty units. Section 498ZF provides that a person must not

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take or dispose of an SDA resident's goods on account of any rent owing by the SDA resident.

Clause 177 increases the penalties under section 498ZL of the Residential Tenancies Act 1997 from 20 units to 60 penalty units for the following offences—

demanding or receiving from an SDA resident any bond in relation to the SDA residency agreement pursuant to section 498ZL(1);

demanding or receiving from an SDA resident any guarantee for the performance of the SDA resident's duties under the SDA residency agreement pursuant to section 498ZL(2);

demanding or receiving from an SDA resident a charge or indemnity for a charge in relation to the making, continuation or renewal of an SDA residency agreement that is a premium, bonus, commission or key money pursuant to section 498ZL(3);

demanding or receiving from an SDA resident under a proposed SDA residency agreement a charge in relation to the inspection of the SDA enrolled dwelling by an SDA resident pursuant to section 498ZL(4); and

demanding or receiving from an SDA resident a charge or indemnity for a charge in relation to the first issue of a rent payment card under an SDA residency agreement or the establishment or use of direct debit facilities for payment of rent under an SDA residency agreement pursuant to section 498ZL(5).

Subclause (5) amends section 498ZL(5)(b) to provide that a person must not demand or receive from an SDA resident a charge or indemnity for a charge in relation to the establishment or use of any electronic facility for payment of rent.

Clause 178 amends section 498ZM and inserts new section 498ZM(2) in the Residential Tenancies Act 1997. Section 498ZM is amended to provide that an SDA provider is liable for all rates, taxes or charges payable under any Act other than charges payable by the SDA resident under Part 12A of the Residential Tenancies Act 1997.

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New section 498ZM(2) provides that if an SDA resident has been charged for excessive usage of a service at the SDA enrolled dwelling caused by a fault in infrastructure or any fixtures or buildings at or connected to the dwelling, the SDA provider is liable for that part of the charge that is additional to an amount of ordinary usage by the SDA resident.

Clause 179 increases the penalty for section 498ZN of the Residential Tenancies Act 1997 for an SDA provider seeking payment or reimbursement for a cost or charge, or specifying a cost or charge for utilities, that is more than the amount that the relevant utility supplier would have charged for the supply or use of electricity, water, bottled gas or oil. The penalty for the contravention of this offence increases from 20 penalty units to 60 penalty units.

Clause 180 amends the definition of duty provision in section 498ZO of the Residential Tenancies Act 1997 for the purposes of Division 9 of Part 12A by substituting new paragraph (a) outlining the subsections under section 498M and amending paragraph (b) to add paragraph (f) of section 498N as a duty provision.

Subclause (2) inserts a definition of breach of duty notice into section 498ZO of the Residential Tenancies Act 1997 to mean a notice served under section 498ZP.

Clause 181 omits the word "intentionally" from section 498ZP(2) of the Residential Tenancies Act 1997 as new section 498ZP(2A) introduces a specified set of factors which, if existing, mean that the SDA resident does not breach the duty.

Subclause (2) inserts new section 498ZP(2A) in the Residential Tenancies Act 1997 to provide that an SDA resident does not breach a duty provision if any of the following have significantly contributed to the breach of the duty provision—

in the case of damage to, or destruction of, an SDA enrolled dwelling, fair wear and tear;

in the case of damage to, or destruction of, an SDA enrolled dwelling, accidental damage;

the reasonable use of the SDA enrolled dwelling;

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the reasonable use of any aids, equipment, fixtures and fittings used in the SDA enrolled dwelling;

the act or omission of a person who is not the SDA resident;

any behaviour arising from the SDA resident's disability including circumstances aggravating to the SDA resident's disability or emotional wellbeing;

a failure by a person to implement or comply with the SDA resident's support plan;

the unauthorised use of a restrictive practice within the meaning of the Disability Act 2006;


The purpose of new section 498ZP(2A) is to provide that an SDA resident does not breach a duty as a result of actions or omissions arising because of the SDA resident's disability, because the SDA resident has not received supports, or because of abuse or neglect.

Clause 182 Subclause (1) amends the heading of section 498ZR of the Residential Tenancies Act 1997 to "Matters to be considered by Tribunal".

Subclause (2) repeals section 498ZR(a) of the Residential Tenancies Act 1997.

Subclause (3) inserts new section 498ZR(2) at the end of section 498ZR of the Residential Tenancies Act 1997 to provide that when hearing an application under section 498ZQ for a compensation or compliance order in respect of a breach of duty notice given to an SDA resident, the Tribunal must consider whether any of the following significantly contributed to the breach of duty in respect of which the claim was made—

in the case of damage to, or destruction of, property fair wear and tear;

in the case of damage to, or destruction of, property, accidental damage;


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a failure by a person to implement or comply with the SDA resident's support plan or NDIS behaviour support plan;



The purpose of new section 498ZR(2) is to provide that the Tribunal must consider whether an SDA resident's actions or omissions arose because of the SDA resident's disability, because the SDA resident has not received supports, or because of abuse or neglect.

Clause 183 inserts a new section 498ZS(2A) in the Residential Tenancies Act 1997 to provide that in the case of an application under section 498ZQ for a compensation or compliance order, if after considering the matters specified in section 498ZR(2), the Tribunal is not satisfied that an SDA provider was entitled to give the breach of duty notice, the Tribunal must dismiss the application and declare the notice to be invalid.

Clause 184 inserts new section 498ZV(1)(ca) in the Residential Tenancies Act 1997 to provide that a notice to vacate may be given if the SDA resident can no longer be appropriately supported in the SDA enrolled dwelling.

Subclause (1)(b) substitutes subsection 498ZV(1)(e) to omit "intentionally" and inserts "serious" as the threshold for damage or destruction leading to a notice of temporary relocation.

Subclause (1)(c) amends section 498ZV(1)(i) to provide that an SDA provider may give an SDA resident a notice of temporary relocation if the SDA provider intends to renovate or reconstruct

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the SDA enrolled dwelling immediately after the notice of temporary relocation has effect.

Subclause (2) inserts new section 498ZV(2A) in the Residential Tenancies Act 1997 to provide that an SDA provider must not give a notice of temporary relocation on a ground specified in subsection (1)(e), in the case where the SDA resident has caused serious damage or destroyed any part of the SDA enrolled dwelling, if any of the following are considered to have significantly contributed to the serious damage or destruction caused—

fair wear and tear;

accidental damage;







circumstances suggesting that the SDA resident has been subjected to abuse or neglect.".

The purpose of new section 498ZV(2A) is to provide that acts or omissions due to the SDA resident's disability, the failure to provide supports, or the SDA resident being subject to abuse or neglect will not lead to a notice of temporary relocation under section 498ZV.

Subclause (3) amends section 498ZV(4) of the Residential Tenancies Act 1997 to provide that the SDA provider must

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notify the Director in addition to the Chief Executive Officer of the NDIA and the Public Advocate of the details of a notice of temporary relocation within 24 hours of the notice being given to an SDA recipient.

Subclause (4) increases the penalty amount under section 498ZV(4), for failing to notify the Chief Executive Officer of the NDIA, the Public Advocate and Director of the details of a notice of temporary relocation within 24 hours of the notice being given, from 20 penalty units to 60 penalty units.

Subclause (5) amends section 498ZV(5) of the Residential Tenancies Act 1997 to provide that the SDA provider must notify the Director in addition to the Public Advocate of the details of a notice of temporary relocation within 24 hours of the notice being given to a CoS supported accommodation client.

Subclause (6) increases the penalty amount under section 498ZV(5) of the Residential Tenancies Act 1997, for failing to notify the Public Advocate of the details of a notice of temporary relocation within 24 hours of the notice being given to a CoS supported accommodation client, from 20 penalty units to 60 penalty units.

Subclause (7) amends section 498ZV(6) of the Residential Tenancies Act 1997 to provide that if a notice of temporary relocation is given on the grounds specified in subsections (1)(a)–(f), the SDA provider must take reasonable steps to notify the SDA resident's Supported Independent Living provider as soon as possible.

Subclause (8) amends section 498ZV(7) of the Residential Tenancies Act 1997 to provide that alternative accommodation used for temporary relocation must be "suitable".

Subclause (9) amends section 498ZV(9)(b) of the Residential Tenancies Act 1997 to substitute the word "respite" with "short-term accommodation".

Clause 185 substitutes paragraph 498ZW(b)(ii) of the Residential Tenancies Act 1997 to provide that an SDA residency agreement is terminated on the earliest of—

if a possession order is made, at the end of the day before the day on which the possession of the SDA

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enrolled dwelling is delivered up to the SDA provider; or

the day specified in a possession order made under section 498ZZH in relation to the notice to vacate as the day by which the SDA resident must vacate the SDA enrolled dwelling.

