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This is a Bill, not an Act. For current law, see the Acts databases.
PARLIAMENT OF VICTORIA
Disability Act 2006
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purpose 1
2. Commencement 2
3. Definitions 2
PART 2--OBJECTIVES AND PRINCIPLES 13
4. Objectives of Act 13
5. Principles 13
6. Persons with an intellectual disability 16
7. Provision of advice, notification or information under this Act 19
PART 3--ADMINISTRATION 21
Division 1--The Secretary 21
8. Role and functions of the Secretary 21
9. Power of Secretary to provide funds 22
10. Power of Secretary to enter into contracts 23
Division 2--The Victorian Disability Advisory Council 23
11. Victorian Disability Advisory Council 23
12. Functions of the Victorian Disability Advisory Council 24
13. Provisions applying to the Victorian Disability Advisory
Council 25
Division 3--The Disability Services Commissioner 27
14. Disability Services Commissioner 27
15. Acting Disability Services Commissioner 28
16. Functions of the Disability Services Commissioner 29
17. Powers of the Disability Services Commissioner 30
18. Provision of staff and contractors 31
19. Annual report 32
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Division 4--The Disability Services Board 33
20. Constitution of the Disability Services Board 33
21. Procedure of the Disability Services Board 34
22. Functions of the Disability Services Board 35
Division 5--The Senior Practitioner 36
23. The Senior Practitioner 36
24. Functions of the Senior Practitioner 37
25. Power of Senior Practitioner to delegate 38
26. Provision of staff and contractors 39
27. Special powers of the Senior Practitioner 39
Division 6--Community Visitors 42
28. Community visitors 42
29. General provisions as to community visitors 43
30. Functions of a community visitor 43
31. Certain persons deemed to be community visitors 44
32. Community Visitors Board 45
33. Matter may be referred 45
34. Reports by community visitors 46
35. Annual report of community visitors 46
36. Secrecy provision 47
PART 4--DISABILITY SERVICES 48
Division 1--General Provisions 48
37. State Disability Plan 48
38. Disability Action Plans 49
39. Information systems 50
40. Application for registration as a disability service provider 53
41. Registration 53
42. Renewal of registration 54
43. Revocation of registration 54
44. Notice before refusal or revocation 55
45. Application for review 55
46. Register of disability service providers 56
47. Disability service provider to notify changes 57
48. Certain persons or bodies deemed or may be deemed to be
registered as disability service providers 57
Division 2--Accessing Disability Services 58
49. Request for disability services 58
50. Request to Secretary for decision as to disability 59
51. Effect of decision of Secretary 60
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Division 3--Planning 60
52. Guiding principles for planning 60
53. Planning 62
54. Support plan 62
55. Planning for persons with an intellectual disability 63
PART 5--RESIDENTIAL SERVICES 64
Division 1--General Provisions 64
56. Purpose and application of Part 64
57. Residential statement 65
58. Duties of disability service provider providing residential
services 67
59. Duties of residents 69
60. Entry to a resident's room 70
61. Manner of entry 72
62. Offences relating to interference with rights 72
Division 2--Community Residential Units 73
63. Application of Division 73
64. Declaration of residential service as a community residential
unit 73
65. Residential charge 73
66. Notice of increase in residential charge 73
67. Limit on payment in advance 74
68. Method of payment 74
69. Receipts for payment 74
70. Residential charge must be reduced if service items are
reduced 76
71. Disputes relating to notice of increase in residential charge 77
72. What can VCAT order on an application under section 71? 77
73. Payment of increased amount pending VCAT decision 79
74. Notice of temporary relocation 80
75. Termination of residency 83
76. Notice to vacate by disability service provider 84
77. Effect of notice to vacate 87
78. Notice of no effect 87
79. What if 2 or more notices can be given? 88
80. Notice of intention to vacate by resident 88
81. Withdrawal of notice 88
82. Application to VCAT for review of notice to vacate 89
83. Application to VCAT for possession order 90
84. Possession orders 90
85. Issue of warrant of possession 92
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Clause Page
Division 3--Residential Institutions 92
86. Proclamation of residential institutions 92
87. Admission to residential institutions 92
88. Review by VCAT 93
PART 6--RIGHTS AND ACCOUNTABILITY 95
Division 1--Provision of Information 95
89. Disability service provider must provide information 95
Division 2--Provisions Relating to the Management of Money 96
90. Management of money 96
91. Residents' Trust Fund 96
92. Money to be paid into the Residents' Trust Fund by the
Secretary 97
93. Management of money of a resident 97
94. Investment of money 100
95. Limit on amount held 100
96. Trust money must be paid when person leaves 100
Division 3--Standards and Monitoring of Performance 101
97. Minister must determine standards 101
98. Secretary to specify performance measures and monitor
performance 102
99. Power of Secretary to give directions 103
100. Further powers of Secretary 104
Division 4--Appointment of Administrator 104
101. Displacement of other laws 104
102. Appointment of administrator 105
103. Additional provisions if disability service provider is
providing residential services 108
Division 5--Complaints to Disability Service Providers 111
104. Internal process for complaints 111
105. Report on complaints 111
106. Duty of disability service provider to take all reasonable steps 111
Division 6--Complaints to Disability Services Commissioner 112
107. Purpose of Division 112
108. Application of Division 112
109. What matters can be the subject of a complaint? 112
110. Who may make a complaint? 112
111. How do you make a complaint? 113
112. Withdrawal of complaint 114
113. Preliminary assessment of complaint 115
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114. Circumstances in which the Disability Services Commissioner
may decline to consider a complaint 115
115. Notice of decision to consider or not to consider complaint 117
116. Consideration of complaint suitable for conciliation 117
117. Dealing with a complaint 119
118. Investigation of a complaint 121
119. Notice of decision and procedures 123
120. Circumstances in which notice is not to be given 125
121. Duty to stop proceedings 126
122. Powers to compel attendance and call for evidence and
documents 127
123. Restrictions on powers 128
124. Warrants 128
125. False statements 133
126. Person not to be penalised for making a complaint 133
127. Protection for Disability Services Commissioner, officers and
parties to proceedings 134
128. Secrecy 134
Division 7--Visits by Community Visitors 135
129. Visiting of residential service 135
130. Powers of inspection 136
131. Request to see a community visitor 137
132. Record of visits 138
PART 7--RESTRICTIVE INTERVENTIONS 139
133. Purpose of Part 139
134. Use of restrictive interventions 139
135. Approval to use restrictive interventions 139
136. Revocation of approval 140
137. Notice before refusal or revocation 140
138. Application for review 141
139. Authorised Program Officers 141
140. Use of restraint and seclusion 142
141. Use of restraint and seclusion must be included in behaviour
management plan 143
142. Review of behaviour management plan by disability service
provider 144
143. Independent person 145
144. Powers of Public Advocate 146
145. Requirements for the use of restraint and seclusion 147
146. Review by VCAT 148
147. Use of restraint or seclusion in an emergency 149
148. Reports 150
149. Offence 151
150. Use of other restrictive interventions 152
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PART 8--COMPULSORY TREATMENT 153
Division 1--Residential Treatment Facilities 153
151. Proclamation of residential treatment facility 153
152. Admission to a residential treatment facility 154
153. Authorised Program Officer must prepare treatment plan 155
154. Annual review of treatment plan 157
155. Application for review of treatment plan 158
156. Leave of absence 159
157. Special leave 160
158. Suspension of leave of absence or special leave 162
159. Security conditions 163
160. Apprehension of resident absent without leave 163
161. Transfer of resident to another residential treatment facility
or a residential institution 164
Division 2--Provisions applying to RTO Residents 164
162. Extended leave 164
163. Appeals regarding extended leave 165
164. Suspension and revocation of extended leave 167
165. Appeals regarding revocation of extended leave 168
Division 3--Provisions applying to Security Residents 169
166. Transfer of person with an intellectual disability from a prison 169
167. Preparation of treatment plan 171
168. Annual review of security order and treatment plan 172
169. Application for review of treatment plan 173
170. Leave of absence 173
171. Special leave 174
172. Suspension of leave of absence or special leave 176
173. Security conditions 177
174. Apprehension of security resident absent without leave 177
175. Termination of a security order 178
176. Death of security resident 178
177. Request for transfer to prison 178
178. Transfer of security resident to another residential institution
or a residential treatment facility 179
179. Notice of transfer of security resident to another residential