Subclause (2) substitutes section 498ZW(g) of the Residential Tenancies Act 1997 to provide that an SDA residency agreement is terminated if the SDA resident is deemed to have abandoned the SDA enrolled dwelling under section 498ZWA.

Subclause (3) repeals section 498ZW(h) and (i) of the Residential Tenancies Act 1997 with the effect that an SDA residency agreement is not terminated if the SDA resident moves to another principal place of residence without giving notice of intention to vacate to the SDA provider or if the SDA resident becomes subject to an order of a court or tribunal which prevents the SDA resident from residing in the SDA enrolled dwelling for a period of more than 90 days.

Subclause (4) inserts new section 498ZW(2)–(5) into the Residential Tenancies Act 1997 to provide that if an SDA resident wishes to terminate an SDA residency agreement under section 498ZW(1)(j) because of a contravention of section 498D(1), where an SDA provider has not given the SDA resident an information statement in the form required by the Director, the SDA resident must give the provider a notice of intention to terminate. The notice must be in writing and specify the date on which the SDA resident intends to terminate the agreement. The notice may be given in writing on behalf of the SDA resident by the SDA resident's guardian or SDA resident's administrator. The SDA provider must notify the Public Advocate and the Director within 24 hours of receipt of the notice. If the notice was given by the SDA recipient, the SDA provider must also notify the Chief Executive Officer of the NDIA and the SDA resident's guardian or SDA resident's administrator within 24 hours.

Clause 186 inserts new section 498ZWA into the Residential Tenancies Act 1997 to provide that if an SDA provider believes that an SDA resident has abandoned an SDA enrolled dwelling, the SDA provider may apply to the Tribunal for an order declaring that the SDA resident has abandoned it.

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The application must be heard by the Tribunal within 5 business days after the application is made.

The Tribunal may declare that the SDA enrolled dwelling was abandoned by the SDA resident on a specified day, and the resident is deemed to have abandoned the dwelling on that specified day.

Clause 187 substitutes section 498ZX(1)(e) and (f) of the Residential Tenancies Act 1997 to provide that a notice to vacate may be given on the ground that the SDA resident can no longer be appropriately supported in the SDA enrolled dwelling. The existing section 498ZX(1)(e) permitted "[a]n SDA provider to give an SDA resident a written notice to vacate an SDA enrolled dwelling if… it is for the SDA resident's safety or wellbeing". This was removed as it is considered that this was not sufficient grounds for giving a notice to vacate.

Section 498ZX(1)(f) previously provided that a notice to vacate could be given if the SDA resident has intentionally damaged or destroyed any part of the SDA enrolled dwelling. Subclause (1) substitutes section 498ZX(1)(f) to omit "intentionally" and insert "serious" as the threshold for damage or destruction leading to a notice to vacate.

Subclause (2) amends section 498ZX(1)(h) and inserts new subsection 498ZX(1)(ha) to provide that a notice to vacate may be given on the ground that the SDA provider intends to demolish the SDA dwelling after the termination date, has obtained all necessary permits and consents to carry out the work, and the work cannot be properly carried out unless the SDA resident vacates the SDA enrolled dwelling.

Subclause (3) inserts a note at the foot of section 498ZX(1)(h) referencing new section 498ZZZPA.

Subclause (4) repeals section 498ZX(1)(i) and (j) with the effect that an SDA provider may not give a notice to vacate to an SDA resident if specialist disability accommodation will no longer be provided at the dwelling or if the premises is no longer suitable for the provision of specialist disability accommodation.

Subclause (5) inserts new sections 498ZX(4A) and 498ZX(4B). Section 498ZX(4A) provides that an SDA provider must not give an SDA resident a notice to vacate on a ground specified in subsection (1)(f) or (1)(l), in relation to damage or destruction of

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the dwelling or a failure to comply with a compensation and compliance order, if any of the following have significantly contributed to the serious damage or destruction caused, or the failure to comply with an order—

fair wear and tear;

accidental damage;








The purpose of new section 498ZX(4A) is to provide that acts or omissions due to the SDA resident's disability, the failure to provide supports, or the SDA resident being subject to abuse or neglect, will not lead to a notice to vacate under 498ZX.

New section 498ZX(4B) stipulates that an SDA provider must not give an SDA resident a notice to vacate under subsection 498ZX(1)(l) for failing to comply with a compliance or compensation order under section 498ZS if the breach of duty notice is for keeping a pet without obtaining the consent of the SDA provider pursuant to subsection 498N(2)(f).

Subclause (6) inserts new section 498ZX(6)(ab) and 498ZX(6)(ac). New subsection (6)(ab) provides that a notice to vacate must specify that the SDA resident may apply to the Tribunal under section 498ZZC for a review of the notice within 90 days

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of issue of the notice. New subsection (6)(ac) provides that if a notice to vacate is given under section 498ZX(1)(h) for the repair, renovation or reconstruction of the SDA enrolled dwelling, or under section 498ZX(1)(k) where the dwelling is to be sold or offered for sale with vacant possession, the notice must be accompanied by documentary evidence, as approved by the Director from time to time, which supports the reasons for giving the notice.

Subclause (7) amends section 498ZX(7) to stipulate that the SDA provider must notify the Director in addition to the Chief Executive Officer of the NDIA and the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to an SDA recipient.

Subclause (8) increases the penalty amount under section 498ZX(7), for failing to notify the Chief Executive Officer of the NDIA and the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to an SDA recipient, from 20 penalty units to 60 penalty units.

Subclause (9) amends section 498ZX(8) to stipulate that the SDA provider must notify the Director in addition to the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to a CoS supported accommodation client.

Subclause (10) increases the penalty amount under section 498ZX(8), for failing to notify the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to a CoS supported accommodation client, from 20 penalty units to 60 penalty units.

Subclause (11) amends section 498ZX(9) to substitute the words "before the notice to vacate expires, to provide an opportunity for the SDA resident's support plan to be reviewed" with the words "as soon as possible" to clarify the time in which an SDA provider must take reasonable steps to notify an SDA resident's Supported Independent Living provider of a notice to vacate.

Clause 188 inserts new section 498ZZA(4)(d) into the Residential Tenancies Act 1997 to provide that the SDA provider must notify the Director of the details of a notice of intention to vacate

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given under this section within 24 hours of the notice being received by the SDA provider.

Clause 189 inserts new section 498ZZB(4) into the Residential Tenancies Act 1997 to provide that if an SDA provider withdraws a notice of temporary relocation or a notice to vacate, or an SDA resident withdraws a notice of intention to vacate, the SDA provider must give details of that notice of withdrawal to the Director within 14 days after the notice is given.

Clause 190 inserts new section 498ZZCA into the Residential Tenancies Act 1997. New section 498ZZCA(1) provides that if an SDA provider under an SDA residency agreement is not the owner of the SDA enrolled dwelling to which the agreement relates, the owner may exercise a right of the SDA provider—

to give the SDA resident a notice to vacate the SDA enrolled dwelling; or

to recover possession of the SDA enrolled dwelling; or

to give a breach of duty notice that applies to the SDA residency agreement.

New section 498ZZCA(2) provides that a notice to vacate given in accordance with section 498ZZCA(1) does not have effect unless it specifies a termination date on or after the day on which the SDA provider's interest in the premises ends.

New section 498ZZCA(3) provides that if the owner exercises a right under new section 498ZZCA(1) in relation to an SDA residency agreement, Divisions 2, 9, 10, 11 and 13 of Part 12A of the Residential Tenancies Act 1997 have effect as if a reference to an SDA provider under an SDA residency agreement included a reference to the owner.

Clause 191 amends section 498ZZD(3) of the Residential Tenancies Act 1997 to provide that a mortgagee entitled to possession of an SDA enrolled dwelling must notify the Director in addition to the Chief Executive Officer of the NDIA and the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to an SDA recipient.

Subclause (2) increases the penalty amount for the offence in section 498ZZD(3) from 20 penalty units to 60 penalty units.

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Subclause (3) amends section 498ZZD(4) to stipulate that the mortgagee must notify the Director in addition to the Public Advocate of the details of a notice to vacate within 24 hours of the notice being given to a CoS supported accommodation client.

Subclause (4) increases the penalty amount for contravention of the offence in section 498ZZD(4) from 20 penalty units to 60 penalty units.

Clause 192 inserts new section 498ZZF(2) into the Residential Tenancies Act 1997 to require that an application by a mortgagee of an SDA enrolled dwelling for a possession order for the dwelling must be accompanied a copy of any court order showing the mortgagee's entitlement to possession and to exercise a power of sale.

Clause 193 inserts new section 498ZZH(1)(c) and (4)(c) into the Residential Tenancies Act 1997 to require an additional matter which the Tribunal must be satisfied of before making a possession order on the application by an SDA provider pursuant to section 498ZZE(1) or section 498ZZE(3). The Tribunal must consider, in the circumstances of the particular application, if it is reasonable and proportionate to make the possession order in line with the guidance provide by new section 498ZZHA.