treatment facility or residential institution 180
Division 4--Provisions applying to Forensic Residents 180
180. Transfer of persons detained in prison under the Crimes
(Mental Impairment and Unfitness to be Tried) Act 1997 180
181. Status of forensic residents 182
182. Leave of absence for forensic resident 182
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Division 5--Supervised Treatment Orders 182
183. Purpose of Division 182
184. Restrictions on liberty or freedom of movement 182
185. Use of supervised treatment 183
186. Approval to use supervised treatment 183
187. Revocation of approval 184
188. Notice before refusal or revocation 184
189. Application for review 185
190. Authorised Program Officers 185
191. Application for a supervised treatment order 186
192. Interim supervised treatment order by VCAT 188
193. Supervised treatment order 188
194. Application by the Public Advocate 190
195. Supervision of supervised treatment order 191
196. Application for review, variation or revocation 192
197. Application for rehearing 195
198. Rehearing 195
199. Senior Practitioner may make assessment order 196
200. Supervised treatment order to prevail over guardianship
order 197
201. Apprehension of person subject to a supervised treatment
order absent without approval 197
PART 9--GENERAL PROVISIONS 199
202. False and misleading statements 199
203. Defacing documents 199
204. Power of delegation 199
205. Provision of staff services 199
206. Special powers of Secretary 200
207. Appointment of authorised officers 201
208. Identity cards 201
209. Production of identity card 202
210. Powers of authorised officers 202
211. Offence to give false or misleading information 203
212. Offence to hinder or obstruct authorised officer 203
213. Offence to impersonate authorised officer 204
214. Protection against self-incrimination 204
215. Legal professional privilege 204
216. Offences by bodies corporate 204
217. Persons who are liable for offences 205
218. Power to bring proceedings 205
219. Evidentiary 206
220. Recapture of person 206
221. Regulations 206
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PART 10--MISCELLANEOUS 210
Division 1--Savings and Transitional 210
222. Repeals and Savings 210
223. Transitional provisions 211
224. Intellectual Disability Review Panel 213
225. Transitional regulations 214
Division 2--Amendment of the Sentencing Act 1991 215
226. Amendment of section 3 215
227. Special conditions of justice plans 215
228. Amendment of section 82 217
229. New section 82A inserted 217
82A. Review of residential treatment order by sentencing
court 217
230. Amendment of section 83 219
Division 3--Amendment of Victorian Civil and Administrative
Tribunal Act 1998 219
231. Amendment of Schedule 1 219
Division 4--Consequential Amendments to Other Acts 221
232. Alcoholics and Drug-dependent Persons Act 1968 221
233. Child Wellbeing and Safety Act 2005 221
234. Children, Youth and Families Act 2005 221
235. Corrections Act 1986 223
236. Crimes Act 1958 223
237. Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997 224
238. Firearms Act 1996 226
239. Gambling Regulation Act 2003 226
240. Guardianship and Administration Act 1986 227
241. Health Records Act 2001 227
242. Human Services (Complex Needs) Act 2003 227
243. Information Privacy Act 2000 228
244. Juries Act 2000 228
245. Land Tax Act 2005 228
246. Ombudsman Act 1973 229
247. Public Administration Act 2004 229
248. Residential Tenancies Act 1997 229
249. Summary Offences Act 1966 229
250. Victims of Crime Assistance Act 1996 230
ENDNOTES 231
INDEX 232
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551273B.I1-28/2/2006 BILL LA INTRODUCTION 28/2/2006
PARLIAMENT OF VICTORIA
A BILL
to enact a new legislative scheme for persons with a disability, to
repeal the Intellectually Disabled Persons' Services Act 1986 and
the Disability Services Act 1991, to amend certain other Acts and for
other purposes.
Disability Act 2006
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purpose
The purpose of this Act is to enact a new
legislative scheme for persons with a disability
which reaffirms and strengthens their rights and
5
responsibilities and which is based on the
recognition that this requires support across the
government sector and within the community.
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551273B.I1-28/2/2006 BILL LA INTRODUCTION 28/2/2006
Disability Act 2006
Act No.
Part 1--Preliminary
s. 2
2. Commencement
(1) Section 1 and this section come into operation on
the day after the day on which this Act receives
the Royal Assent.
(2) Subject to sub-section (3), the remaining
5
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
not come into operation before 1 July 2007, it
comes into operation on that day.
10
3. Definitions
(1) In this Act--
"authorised officer" means a person appointed
as an authorised officer under section 207;
"Authorised Program Officer" means a person
15
appointed under section 139 or 190;
"behaviour management plan" means a plan
developed for a person with a disability
which specifies a range of strategies to be
used in managing the person's behaviour
20
including proactive strategies to build on the
person's strengths and increase their life
skills;
"benefit to the person" means maximising a
person's quality of life and increasing their
25
opportunity for social participation;
"chemical restraint" means the use, for the
primary purpose of the behavioural control
of a person with a disability, of a chemical
substance to control or subdue the person but
30
does not include the use of a drug prescribed
by a registered medical practitioner for the
treatment, or to enable the treatment, of a
mental illness or a physical illness or
physical condition;
35
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551273B.I1-28/2/2006 BILL LA INTRODUCTION 28/2/2006
Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
"common area" means any area in which
facilities are provided for the use of residents
otherwise than as part of the room which the
resident occupies;
"community residential unit" means a
5
residential service which is declared to be a
community residential unit under section 64;
"community visitor" means a person appointed
under section 28;
"Community Visitors Board" means the Board
10
established under section 32;
"complaint", in Division 5 of Part 6, means a
complaint within the meaning of section 109;
"compulsory treatment" means treatment of a
person who is--
15
(a) admitted to a residential treatment
facility or a residential institution under
an order specified in section 152(2); or
(b) subject to a supervised treatment order;
"Department" means the Department of Human
20
Services;
"detain", in Part 8, includes--
(a) physically locking a person in any
premises; and
(b) constantly supervising or escorting a
25
person to prevent the person from
exercising freedom of movement;
"developmental delay" means a delay in the
development of a child under the age of
6 years which--
30
(a) is attributable to a mental or physical
impairment or a combination of mental
and physical impairments; and
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Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
(b) is manifested before the child attains
the age of 6 years; and
(c) results in substantial functional
limitations in one or more of the
following areas of major life activity--
5
(i) self-care;
(ii) receptive and expressive
language;
(iii) cognitive development;
(iv) motor development; and
10
(d) reflects the child's need for a
combination and sequence of special
interdisciplinary, or generic care,
treatment or other services which are of
extended duration and are individually
15
planned and coordinated;
"disability" in relation to a person means--
(a) a sensory, physical or neurological
impairment or acquired brain injury or
any combination thereof, which--
20
(i) is, or is likely to be, permanent;
and
(ii) causes a substantially reduced
capacity in at least one of the
areas of self-care, self-
25
management, mobility or
communication; and
(iii) requires significant ongoing or
long term episodic support; and
(iv) is not related to ageing; or
30
(b) an intellectual disability; or
(c) a developmental delay;
4
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Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
"disability service" means a service specifically
for the support of persons with a disability
which is provided by a disability service
provider;
"disability service provider" means--
5
(a) the Secretary; or
(b) a person or body registered on the
register of disability service providers;
"Disability Services Commissioner" means the
Disability Services Commissioner appointed
10
under section 14 and includes the Acting
Disability Services Commissioner appointed
under section 15;
"Disability Services Board" means the
Disability Services Board established under
15
section 20;
"facilities" means--
(a) land or buildings intended for use for
storage space or car parking;
(b) laundry facilities;
20
(c) cooking facilities;
(d) recreational areas;
(e) garbage storage and disposal facilities;
(f) bathroom, toilet and washing facilities;
(g) appliances for heating or cooling
25
premises;
(h) communications facilities;
(i) lawns, gardens and outhouses;
(j) stairways--
provided for the use of a resident otherwise
30
than as a part of the room;
5
551273B.I1-28/2/2006 BILL LA INTRODUCTION 28/2/2006
Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
"forensic resident" has the same meaning as it
has in section 3(1) of the Crimes (Mental
Impairment and Unfitness to be Tried)
Act 1997;
"intellectual disability", in relation to a person
5
over the age of 5 years, means the concurrent
existence of--
(a) significant sub-average general
intellectual functioning; and
(b) significant deficits in adaptive
10
behaviour--
each of which became manifest before the
age of 18 years;
"leave of absence" means temporary leave
from a residential treatment facility under
15
section 156 or from a residential institution
under section 170 given to a resident in
accordance with the resident's treatment
plan;
"mechanical restraint" means the use, for the
20
primary purpose of the behavioural control
of a person with a disability, of devices to
prevent, restrict or subdue a person's
movement but does not include the use of
devices--
25
(a) for therapeutic purposes; or
(b) to enable the safe transportation of the
person;
"Minister" means the Minister for Community
Services;
30
"notice of intention to vacate" means a notice
given under section 80;
"notice of temporary relocation" means a notice
given under section 74;
6
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Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