Subclause (2) inserts new section 498ZZH(1A) to require that the Tribunal must have regard to the Director's guidelines when making a possession order under section 498ZZE(1).

Clause 194 inserts new section 498ZZHA into the Residential Tenancies Act 1997 to require that the Tribunal must have regard to the following factors when determining whether it is reasonable and proportionate to make a possession order—

whether the matter giving rise to the possession order is trivial;

whether the matter giving rise to the possession order was caused by a person other than the SDA resident;

as the case requires, the behaviour of the SDA provider or the SDA provider's agent;

the interests of other SDA residents living in the SDA enrolled dwelling;

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whether suitable alternative accommodation is likely to be available for the SDA resident's use;

whether an order other than a possession can be made;

whether another course of action is reasonably available;

any other matter the Tribunal considers relevant.

Clause 195 inserts new section 498ZZJ(1A) into the Residential Tenancies Act 1997 to provide that in determining the day on which the SDA resident, who is subject to a possession order, must vacate the SDA enrolled dwelling, the Tribunal must take into account any requirements the SDA resident may have to access suitable alternative accommodation.

Clause 196 repeals subsection 498ZZK(b)(ii) of the Residential Tenancies Act 1997.

Clause 197 substitutes section 498ZZV of the Residential Tenancies Act 1997 to provide that an SDA resident's contravention of a duty under section 498N is no longer a factor that the Tribunal may be satisfied of in order to issue a warrant of possession without delay on the application of an SDA provider or mortgagee of an SDA enrolled dwelling during any period of postponement specified in an order under section 498ZZU. The failure to pay any rent accrued remains a ground for immediate issue of a warrant of possession without delay under section 498ZZV.

Clause 198 increases the penalty under subsection 498ZZZA(2) of the Residential Tenancies Act 1997 for an SDA enrolled dwelling owner who refuses to give reclaimed documents to the person who has the lawful right to the personal documents from 60 penalty units to 150 penalty units for a natural person and from 300 penalty units to 750 penalty units for a body corporate.

Clause 199 substitutes section 498ZZZC(2) of the Residential Tenancies Act 1997 to provide that, despite the fact that goods left behind in the SDA enrolled dwelling are of no monetary value, the SDA enrolled dwelling owner must not remove and destroy or dispose of goods that have been left behind if those goods are prescribed goods.

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Subclause (2) repeals section 498ZZZC(3), which is no longer required as a result of the substitution of section 498ZZZC(2).

Clause 200 substitutes section 498ZZZD of the Residential Tenancies Act 1997 to provide consistency with recent amendments proposed to be inserted in that Act by the Residential Tenancies Amendment Act 2018 in relation to goods left behind by renters in Part 9. Substituted section 498ZZZD provides that if a former SDA resident leaves behind goods (other than goods which may be removed and destroyed or disposed of under section 498ZZZC), the SDA enrolled dwelling owner must—

take reasonable steps to give notice, in the form approved by the Director, to the former SDA resident that the goods have been left behind; and

store the goods for a period of at least 14 days, beginning on the day on which the SDA enrolled dwelling owner gave the notice to the former SDA resident.

A notice to the former SDA resident that goods have been left behind must include a statement informing the former SDA resident of their rights and obligations in relation to the goods left behind.

The SDA enrolled dwelling owner may remove the goods from the SDA enrolled dwelling and store them at a safe place.

Clause 201 repeals section 498ZZZE of the Residential Tenancies Act 1997.

Clause 202 substitutes section 498ZZZF and 498ZZZG of the Residential Tenancies Act 1997 to account for changes to, and provide consistency with, the regime of goods left behind by renters under amendments proposed to be inserted into Part 9 of that Act by the Residential Tenancies Amendment Act 2018. New section 498ZZZF provides that the owner of the SDA enrolled dwelling may sell or dispose of stored goods if the former SDA resident or other person with a lawful right to the stored goods has not reclaimed them within 14 days, unless the SDA enrolled dwelling owner has agreed, or been ordered by the Tribunal, to

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store the goods for longer than 14 days. If the Tribunal orders the storage of goods for a period of more than 14 days, the SDA enrolled dwelling owner may sell or dispose of the goods in any lawful manner after that period if the former SDA resident or other person who has a lawful right to the stored goods has not reclaimed the goods.

New section 498ZZZG provides that if the stored goods are sold under Division 12 of Part 12A of the Residential Tenancies Act 1997, the former SDA resident or other person who has a lawful right to the goods may request payment of the proceeds of the sale, less any amount for storage fees and for the reasonable costs of the sale.

The former SDA resident or other person who has a lawful right to the goods must make a request for payment of the proceeds within 6 months from the date of the sale.

If the former SDA resident or other person who has a lawful right to the goods has not made a request within 6 months from the date of the sale, the SDA enrolled dwelling owner must pay into the Residential Tenancies Fund the proceeds of the sale, less any amount for storage fees and for the reasonable costs of the sale, within 30 days after the end of that 6 month period.

The penalty amount assigned to this section is 30 penalty units.

Clause 203 repeals section 498ZZZH of the Residential Tenancies Act 1997.

Clause 204 substitutes section 498ZZZM of the Residential Tenancies Act 1997 to provide that if a former SDA resident or other person who has a lawful right to goods left behind at an SDA enrolled dwelling requests the SDA enrolled dwelling owner to store the goods for more than 14 days and the SDA enrolled dwelling owner refuses, the former SDA resident or other person may apply to the Tribunal for an order requiring the SDA enrolled dwelling owner to store the goods for a period of more than 14 days. This amendment reflects changes to, and provides consistency with, amendments proposed to be inserted into Part 9 of that Act by the Residential Tenancies Amendment Act 2018 in relation to goods left behind by renters.

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Clause 205 amends section 498ZZZN(c) of the Residential Tenancies Act 1997 to substitute "declaration" with "order" to reflect that section 498ZZZM has been substituted, and the Tribunal will now make orders under that section.

Clause 206 increases the penalty under section 498ZZZO of the Residential Tenancies Act 1997, for the offence relating to an SDA provider entering an SDA enrolled dwelling without reasonable excuse, from 20 penalty units to 60 penalty units.

Clause 207 increases the penalties for an SDA provider or a person acting on their behalf under section 498ZZZP(1) and (2) of the Residential Tenancies Act 1997 for the following offences, except where acting in accordance with Part 12A—

compelling an SDA resident to vacate the SDA enrolled dwelling;

obtaining or attempting to obtain possession through entry, whether the entry is peaceable or not, unless there are reasonable grounds to believe that the SDA resident has abandoned the dwelling.

The penalty amount for these offences increases from 60 penalty units to 300 penalty units for a natural person and from 300 penalty units to 750 penalty units for a body corporate.

Clause 208 inserts new section 498ZZZPA into the Residential Tenancies Act 1997 to stipulate that an SDA provider who obtains possession of an SDA enrolled dwelling in respect of which a notice to vacate has been given under section 498ZX(1)(h) or (ha) must not enter into, or establish, an agreement under that Act with a person, to use the part of the dwelling to which the notice related, as a residence before the end of 6 months after the date on which the notice was given.

The penalty assigned for an offence against new section 498ZZZPA(1) is 150 penalty units in the case of a natural person, and 750 penalty units in the case of a body corporate.

New section 498ZZZPA(2) and (3) provide that section 498ZZZPA(1) does not apply if—

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the Tribunal determines that the SDA enrolled dwelling may be let;

the Tribunal determines that an SDA residency agreement may be entered into or established in respect of the SDA enrolled dwelling;

the dwelling ceases to be an SDA enrolled dwelling; or

the owner or leaseholder of the SDA enrolled dwelling ceases to be registered under the NDIS to be an NDIS provider.

Clause 209 amends the heading of section 498ZZZQ of the Residential Tenancies Act 1997 to provide that the section applies to offences for false or fraudulent representations.

Subclause (3) increases the penalty for the new standalone offence of making a false representation in relation to an SDA residency agreement from 60 penalty units to 300 penalty units for a natural person and from 300 penalty units to 750 penalty units for a body corporate.

Subclause (4) inserts new section 498ZZZQ(2) which outlines the new standalone offence of making a fraudulent representation in relation to an SDA residency agreement. A person must not make, in relation to an SDA residency agreement or a proposed SDA residency agreement or a right or duty under Part 12, a fraudulent misrepresentation as to—

a provision of Part 12A; or

a term in, or to be included in, the SDA residency agreement; or

a matter affecting a person's rights or duties under Part 12A or an SDA residency agreement or proposed SDA residency agreement.

The penalty for an offence against new section 498ZZZQ(2) is 300 penalty units for a natural person and 750 penalty units for a body corporate.

Clause 210 increases the penalty amount under section 498ZZZR of the Residential Tenancies Act 1997 for the offence of persuading a party to the SDA residency agreement not to exercise their rights

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to take or continue proceedings under Part 12A from 60 penalty units to 300 penalty units for a natural person and from 300 penalty units to 750 penalty units for a body corporate.