"notice to vacate" means a notice given under
section 76;
"person" includes a body or association
(corporate or unincorporate) and a
partnership;
5
"premises" means a structure that is designed to
be used for human habitation and the area
outside that structure which is part of the
property on which the premises is located
and includes--
10
(a) the room occupied or to be occupied by
a resident;
(b) any common area;
(c) any facilities;
"prison" has the same meaning as in the
15
Corrections Act 1986;
"Public Advocate" means the Public Advocate
appointed under section 12 of the
Guardianship and Administration Act
1986;
20
"region" has the same meaning as in the Health
Services Act 1988;
"register of disability service providers" means
the register of disability service providers
kept under section 46;
25
"rent component" means an amount for the use
by a resident of the room, any common area
and the premises;
"resident" means a person who receives
disability services in a residential service;
30
7
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Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
"resident's administrator" means the resident's
attorney appointed under an enduring power
of attorney to administer the resident's
property or a person appointed by a court or
tribunal as the administrator of the resident's
5
property;
"resident's guardian" means the resident's
guardian appointed under the Guardianship
and Administration Act 1986 or appointed
by a court and if the resident is a child,
10
includes the child's guardian whether or not
the natural parent of the child;
"residential charge" means a charge comprising
the rent component or both the rent
component and the services component;
15
"residential institution" means any premises
which is proclaimed to be, or deemed to be, a
residential institution under section 86;
"residential service" means residential
accommodation with rostered staff provided
20
by, or on behalf of, a disability service
provider for the purpose of providing
disability services to--
(a) one or more residents in a community
residential unit; or
25
(b) one or more residents in a residential
service other than a community
residential unit;
"residential treatment facility" means a
premises or program proclaimed to be a
30
residential treatment facility under
section 151;
"residential treatment order" has the same
meaning as it has in section 3(1) of the
Sentencing Act 1991;
35
8
551273B.I1-28/2/2006 BILL LA INTRODUCTION 28/2/2006
Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
"Residents' Trust Fund" means the Residents'
Trust Fund continued under section 91;
"RTO resident" means a person who is subject
to a residential treatment order;
"restraint" means chemical restraint or
5
mechanical restraint;
"restrictive intervention" means any
intervention that is used to restrict the rights
or freedom of movement of a person with a
disability including--
10
(a) chemical restraint;
(b) mechanical restraint;
(c) seclusion;
"room" means a room in a premises where the
room is occupied or intended to be occupied
15
by a person who has a right to occupy the
room for the purpose of a residence together
with a right to use in common with others
common areas in the premises;
"seclusion" means the sole confinement of a
20
person with a disability at any hour of the
day or night--
(a) in any room in the premises where
disability services are being provided of
which the doors and windows cannot be
25
opened by the person from the inside;
or
(b) in any room in the premises where
disability services are being provided of
which the doors and windows are
30
locked from the outside; or
(c) to a part of any premises in which
disability services are being provided;
9
551273B.I1-28/2/2006 BILL LA INTRODUCTION 28/2/2006
Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
"Secretary" means the Secretary to the
Department;
"security order" means a security order made
under section 166;
"security resident" means a person in respect of
5
whom a security order is in force;
"Senior Practitioner" means the person
appointed as the Senior Practitioner under
section 23;
"services component" means an amount for
10
whichever of the following service items are
provided to a resident--
(a) utilities;
(b) communications including telephone;
(c) bedding and linen;
15
(d) food;
(e) general household consumable
supplies;
(f) communal furnishings and whitegoods;
(g) household equipment and utensils;
20
(h) replacement of items specified in sub-
paragraphs (b), (c), (e), (f), or (g)
following wear and tear or accidental
damage;
"special leave" means leave from a residential
25
treatment facility under section 157 or from a
residential institution under section 171;
"supervised treatment" means treatment used on
a person with an intellectual disability under
a supervised treatment order;
30
10
551273B.I1-28/2/2006 BILL LA INTRODUCTION 28/2/2006
Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
"supervised treatment order" means a civil
order made in respect of a person with an
intellectual disability under section 191;
"support plan" means a support plan prepared
under section 54 for a person with a
5
disability who is receiving on-going
disability services;
"treatment plan" means a plan for the use of
treatment on a person with a disability
prepared under section 153, 167, 180(6)
10
or 191;
"urgent repairs" means any work necessary to
repair or remedy--
(a) a burst water service; or
(b) a blocked or broken lavatory system; or
15
(c) a serious roof leak; or
(d) a gas leak; or
(e) a dangerous electrical fault; or
(f) flooding or serious flood damage; or
(g) serious storm or fire damage; or
20
(h) a failure or breakdown of any essential
service or appliance provided by a
disability service provider for hot
water, water, cooking, heating or
laundering; or
25
(i) a failure or breakdown of the gas,
electricity or water supply to a
residential service; or
11
551273B.I1-28/2/2006 BILL LA INTRODUCTION 28/2/2006
Disability Act 2006
Act No.
Part 1--Preliminary
s. 3
(j) an appliance, fitting or fixture provided
by a disability service provider that
uses or supplies water and that is
malfunctioning in a way that results or
will result in a substantial amount of
5
water being wasted; or
(k) any fault or damage that makes a room
or residential service unsafe or
insecure; or
(l) a serious fault in a staircase; or
10
(m) any damage of a prescribed class;
"Victorian Disability Advisory Council" means
the Council established under section 11.
(2) If under the Public Administration Act 2004
the name of the Department is changed, the
15
reference in the definition of "Department" in
sub-section (1) to the "Department of Human
Services" is from the date when the name is
changed to be taken to be a reference to the
Department by its new name.
20
__________________
12
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Disability Act 2006
Act No.
Part 2--Objectives and Principles
s. 4
PART 2--OBJECTIVES AND PRINCIPLES
4. Objectives of Act
The objectives of this Act are to--
(a) advance the inclusion and participation in the
community of persons with a disability;
5
(b) promote a strategic whole of government
approach in supporting the needs and
aspirations of persons with a disability;
(c) facilitate the planning, funding and provision
of services, programs and initiatives for
10
persons with a disability;
(d) promote and protect the rights of persons
accessing disability services;
(e) support the provision of high quality
disability services;
15
(f) make disability service providers
accountable to persons accessing those
disability services;
(g) ensure the efficient and effective use of
public funds in the provision of disability
20
services.
5. Principles
(1) Persons with a disability have the same rights and
responsibilities as other members of the
community and should be empowered to exercise
25
those rights and responsibilities.
13
551273B.I1-28/2/2006 BILL LA INTRODUCTION 28/2/2006
Disability Act 2006
Act No.
Part 2--Objectives and Principles
s. 5
(2) Persons with a disability have the same right as
other members of the community to--
(a) respect for their human worth and dignity as
individuals;
(b) live free from abuse, neglect or exploitation;
5
(c) realise their individual capacity for physical,
social, emotional and intellectual
development;
(d) exercise control over their own lives;
(e) participate actively in the decisions that
10
affect their lives and have information and be
supported where necessary, to enable this to
occur;
(f) access information and communicate in a
manner appropriate to their communication
15
and cultural needs;
(g) services which support their quality of life.
(3) Disability services should--
(a) advance the inclusion and participation in the
community of persons with a disability with
20
the aim of achieving their individual
aspirations;
(b) be flexible and responsive to the individual
needs of persons with a disability;
(c) maximise the choice and independence of
25
persons with a disability;
(d) be designed and provided in a manner that
recognises different models of practice may
be required to assist people with different
types of disability and at different stages in
30
their lives to realise their physical, social,
emotional and intellectual capacities;
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(e) enable persons with a disability to access
services as part of their local community and
foster collaboration, coordination and
integration with other local services;
(f) as far as possible be provided in a manner so
5
that a person with a disability need not move
out of his or her local community to access
the disability services required;
(g) be of high quality and provided by
appropriately skilled and experienced staff
10
who have opportunities for on-going learning
and development;
(h) consider and respect the role of families and
other persons who are significant in the life
of the person with a disability;
15
(i) have regard for the needs of children with a
disability and preserve and promote
relationships between the child, their family
and other persons who are significant in the
life of the child with a disability;
20
(j) be provided in a manner that respects the
privacy and dignity of persons accessing the
disability services;
(k) be provided in a way which reasonably
balances safety with the right of persons with
25
a disability to choose to participate in
activities involving a degree of risk;
(l) have regard for any potential increased
disadvantage which may be experienced by
persons with a disability as a result of their
30
gender, language, cultural or indigenous
background or location;
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(m) be designed and administered in a manner so
as to ensure that persons with a disability
have access to advocacy support where
necessary to enable adequate decision
making about the services they receive;
5
(n) be accountable for the quality of those
services and for the extent to which the
rights of persons with a disability are
promoted and protected in the provision of
those services.
10
(4) If a restriction on the rights or opportunities of a
person with a disability is necessary, the option
chosen should be the option which is the least
restrictive of the person as is possible in the
circumstances.
15
(5) It is the intention of Parliament that the principles
specified in this section should wherever possible
be given effect to in the administration of this Act
and the provision of disability services.