Clause 211 increases the penalty amount under section 498ZZZS of the Residential Tenancies Act 1997 for the offence of aiding, abetting, counselling or procuring the commission of an offence against Part 12A from 60 penalty units to 300 penalty units for a natural person and from 300 penalty units to 750 penalty units for a body corporate.

Clause 212 increases the penalty amount under section 498ZZZT of the Residential Tenancies Act 1997 for demanding or accepting from an SDA resident (who is under an SDA residency agreement and has failed to comply with the agreement or with the provisions in Part 12A relating to the agreement) the payment of any amount other than rent under the agreement or an amount or penalty provided in Part 12A. The penalty increase is from 60 penalty units to 300 penalty units for a natural person and from 300 penalty units to 750 penalty units for a body corporate.

Division 3—Other miscellaneous amendments

Clause 213 substitutes the following in sections 498DA(1)(b)(iii) and 498DA(2)(b)(iii) of the Residential Tenancies Act 1997—

"residential rental agreement" substituted for "tenancy agreement";

"residential rental provider" substituted for "landlord"; and

"section 91ZB" substituted for "section 237" .

The amendments are proposed to come into operation at the same time as section 5 of the Residential Tenancies Amendment

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Act 2018 which will change terminology currently used in the Residential Tenancies Act 1997.

Clause 214 inserts a note at the foot of section 506(3A) of the Residential Tenancies Act 1997, regarding the service of documents. The note states that there are further requirements in section 498E in respect of notices given under Part 12A.

Division 4—SDA residents—residential rental agreement

Clause 215 inserts new Subdivision 3A into Division 9 of Part 2 of the Residential Tenancies Act 1997, which contains new sections 91YA and 91YB.

New section 91YA establishes a process by which an SDA resident, the Director, the SDA resident's guardian or administrator or the Public Advocate can apply to the Tribunal for an order which—

terminates the existing residential rental agreement;

terminates the existing residential rental agreement and requires an SDA provider who is a residential rental provider to enter a new residential rental agreement with the SDA resident and others specified in the application; or

if all the renters are SDA residents, terminates the existing residential rental agreement and requires an SDA provider who is a residential rental provider to enter into or establish an SDA residency agreement with each person who is a renter under the existing residential rental agreement.

The grounds on which an application for an order under section 91YA may be made are where the SDA resident—

was either coerced or deceived into entering the residential rental agreement;

did not receive the information statement as required under section 498D before entering the residential rental agreement;

did not receive an explanation of the information statement as required by section 498E.

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For the purposes of a proceeding under new section 91YA(1) the parties to the proceeding are—

the SDA resident as the applicant or the Director, the SDA resident's guardian (if any), the SDA resident's administrator (if any) or the Public Advocate on their behalf;

the SDA provider;

any other party to the existing residential rental agreement;

any other person specified in the application.

The application may be made without the consent of the SDA provider or other parties to the agreement.

The Tribunal must hear an application within 3 business days or no later than the next available sitting day after the end of the 3 business day period.

If an application is made under this section, any other actions that could otherwise be taken in relation to that residential rental agreement are stayed until the Tribunal determines the outcome of the application.

New section 91YB establishes that, on an application under section 91YA(1), the Tribunal may order the dismissal of the application for the termination of the residential rental agreement. Or, if the Tribunal is satisfied that the SDA resident was coerced or deceived into entering a residential rental agreement, did not receive an information statement under section 498D or an explanation of the statement under section 498E, the Tribunal may—

order the termination of the residential rental agreement; or

order the termination of the residential rental agreement and the entering of a new residential rental agreement or the establishment of one or more SDA residency agreements.

New section 91YB(3) permits the Tribunal to adjourn the application to determine a termination date in consultation with the parties to the existing residential rental agreement or to allow the parties to enter into a new residential rental agreement or

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enter into, or establish one or more SDA residency agreements. If the parties are unable to enter into a new residential rental agreement or one or more SDA residency agreements, the Tribunal may direct the parties to enter into a new agreement or agreements on terms declared by the Tribunal.

New section 91YB(4) provides that when making an order, the Tribunal may have regard to any financial disadvantage suffered by the renter and, regardless of any loss or damage suffered by the SDA provider, make an order that any bond paid be paid out by the Residential Tenancies Bond Authority to the renter or renters. The Tribunal may also revoke any compensation orders that have been made against the renter or renters.

New section 91YB(5) provides that in determining an application under section 91YA(1), the Tribunal may take into account the Director's guidelines.

Clause 216 inserts new section 91ZB(1)(g) and section 91ZB(3A) in the Residential Tenancies Act 1997.

Section 91ZB enables a renter to whom the section applies to give a residential rental provider a notice of intention to vacate rented premises under a fixed term or periodic residential rental agreement. New section 91ZB(1)(g) applies section 91ZB to a renter, who is an SDA resident, who has been given notice under section 498DA of the Residential Tenancies Act 1997.

Subclause (2) inserts new section 91ZB(3A) which gives a renter, who is an SDA resident and has been given a notice under section 498D, the right to give a residential rental provider who is, or was, an SDA provider, a notice of intention to vacate a premises that is, or was, an SDA enrolled dwelling, specifying a termination date that is not less than 14 days after the date on which the notice is given.

Clause 217 inserts new section 420D in the Residential Tenancies Act 1997.

New section 420D provides that if, on an application made to the Tribunal by a renter who is an SDA resident under section 91YA, the Tribunal makes an order in accordance with section 91YB(4) to pay out any bond, the Residential Tenancies Bond Authority

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must pay out the bond to the renter or renters in accordance with the order of the Tribunal.

Part 4—Amendment of other Acts

Division 1—Amendment of Disability Services Safeguards Act 2018

Clause 218 amends the specified definitions in section 3(1) of the Disability Services Safeguards Act 2018.

Subclause (a) inserts a new definition for clearance and exclusion in section 3(1) of the Disability Services Safeguards Act 2018. Clearance means a current and operative decision made by an NDIS worker screening unit in relation to a person who has undergone an NDIS worker screening check that the person is cleared to work with persons with a disability. Exclusion means a current and operative decision made by an NDIS worker screening unit in relation to a person who has undergone an NDIS worker screening check that the person is excluded from working with persons with a disability.

Subclause (a) also inserts a new definition of NDIS worker screening unit in section 3(1) of the Disability Services Safeguards Act 2018. NDIS worker screening unit means a person or body which is responsible for conducting NDIS worker screening checks for a State or Territory under its NDIS worker screening legislation.

Subclause (b) repeals the definition of NDIS worker screening agency. That term is no longer needed as it is being replaced by the term NDIS worker screening unit.

Subclause (c) amends the term NDIS worker screening check clearance in section 3(1) of the Disability Services Safeguards Act 2018 by removing the word "clearance" so that the defined term is now NDIS worker screening check.

These amendments are required to ensure these terms are consistent with the terms used in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Clause 219 substitutes section 20(c) of the Disability Service Safeguards Act 2018. Section 20(c) currently provides the Disability

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Worker Registration Board of Victoria power to delegate to an employee of the Victorian Disability Worker Commission or a person engaged by the Victorian Disability Worker Commission to provide services to the Board. This section is substituted to refer instead to the persons engaged under the new section 32A (which is being inserted by clause 225) of the Disability Service Safeguards Act 2018 under which staff are employed or engaged to assist the Victorian Disability Worker Commission or the Victorian Disability Worker Commissioner.

Clause 220 repeals section 21(2)(d) of the Disability Service Safeguards Act 2018 to remove from the Victorian Disability Worker Commission's powers the right to employ staff. This is consequential to new section 32A of the Disability Services Safeguards Act 2018 (which is being inserted by clause 225) which provides the Victorian Disability Worker Commissioner power to employ public servants to assist the Commissioner or the Victorian Disability Worker Commission.

Clause 221 repeals section 24 of the Disability Services Safeguards Act 2018. Section 24 provided that the Victorian Disability Worker Commission could employ or engage any persons necessary to enable it to carry out its or the Victorian Disability Worker Commissioner's functions and power. This amendment is consequential to new section 32A of the Disability Services Safeguards Act 2018 (being inserted by clause 225) which provides the Victorian Disability Worker Commissioner power to employ public servants and engaged persons to assist the Commissioner or the Victorian Disability Worker Commission.

Clause 222 amends section 25 of the Disability Services Safeguards Act 2018 so that the Victorian Disability Worker Commission may delegate any of the Commission's duties, powers or functions to any person employed or engaged by the Victorian Disability Worker Commissioner to assist the Commissioner or the Commission. Previously, the Commission could delegate to persons employed or engaged by the Commission. This amendment is consequential to new section 32A of the Disability Services Safeguards Act 2018 (being inserted by clause 225) which provides the Victorian Disability Worker Commissioner power to employ public servants to assist the Commissioner or the Victorian Disability Worker Commission.