6. Persons with an intellectual disability
20
(1) The following principles apply specifically in
respect of persons with an intellectual disability--
(a) persons with an intellectual disability have a
capacity for physical, social, emotional and
intellectual development;
25
(b) persons with an intellectual disability have
the right to opportunities to develop and
maintain skills and to participate in activities
that enable them to achieve valued roles in
the community;
30
(c) services for persons with an intellectual
disability should be designed and provided in
a manner which maximises opportunities for
persons living in residential institutions to
live in community based accommodation;
35
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(d) persons with an intellectual disability living
in a residential institution have the right to a
high quality of care and development
opportunities whilst they continue to reside
in the institution;
5
(e) services for persons with an intellectual
disability should be designed and provided in
a manner that ensures developmental
opportunities exist to enable the realisation
of their individual capacities;
10
(f) services for persons with an intellectual
disability should be designed and provided in
a manner that ensures that a particular
disability service provider cannot exercise
control over all or most aspects of the life of
15
a person with an intellectual disability.
(2) The repeal of the Intellectually Disabled
Persons' Services Act 1986 by this Act does not
affect the responsibility of the Minister and the
Secretary for the provision, management,
20
development and planning of services for persons
with an intellectual disability.
(3) For the purposes of determining whether or not a
person over the age of 5 years has an intellectual
disability--
25
(a) if a standardised measurement of intelligence
is used to assess general intellectual
functioning and it--
(i) indicates that the person has an
intelligence not higher than 2 standard
30
deviations below the population
average, then he or she must be taken to
have significant sub-average general
intellectual functioning;
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(ii) indicates that the person has an
intelligence not lower than 2 standard
deviations below the population
average, then he or she must be taken
not to have significant sub-average
5
general intellectual functioning;
(iii) is inconclusive as to whether or not the
person has an intelligence higher or
lower than 2 standard deviations below
the population average, then the
10
Secretary may take into account other
indicators of general intellectual
functioning in determining whether or
not the person has significant sub-
average general intellectual
15
functioning;
(b) if a standardised measurement of adaptive
behaviour is used to assess adaptive
behaviour and it indicates a score at or below
the second percentile of people of the same
20
age and cultural group, then he or she must
be taken to have significant deficits in
adaptive behaviour.
(4) In applying a standardised measurement of
intelligence for the purposes of sub-section (3)(a),
25
the Secretary must consider the test result within
the 95% confidence level as determined by the
standard error of measurement of the test.
(5) Nothing in sub-section (3) requires the Secretary
to use a standardised measurement in the
30
assessment of intellectual disability.
(6) Section 55 provides for planning for persons with
an intellectual disability.
(7) Sections 86 to 88 provide for residential services
for persons with an intellectual disability who
35
require admission to a residential institution.
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(8) Part 8 provides for persons with an intellectual
disability who require compulsory treatment.
(9) If the Secretary is satisfied that a person has an
intellectual disability, the Secretary may for the
purposes of any Act or regulation provide a
5
statement that a person has an intellectual
disability within the meaning of this Act.
7. Provision of advice, notification or information
under this Act
(1) The contents of any advice, notice or information
10
given or provided to a person with a disability
under this Act must be explained by the person
giving the advice, notice or information to the
maximum extent possible to the person with a
disability in the language, mode of
15
communication and terms which that person is
most likely to understand.
(2) An explanation given under sub-section (1) must
where reasonable be given both orally and in
writing.
20
(3) If a person appears to be incapable of reading and
understanding information provided under this
Act, a disability service provider must use
reasonable endeavours to convey the information
to the person in the language, mode of
25
communication or terms which the person is most
likely to understand.
(4) For the purposes of sub-section (3), the disability
service provider may give a copy of the advice,
notice or information--
30
(a) to a family member, guardian, advocate or
other person chosen by the person with a
disability; or
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Part 2--Objectives and Principles
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(b) if no person is chosen under paragraph (a), to
a person who the disability service provider
considers can assist the person with a
disability and is not employed by, or a
representative of, the disability service
5
provider.
__________________
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Part 3--Administration
s. 8
PART 3--ADMINISTRATION
Division 1--The Secretary
8. Role and functions of the Secretary
(1) For the purposes of this Act, the role of the
Secretary is to--
5
(a) plan, develop, provide and fund or purchase
comprehensive services, programs and
initiatives for persons with a disability;
(b) provide and fund programs and initiatives
that facilitate persons with a disability
10
exercising their rights and meeting their
responsibilities in the community;
(c) collect and analyse data for the purpose of
enabling the Secretary to achieve the
objectives and perform the functions
15
specified in this Act, including complying
with reporting requirements for the purposes
of this Act and the Commonwealth State
Territory Disability Agreement;
(d) subject to the general direction and control of
20
the Minister, administer this Act in
accordance with the objectives and principles
specified in this Act.