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Clause 223 inserts a new subsection (3) into section 26 of the Disability Services Safeguards Act 2018 to provide that the Public Administration Act 2004 (other than Part 3, except as provided by section 16 of that Act) applies to the Victorian Disability Worker Commissioner in respect of the office of the Commissioner. This amendment has been made to allow the Victorian Disability Worker Commissioner to employ or engage staff under Part 3 of the Public Administration Act 2004 in accordance with new section 32A(a) of the Disability Services Safeguards Act 2018 (which is being inserted by clause 225).

Clause 224 makes an amendment to section 27(1)(c) of the Disability Services Safeguards Act 2018 to clarify that the Victorian Disability Worker Commissioner's functions includes any duties, functions and powers conferred on the Victorian Disability Commissioner under the Disability Services Safeguards Act 2018, in addition to any other duties, functions and powers conferred on the Victorian Disability Commissioner under any other Act.

Clause 225 inserts a new section 32A in the Disability Services Safeguards Act 2018. This section provides that persons may be employed under Part 3 of the Public Administration Act 2004, or engaged, to assist the Victorian Disability Worker Commissioner or the Victorian Disability Worker Commission in exercising a power or performing a duty or function under the Disability Services Safeguards Act 2018 or any other Act.

This clause replaces the repealed section 24 of the Disability Services Safeguards Act 2018 to allow staff employed to assist the Victorian Disability Worker Commissioner or the Victorian Disability Worker Commission to be employed under Part 3 of the Public Administration Act 2004. Under this new section 32A, staff will be employed by the Commissioner, and not the Commission, as the Commissioner will be an office holder who has all the functions of a public service body Head in relation to employees under new section 16(1)(kf) of the Public Administration Act 2004.

Clause 226 substitutes new sections 119(1)(b)(i) and (ii) in the Disability Services Safeguards Act 2018 to provide that the Victorian Disability Worker Commission may conduct an investigation into an unregistered disability worker of a complaint or notification if the Commission reasonably believes that the disability worker

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has been issued an exclusion, or had a clearance suspended or revoked, by an NDIS worker screening unit. Previously, these sections referred to the refusal, suspension or revocation of a worker screening check by an NDIS worker screening agency. This amendment is consequential to amending the definitions regarding checks and the screening agency to ensure the terms used are consistent with the terms used in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Clause 227 subclause (1) substitutes new section 121(b)(i) and (ii) of the Disability Services Safeguards Act 2018 to provide that the Victorian Disability Worker Commission may conduct an investigation of a complaint or notification into any matter if the Commission reasonably believes that the matter relates to an unregistered disability worker who has been issued an exclusion, or had a clearance suspended or revoked, by an NDIS worker screening unit. Previously, these sections referred to the refusal, suspension or revocation of a worker screening check by an NDIS worker screening agency. This amendment is consequential to amending the definitions regarding checks and the screening agency to ensure the terms used are consistent with the terms used in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Subclause (2) amends section 121(b)(iv) of the Disability Services Safeguards Act 2018 to omit "clearance" as a consequence of the amendments to the definitions to use "NDIS worker screening check" to reflect the terminology used in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Clause 228 amends section 131 of the Disability Services Safeguards Act 2018. Subclause (1) substitutes section 131(c) and subclause (2) amends section 131(d) so that the grounds for the Victorian Disability Worker Commissioner making an interim prohibition order include that the unregistered disability worker has been issued an exclusion or has had a clearance suspended or revoked by an NDIS worker screening unit, or is subject to an interim bar regarding an NDIS worker screening check.

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Previously, these grounds referred to the refusal, suspension, revocation or interim bar of worker screening check clearances by the NDIS worker screening agency. The amendments are to ensure the terms used are consistent with the terms used in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Clause 229 amends section 133(c), (d) and (e) of the Disability Services Safeguards Act 2018 to omit "NDIS worker screening check" and "clearance" as a consequence of the amendments to the definitions to reflect terminology used under the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Clause 230 amends the definition of relevant event in section 207(3) of the Disability Services Safeguards Act 2018 to omit "NDIS worker screening check" and "clearance" as a consequence of the amendments to the definitions to ensure the terms used are consistent with the terms used in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Clause 231 amends section 209(1) of the Disability Services Safeguards Act 2018 to omit "NDIS worker screening check" and "clearance" to ensure the terms used are consistent with the terms used in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Clause 232 amends paragraph (b) of the definition of relevant entity in section 241(2) of the Disability Services Safeguards Act 2018 to refer to an "NDIS worker screening unit" instead of an "NDIS worker screening agency". This is consequential to the amendments to the definition of "NDIS worker screening agency" to ensure the terms used are consistent with the terms used in the National Disability Insurance Scheme

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(Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Clause 233 amends the heading to section 257 and amends section 257(1), (2) and (3) of the Disability Services Safeguards Act 2018. The effect of the amendments are that "NDIS worker screening check clearance" is replaced with "NDIS worker screening check" and "NDIS worker screening agency" is replaced with "NDIS worker screening unit". This is consequential to the amendments to the definitions to ensure the terms used are consistent with the terms used in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 made under the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Clause 234 repeals sections 300 and 301 of the Disability Services Safeguards Act 2018. Section 300 proposed to insert section 218A into the Residential Tenancies Act 1997 to provide for the termination of a tenancy agreement by an SDA resident. Section 301 proposed to amend section 235 of the Residential Tenancies Act 1997 with respect to notices of intention to vacate under proposed section 218A. Section 218A is not required as it is duplicative of new section 234A to be inserted into the Residential Tenancies Act 1997 by clause 147 of the Bill.

Clause 235 substitutes a new section 309 of the Disability Services Safeguards Act 2018. Section 309 amends the regulation making power under section 511(1)(h) of the Residential Tenancies Act 1997. The regulation power will include the specified matters relating to SDA residency agreements and SDA enrolled dwellings. It will no longer include the ability to prescribe matters relating to information statements under section 498D. The Director will approve the matters to be included in information statements under section 498D, as provided for under section 498D(1) as amended by clause 153 of the Bill.

Clause 236 contains statute law revision amendments and corrects typographical errors in section 302 and 316(2) of the Disability Services Safeguards Act 2018.

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Division 2—Amendment of Residential Tenancies Amendment Act 2018

Clause 237 amends definitions in section 5(1) of the Residential Tenancies Amendment Act 2018 which are proposed to be inserted into section 3(1) of the Residential Tenancies Act 1997—

The definition of breach of duty notice is amended to provide that the definition does not apply to Division 9 of Part 12A.

The definition of notice of intention to vacate is amended to include a notice of intention to vacate an SDA enrolled dwelling under an SDA residency agreement under section 498ZZA.

The definition of notice to vacate is amended to include a notice to vacate an SDA enrolled dwelling under an SDA residency agreement under section 498ZX.

The definition of standard form is amended to provide that it does not apply to Part 12A.

The definition of fair wear and tear in section 5(1) of the Residential Tenancies Amendment Act 2018 is amended to include the reasonable use of an SDA enrolled dwelling by an SDA resident.

Subclause (2) repeals the amendment to the definition of health or residential service in section 3(1) of the Residential Tenancies Act 1997 as provided under section 5(3)(e) of the Residential Tenancies Amendment Act 2018, with the effect that a health or residential service does not include a premises where specialist disability accommodation is provided.

Clause 238 amends new section 486A(1) of the Residential Tenancies Act 1997 which is proposed to be inserted by section 318 of the Residential Tenancies Amendment Act 2018 to include that the Director may approve documentary evidence which supports the reason for giving a notice to vacate under subsections 498ZX(1)(h), (ha) and (k).

Clause 239 repeals sections 387 and 388 of the Residential Tenancies Amendment Act 2018.

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Division 3—Amendment of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

Clause 240 repeals the definition of residential institution (which has the same meaning as in the Disability Act 2006) and amends the definition of appropriate place and forensic resident to omit references to "residential institutions" in section 3(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. The effect is that the Court may no longer make an order to detain a person in a residential institution.

These amendments are required as, by 1 July 2020, residential institutions will no longer exist in Victoria.

Clause 241 amends section 26(9) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to omit a reference to "residential institutions". Section 26(9) will now provide that a person who is detained in custody in a residential treatment facility under a supervision order is deemed to be in the custody of the Secretary to the Department of Health and Human Services. Previously, persons detained in a residential institution were also under the Secretary's custody.

This amendment is required as, by 1 July 2020, residential institutions will no longer exist in Victoria.

Clause 242 amends section 30B(1B)(a) and (3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to remove references to "residential institutions". Section 30B includes powers to obtain a warrant to arrest a person no longer in Victoria who is ordinarily detained in a residential institution under a custodial supervision order and return the person to the residential institution. These powers are no longer required as, by 1 July 2020, residential institutions will no longer exist in Victoria.

Clause 243 amends section 41(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to remove references to "residential institutions" in the definition of "appropriate person". The effect is that the Secretary to the Department of Health and Human Services may no longer be required to prepare a report referred to in section 41(1) with respect to a person detained in, or receiving treatment from, a residential institution.

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These amendments are required as, by 1 July 2020, residential institutions will no longer exist in Victoria.

Clause 244 amends section 47(1)(a) and (b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to remove references to "residential institutions". The effect is that the Secretary of the Department of Health and Human Services may no longer be required to provide the court with a certificate of available services when the court is considering making an order to detain a person in a residential institution or to receive services from a residential institution. The amendment is necessary as the court is no longer able to make such orders as from 1 July 2020, residential institutions will no longer exist in Victoria and the relevant sections of the Disability Act 2006 dealing with residential institutions will be repealed.

Clause 245 amends section 52 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to remove references to "residential institutions" from the definition of surrounds. The effect is that a forensic patient or forensic resident may no longer be absent from detention in a residential institution but within the surrounds of a residential institution.

These amendments are required as, by 1 July 2020, residential institutions will no longer exist in Victoria and persons may thus no longer be detained within them.

Clause 246 amends the note to section 73E(2) and paragraphs (b) and (d) of section 73E(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to remove references to "residential institutions". The effect is that when a person is transferred to Victoria from a participating State, the person may no longer be detained in a residential institution. These amendments are required as, from 1 July 2020, residential institutions will no longer exist in Victoria and thus persons may no longer be detained in them.

Clause 247 amends section 73K(8)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 to remove references to "residential institutions". The effect is that when a person from another State absconds to Victoria is arrested under a warrant issued under section 73J, the person may not be detained or remanded in a residential institution. This amendment is required

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as, by 1 July 2020, residential institutions will no longer exist in Victoria and thus persons may no longer be detained them.

Division 4—Amendment of Mental Health Act 2014

Clause 248 amends the definition of mental health service provider in section 3(1) of the Mental Health Act 2014 to exclude services provided by mental health service providers under the NDIS from the ambit of the Mental Health Act 2014. The effect is that organisations that solely provide mental health services under the NDIS will no longer be regulated by the Mental Health Act 2014. Mental health service providers that provide a combination of services under the NDIS and the Mental Health Act 2014 will not be regulated by the Mental Health Act 2014 with respect to services provided under the NDIS. The amendment is consequential to the transition of the regulation of mental health services provided under the NDIS to the NDIS Commission.

Definitions of NDIS Act and NDIS Commission are inserted into section 3(1) of the Mental Health Act 2014. NDIS Act means the National Disability Insurance Scheme Act of the Commonwealth and NDIS Commission means the NDIS Quality and Safeguards Commission established under section 181A of the NDIS Act.

Clause 249 amends section 228(j) of the Mental Health Act 2014 so that—

the Mental Health Complaints Commissioner's functions includes providing information to the specified persons or bodies arising out of analysing and reviewing complaints, in addition to making recommendations to the specified bodies; and

the Agency, within the meaning of the NDIS Act and NDIS Commission within the meaning of the NDIS Act are also specified bodies to whom the Mental Health Complaints Commissioner may provide information or recommendations.

The amendments are consequential to the NDIS Commission regulating and considering complaints about services provided

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under the NDIS from 1 July 2019 that had previously fallen within, or overlap with the Mental Health Complaints Commissioner's functions. The amendments ensure the Mental Health Complaints Commissioner may disclose information to the NDIS Commission and Agency as appropriate.

Clause 250 amends section 233(1) of the Mental Health Act 2014 to clarify that the NDIS Commission may refer to the Mental Health Complaints Commissioner complaints relating to a consumer. Upon referral, the Mental Health Complaints Commissioner may treat it as a complaint received under section 232(1).

The amendment is consequential to the NDIS Commission regulating and considering complaints about services provided under the NDIS from 1 July 2019 that had previously fallen within, or overlap with the Mental Health Complaints Commissioner's functions. The amendment ensures the most appropriate body considers complaints.

Clause 251 inserts a new Division 2 in Part 16A of the Mental Health Act 2014 which contains transitional provisions consequential to the Disability (National Disability Insurance Scheme Transition) Amendment Act 2019. As a result, a heading for the existing provisions in Part 16A is inserted to reflect that they are transitional provisions consequential to the Mental Health Amendment Act 2015.

New sections 429, 430, 431 and 432 are inserted into the Mental Health Act 2014 which are consequential to the amendment made by clause 248 to the definition of mental health service provider to exclude services provided by mental health service providers which are funded under the NDIS from the ambit of the Mental Health Act 2014. The new sections are intended to ensure there is no diminution in safeguards for consumers by ensuring there are no gaps in complaints and investigation processes, or assistance provided by community visitors, as a result of services being funded under the NDIS and no longer being included within the ambit of the Mental Health Act 2014. This is achieved by ensuring relevant Mental Health Complaints Commissioner functions, chief psychiatrist investigation functions, and community visitor functions may be exercised for existing matters, and may be exercised for new matters that relate

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to events which occurred before the relevant service is subject to regulation by the NDIS Commission.

New section 429 inserts definitions which apply to new Division 2 of Part 16A.

New section 430(1) requires the Mental Health Complaints Commissioner to continue to exercise the Commissioner's functions under Part 10 of the Mental Health Act 2014 in respect of services provided by mental health service providers funded by the NDIS before 1 July 2019 in relation to—

existing complaints not yet complete before commencement of clause 248; or

new complaints made after commencement of clause 248 provided the complaint relates to matters that occurred before 1 July 2019.

New section 430(2) requires the Mental Health Complaints Commissioner to continue to exercise the Commissioner's functions under Part 10 of the Mental Health Act 2014 in respect of services provided by mental health service providers funded by the NDIS on and after 1 July 2019 in relation to—

existing complaints not yet complete before the service subject of the complaint begins being funded by the NDIS; or

new complaints made on or after the day the service subject of the complaint begins being funded by the NDIS provided the complaint relates to matters that occurred prior.

New section 431(1) requires the chief psychiatrist to continue to exercise the chief psychiatrist's functions under Division 2 of Part 7 of the Mental Health Act 2014 in respect of services provided by mental health service providers funded by the NDIS before 1 July 2019 in relation to—

existing investigations not yet complete before commencement of clause 248; or

new investigations provided the investigation relates to matters that occurred before 1 July 2019.

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New section 431(2) requires the chief psychiatrist to continue to exercise the chief psychiatrist's functions under Division 2 of Part 7 of the Mental Health Act 2014 in respect of services provided by mental health service providers funded by the NDIS on and after 1 July 2019 in relation to—

existing investigations not yet complete before the service subject of the complaint begins being funded by the NDIS; or

new investigations commenced on or after the day the service subject of the complaint begins being funded by the NDIS provided the investigation relates to matters that occurred prior.

New section 432 enables a community visitor to continue to perform functions under section 216(b) of the Mental Health Act 2014 and exercise related powers in Part 9 of that Act to assist persons receiving mental health services at prescribed premises which are funded under the NDIS and provided by a mental health service provider, provided the assistance relates to matters that arose before commencement of clause 248. This applies irrespective of when the service commenced being funded by the NDIS.

Division 5—Amendment of other Acts

Clause 252 amends section 41H(1) of the Child Wellbeing and Safety Act 2005 to insert a new paragraph (da) specifying the Commissioner of the NDIS Quality and Safeguards Commission as a person to whom the Principal Commissioner, a Commissioner, authorised persons, delegates or staff members of the Commission for Children and Young People may share information acquired by them under the Child Wellbeing and Safety Act 2005. The Disability Services Commissioner is also a person to whom information may be provided. The amendment is consequential to the transition of disability service providers to regulation by the NDIS Quality and Safeguards Commission and the necessity for the Commission for Children and Young People to disclose information collected about NDIS providers when

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performing its functions which are relevant to the NDIS Quality and Safeguards Commission.

Clause 253 amends clause 5(1) to exclude from the application of the Children's Service Act 1996 circumstances where the children being cared for or educated are recipients of supports or services provided by a registered NDIS provider within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth. Currently clients of disability service providers are also exempt. This amendment is necessary given the transition of disability service providers to regulation under the NDIS Act and to avoid dual regulation.

Clause 254 amends the Children, Youth and Families Act 2005.

Subclause (1) inserts a definition of registered NDIS provider and NDIS provider in section 3(1) which have the same meaning as in the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Subclause (2) amends the definition of information holder to include the person in charge of an NDIS provider or registered NDIS provider. This is in addition to the specified bodies which includes the person in charge of a disability service provider, and a person who receives State funding to provide disability services. The effect is that the Secretary to the Department of Health and Human Services, protective intervenors and community-based child and family services may request information from NDIS providers or registered NDIS providers for child protection purposes.

These amendments are to ensure that disability services and disability service providers continue to be information holders post transition to the NDIS.

Subclause (3) amends section 161(2)(g) so that it is not an offence for a registered NDIS provider providing short term accommodation and assistance or supported independent living assistance to a child, or a disability service provider to provide care for fee or reward to a child under the age of 15 years for longer than 24 hours. This amendment is required as children may be placed with specified registered NDIS providers or disability service providers for a period longer than 24 hours and such providers will receive fee or reward.

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Subclause (4) inserts new paragraph (fb) into section 263(1) to provide for the placement of a child on an interim accommodation order with a registered NDIS provider providing short term accommodation and assistance or supported independent living assistance to the child under the NDIS. This is in addition to the existing ability for a child receiving disability services under the Disability Act 2006 to be placed on an interim accommodation order with a disability service provider. This amendment is consequential to disability service providers transitioning to the NDIS and the necessity to retain the ability for children on interim accommodation orders to be placed with them.

Subclause (5) amends section 597(1) to allow the Secretary to order that a person placed, as a result of an interim accommodation order, with a registered NDIS provider be examined to determine his or her medical, physical, intellectual or mental condition. The amendment is consequential to the new ability for a child to be placed on an interim accommodation order with registered NDIS providers providing short term accommodation and assistance or supported independent living assistance to the child.

Subclause (6) amends section 597(4)(a) so that the Minister, Secretary or authorised person may consent to medical treatment or surgical or other operation or admission to hospital where the child is placed with a registered NDIS provider or a disability service provider. This amendment is consequential to the new ability for a child to be placed with registered NDIS providers under an interim accommodation order, and to reflect that there will be residual disability service providers who will not transition to the NDIS and with whom children may continue to be placed on an interim accommodation order.

Clause 255 amends the Commission for Children and Young People Act 2012.

Subclause (1) amends the definition of human service so that a registered NDIS provider within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth is also a human service. This is in addition to disability service providers, and other specified services, which are already human services. The effect is that the Commission for Children and Young People may conduct inquiries in relation to the provision

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of services provided or omitted to be provided by a registered NDIS provider. The amendment is necessary to ensure that the Commission for Children and Young People may continue to conduct inquiries in relation to disability service providers once they transition to the NDIS to become registered NDIS providers.

Subclause (2) inserts a new paragraph (da) into section 53(1) to allow the Commission for Children and Young People to disclose information to the Commissioner of the NDIS Quality and Safeguards Commission acquired by the Commission for Children and Young People when performing a function under Part 5, which may include inquiries into services provided or omitted to be provided by registered NDIS providers. Section 53(1) already enables information to be disclosed to the Disability Services Commissioner. The amendment is consequential to the Commission for Children and Young People's new power to conduct inquiries into registered NDIS providers and is necessary to ensure information collected by the Commission for Children and Young People may be disclosed if relevant to the Commissioner of the NDIS Quality and Safeguards Commission given that Commissioner's functions in regulating registered NDIS providers.

Clause 256 amends section 56AB(1)(b) and (2)(c) of the Corrections Act 1986 to remove references to residential institutions so that the legal custodian of a person transferred from a prison or police gaol to residential institutions under the Disability Act 2006 is no longer provided for. The amendments are necessary given the closure of residential institutions by 1 July 2020.

Clause 257 amends section 52A of the Crimes Act 1958 so that—

an SDA enrolled dwelling within the meaning of the Residential Tenancies 1997 is included in the definition of residential service, in addition to other services including a residential service under the Disability Act 2006; and

a registered NDIS provider within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth is included in the definition of service provider, in addition to other service providers

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including disability service providers within the meaning of the Disability Act 2006.

The effect is that the sexual offence provisions against persons with a cognitive impairment or mental illness in subdivision 8E of Division 1 of Part I of the Crimes Act 1958 apply when a person working for a registered NDIS provider or SDA enrolled dwelling, or a person who is a registered NDIS provider, is providing treatment or support services to a person with a cognitive impairment or mental illness and commits the specified sexual offences regardless of consent. The amendment is necessary to ensure workers of disability service providers and residential services continue to be captured by these sexual offence provisions despite the transition of the disability service provider or residential service to the NDIS and ensure there is no diminution in safeguards for persons with cognitive impairment or mental illness.

Clause 258 amends section 3 of the Criminal Procedure Act 2009.

Paragraph (a) amends paragraph (e) of the definition of in detention to remove reference to a person being in detention if the person is in custody in a residential institution in the legal custody of the Secretary to the Department of Human Services.

Paragraph (b) amends paragraph (e) of the definition of responsible person to remove references to the Secretary to the Department of Human Services being the person responsible for a person detained in a residential institution.

The effect is that section 332 of the Criminal Procedure Act 2009 which sets out arrangements for the transfer of an accused in detention to court by the person responsible for the accused, and section 391 Criminal Procedure Act 2009 regarding service of a person in detention, will no longer apply to persons detained in residential institutions.

These amendments are consequential to the closure of residential institutions by 1 July 2020.

Clause 259 amends item 4 in Schedule 1 to the Family Violence Protection Act 2008 to substitute the reference to section 128 of the Disability Act 2006 with a reference to section 132ZC of the

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Disability Act 2006. The effect is that an information sharing entity, which includes the Disability Services Commissioner, is authorised to collect, use or disclose confidential information in accordance with Part 5A of the Family Violence Protection Act 2008 and the regulations despite the provision preventing disclosure of information in section 132ZC of the Disability Act 2006 which applies to the Disability Services Commissioner. The amendment is necessary as section 128 of the Disability Act 2006 has been repealed and the secrecy provisions previously contained in section 128 of the Disability Act 2006 are now in section 132ZC of the Disability Act 2006.

Clause 260 amends paragraph (b) of section 10.3.6 of the Gambling Regulation Act 2003 to remove the reference to residential institutions so that the money standing to the credit of the Mental Health Fund may no longer be applied for or towards the establishment and maintenance of residential institutions. This amendment is required as, by 1 July 2020, residential institutions will no longer exist in Victoria.

Clause 261 amends the Guardianship and Administration Act 1986.

Subclause (1) amends the definition of institution under section 18A(5) so that the Public Advocate may enter any premises on which a short term accommodation and assistance dwelling within the meaning of the Disability Act 2006, or an SDA enrolled dwelling where an SDA resident resides under an SDA residency agreement within the meaning of the Residential Tenancies Act 1997, is situated. This is in addition to being able to enter the other specified institutions which includes disability service providers and residential services under the Disability Act 2006. This amendment is consequential to the transition of group homes from regulation as a residential service under the Disability Act 2006 to regulation as an SDA dwelling under the Residential Tenancies Act 1997, and the transition of provision of short term accommodation and assistance (formally respite services) under the Disability Act 2006 to the NDIS, to ensure the Public Advocate may continue to enter these services despite transition.

Subclause (2) amends the definition of institution in section 18A(5) to remove the reference to residential institution. The effect is that the Public Advocate may no longer visit residential institutions within the meaning of the Disability

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Act 2006. This amendment is required as, by 1 July 2020, residential institutions will no longer exist in Victoria.

Clause 262 amends the Guardianship and Administration Act 2019.

Subclause (1) amends the definition of institution under section 17(7) so that the Public Advocate may enter any premises on which a short term accommodation and assistance dwelling within the meaning of the Disability Act 2006, or an SDA enrolled dwelling where an SDA resident resides under an SDA residency agreement within the meaning of the Residential Tenancies Act 1997, is situated. This is in addition to being able to enter the other specified institutions which includes disability service providers and residential services under the Disability Act 2006. This amendment is consequential to the transition of group homes from regulation as a residential service under the Disability Act 2006 to regulation as an SDA dwelling under the Residential Tenancies Act 1997, and the transition of provision of short term accommodation and assistance (formally respite services) under the Disability Act 2006 to the NDIS, to ensure the Public Advocate may continue to enter these services despite transition.

Subclause (2) amends the definition of institution in section 18A(5) to remove the reference to residential institution. The effect is that the Public Advocate may no longer visit residential institutions within the meaning of the Disability Act 2006. This amendment is required as, by 1 July 2020, residential institutions will no longer exist in Victoria.

Clause 263 amends section 3(1) of the Health Complaints Act 2016 to include the National Disability Insurance Scheme Act 2013 of the Commonwealth as a relevant law in the definition of relevant law. The effect is that—

under section 19 of the Health Complaints Act 2016, the Health Complaints Commissioner may divide a complaint into a part that may be dealt with under the Health Complaints Act 2016, and a part that may be dealt with under the National Disability Insurance Scheme Act 2013 of the Commonwealth, and refer the

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latter part to a person or body responsible for dealing with the matter under that Commonwealth Act;

under section 25 of the Health Complaints Act 2016, if the subject matter of a complaint would also be reason for making a complaint or conducting an investigation or inquiry under the National Disability Insurance Scheme Act 2013 of the Commonwealth, the Health Complaints Commissioner must refer the complaint or part of the complaint to a person responsible for dealing with the matter under that Commonwealth Act; and

under section 148 of the Health Complaints Act 2016, the Health Complaints Commissioner may give information that may be the subject of, or relevant to, a complaint, investigation or inquiry under the National Disability Insurance Scheme Act 2013 of the Commonwealth, to the person or body responsible for dealing with the matter under that Commonwealth Act.

The amendment is necessary given the transition of disability services to the NDIS and to ensure the appropriate body responds to complaints, or conducts investigations or inquiries, and is provided with relevant information in order to do so.

Clause 264 amends the Health Records Act 2001.

Subclause (1) inserts a definition of NDIS Commissioner into section 3(1) which means the Commissioner of the NDIS Quality and Safeguards Commission established under section 181A of the National Disability Insurance Scheme Act 2013 of the Commonwealth.

Subclause (2) amends section 51(3) so that if an act or practice about which a complaint is made to the Health Complaints Commissioner could be the subject of an application under the National Disability Insurance Scheme Act 2013 of the Commonwealth, the Health Complaints Commissioner may refer the complaint to the NDIS Commissioner. This is in addition to the referral powers which includes the power to refer a complaint which could be the subject of an application under the Disability Act 2006 to the Disability Services Commissioner.

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These amendments are necessary given the transition of disability services to the NDIS and to ensure the appropriate body responds to complaints.

Clause 265 amends the Independent Broad-based Anti-corruption Commission Act 2011.

Subclause (1) amends paragraph (e) of the definition of detained persons in section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011 to include a person detained in an SDA enrolled dwelling. This amendment is necessary as there will be people subject to supervised treatment orders under the Disability Act 2006 detained in SDA enrolled dwellings. The effect will be that such persons may provide information or make a complaint to the Independent Broad-based Anti-corruption Commission under section 53 and the protections for communication of the complaint will apply.

Subclause (2) amends paragraph (e) of the definition of detained persons in section 3(1) of the Independent Broad-based Anti-corruption Commission Act 2011 to remove the reference to residential institution. This amendment is required as, by 1 July 2020, residential institutions will no longer exist in Victoria.

Clause 266 amends the definition of health facility in section 3(1) of the Medical Treatment Planning and Decisions Act 2016.

Paragraph (a) amends paragraph (c) in the definition of health facility to replace the reference to group home within the meaning of the Disability Act 2006 to residential service.

Paragraph (b) amends the definition of health facility to include an SDA enrolled dwelling within the meaning of Residential Tenancies Act 1997.

The effect of the amendments are that under section 98 of the Medical Treatment Planning and Decisions Act 2016 the operator of a health facility will be required to ascertain whether any patient in an SDA enrolled dwelling or residential service, but not a residential institution, has an advance care directive or appointed a medical treatment decision maker or support person.

These amendments are consequential to the regulation of group homes transitioning to regulation as SDA enrolled dwellings

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under the Residential Tenancies Act 1997, the necessity for section 98 to apply to persons continuing to reside in residual residential services, and the closure of residential institutions by 1 July 2020.

Clause 267 amends sections 28(1) and 28(1A) of the Ombudsman Act 1973 to remove the reference to residential institution so that a letter written by specified persons in a residential institution addressed to the Ombudsman may no longer be immediately forwarded to the Ombudsman, and a letter written by the Ombudsman to those persons may no longer be immediately forwarded to the person. This amendment is required as, by 1 July 2020, residential institutions will no longer exist in Victoria and thus people will not be residing or detained in them.

Clause 268 amends section 16(1) of the Public Administration Act 2004 to include the Victorian Disability Worker Commissioner in relation to the office of the Commissioner under the Disability Service Safeguards Act 2018 as an office holder who has all the functions of a public service body Head in relation to employees, despite anything contrary in the Disability Services Safeguards Act 2018.

This amendment is necessary to allow persons employed by the Victorian Disability Worker Commissioner to be employed under Part 3 of the Public Administration Act 2004.

Clause 269 amends sections 80(3)(b) and (5) and 82AA of the Sentencing Act 1991 to replace references to the Department of Human Services with references to the Department of Health and Human Services to reflect machinery of government changes.

Clause 270 amends the Serious Offenders Act 2018.

Subclause (1) amends the definition of relevant Acts in section 284(6) of the Serious Offenders Act 2018 to include the National Disability Insurance Scheme Act 2013 of the Commonwealth, and amends the definition of relevant person to include an NDIS provider and registered NDIS provider within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth.

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The effect of the amendments is that an NDIS provider may use or disclose to another relevant person information obtained under the Serious Offenders Act 2018 or any other Act if the specified criteria is met.

The amendment is required to ensure information is shared as appropriate in relation to those persons subject to supervision orders under the Serious Offenders Act 2018 who receive services from NDIS providers.

Subclause (2) amends the definition of health care in section 287(2) to include care provided by a registered NDIS provider within the meaning of the National Disability Insurance Scheme 2013 of the Commonwealth so that the Secretary may disclose to registered NDIS providers any condition of a supervision order that may be relevant to the registered NDIS provider providing care to the offender. This is in addition to the current ability for the Secretary to provide this information to disability service providers. The amendment is consequential to the transition of disability service providers to the NDIS and the necessity to ensure continuity of care and appropriate information disclosure despite transition.

Clause 271 amends item 3 of Schedule 1 to the Summary Offences Act 1966 to remove the reference to residential institutions. The effect is that a residential institution will no longer be considered a Scheduled public place for the purposes of the offences applying specifically to Scheduled public places under section 9(1)(d), (e) and (f) of the Summary Offences Act 1966. This amendment is required as, by 1 July 2020, residential institutions will no longer exist in Victoria.

Clause 272 inserts a new subsection (3) into section 42B of the Working with Children Act 2005 which provides an additional matter which the Secretary to the Department of Justice and Community Safety may disclose to the Secretary to the Department of Health and Human Services, being information about a person who holds a current assessment notice or who has made an application for an assessment notice if the information is relevant to assessing a person's suitability to work with persons with a disability or NDIS participants. The amendment is consequential

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to the Secretary to the Department of Health and Human Services role in worker suitability.

Clause 273 amends Schedule 2 to the Victorian Civil and Administrative Tribunal Act 1998 so that rules for the form and content of a warrant of possession for an SDA enrolled dwelling under section 498ZZR of the Residential Tenancies Act 1997 may be made, in addition to the current ability for rules for the form and content of a warrant of possession for a group home under section 85B of the Disability Act 2006. The amendment is necessary due to the transition of group homes to regulation as SDA dwellings under the Residential Tenancies Act 1997 and the requirement for rules to continue to be made for a warrant to possess those properties despite transition.

Clause 274 amends paragraph (e) of the definition of detained persons in section 3(1) of the Victorian Inspectorate Act 2011 to omit a person detained in a residential institution, and include a person detained in an SDA enrolled dwelling, in addition to persons detained in residential services and residential treatment facilities. The effect is that the arrangements for a detained person to communicate with the Victorian Inspectorate under section 92A of the Victorian Inspectorate Act 2011 will apply to persons detained in an SDA enrolled dwelling, but will not apply to persons detained in residential institutions. The amendment is necessary as a result of the ability for NDIS participants to be detained under a supervised treatment order in an SDA enrolled dwelling under the Disability Act 2006, and the closure of all residential institutions by 1 July 2020.

Clause 275 inserts a new paragraph into the definition of professional care services in section 3(1) of the Voluntary Assisted Dying Act 2017 to include services provided to a person under a contract of employment or a contract for services by a registered NDIS provider within the meaning of the National Disability Insurance Scheme Act 2013 of the Commonwealth, in addition to disability services within the meaning of the Disability Act 2006, and other specified services. The effect is that—

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under section 8, a registered NDIS provider providing services to a person must not initiate discussions with a person about voluntary assisted dying or suggest voluntary assisted dying;

a registered NDIS provider directly involved in providing professional care services may not witness a declaration requesting access to voluntary assisted dying under section 35, and may not be an interpreter who assists a person to request access to or accessing voluntary assisted dying under section 115; and

the mandatory and voluntary reporting in sections 76 and 77 will apply to registered NDIS providers in the specified circumstances.

The amendment is consequential to disability service providers transitioning to the NDIS and the requirement for these protective provisions in the Voluntary Assisted Dying Act 2017 to continue to apply to them once they become registered NDIS providers and cease being disability service providers.

Part 5—Repeal of this Act

Clause 276 provides for the automatic repeal of this amending Act on 1 July 2021. The repeal of this Act does not affect in any way the continuing operation of the amendments made by this Act (see section 15(1) of the Interpretation Legislation Act 1984).

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Disability (National Disability Insurance Scheme ...FILE/5910… · Web viewwhich provides that the Disability Services Commissioner may perform the specified powers with respect