(2) Without limiting the generality of sub-section (1),
the Secretary has the following functions--
25
(a) to promote awareness and understanding of
disability within the community;
(b) to advance the inclusion and participation of
persons with a disability in the community;
(c) to develop policies for disability services;
30
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(d) to develop and publish criteria to enable
priority of access to disability services to be
determined in a fair manner;
(e) to determine priorities in relation to policy
development, resource allocation and the
5
provision of disability services;
(f) to monitor, evaluate and review disability
services;
(g) to promote the quality of disability services;
(h) to promote the establishment of appropriate
10
training courses and the availability of
on-going training for persons employed in
the provision of disability services;
(i) to foster collaboration, coordination and
integration in the provision to persons with a
15
disability of disability services with other
local services;
(j) to make recommendations and reports to the
Minister with respect to matters relating to
persons with a disability and to advise the
20
Minister on the operation of this Act.
9. Power of Secretary to provide funds
(1) Subject to the approval of the Minister and having
regard to the objectives and principles specified in
this Act, the Secretary may allocate funds out of
25
money available for the purpose to persons
including municipal councils and non-government
organisations.
(2) The Secretary may allocate funds under sub-
section (1) to be used for the purposes and subject
30
to the conditions considered by the Secretary to be
appropriate.
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(3) Funds under sub-section (1) may be provided to a
person who has entered into a contract with the
Secretary whether under section 10 or under any
other Act provided that the contract requires that
the funds provided under sub-section (1) must be
5
used for the purposes specified under sub-
section (2).
10. Power of Secretary to enter into contracts
(1) Without limiting the powers conferred on the
Secretary whether under this or any other Act, the
10
Secretary may enter into a contract with a person
for the provision of services of any type to persons
with a disability.
(2) A contract under this section--
(a) remains in force for the period (not
15
exceeding 3 years) specified in the contract;
(b) may contain any conditions, requirements or
other provisions that are not inconsistent
with this Act.
Division 2--The Victorian Disability Advisory Council
20
11. Victorian Disability Advisory Council
(1) There is established a body to be known as the
Victorian Disability Advisory Council.
(2) The Victorian Disability Advisory Council is to
consist of not less than 8 members and not more
25
than 14 members as may be appointed by the
Minister.
(3) The Minister must ensure that members of the
Victorian Disability Advisory Council are
appointed from persons who--
30
(a) reflect the diversity of persons with a
disability; and
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(b) reflect the cultural and indigenous
backgrounds of persons with a disability; and
(c) have appropriate skills, knowledge and
experience in matters relevant to persons
with a disability, including children with a
5
disability; and
(d) in so far as is possible have personal
experience of disability.
(4) The Minister must ensure that a majority of the
members of the Victorian Disability Advisory
10
Council are persons with a disability.
(5) The Minister must appoint one of the members to
be the chairperson of the Victorian Disability
Advisory Council.
12. Functions of the Victorian Disability Advisory
15
Council
(1) The functions of the Victorian Disability Advisory
Council are to--
(a) provide advice to the Minister in respect
of--
20
(i) whole of government policy directions
and strategic planning and the
implementation of initiatives for
persons with a disability;
(ii) the barriers to full inclusion and
25
participation in the community of
persons with a disability and the
strategies for the removal of those
barriers;
(iii) any matter relating to disability referred
30
to the Victorian Disability Advisory
Council by the Minister;
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(b) effectively communicate with persons with a
disability, the Government of Victoria and
the community;
(c) raise community awareness of the rights of
persons with a disability and of the role of
5
government, the business sector and the
community in promoting those rights;
(d) consult and work with other disability
advisory councils or bodies whether at a
national, state or local government level;
10
(e) monitor the implementation of strategies for
promoting inclusion and participation in the
community of persons with a disability and
for removing barriers to inclusion and
participation.
15
(2) The Victorian Disability Advisory Council must
report annually to the Minister on the performance
of its functions.
13. Provisions applying to the Victorian Disability
Advisory Council
20
(1) A member of the Victorian Disability Advisory
Council--
(a) holds office for the period, not exceeding
3 years, as is specified in the instrument of
appointment but, subject to paragraph (b), is
25
eligible for re-appointment;
(b) can not hold office for more than
2 consecutive terms;
(c) holds office on the terms and conditions
specified in the instrument of appointment;
30
(d) is entitled to receive the remuneration and
allowances as are fixed by the Governor in
Council for the purposes of this section;
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(e) may resign from the office of member by
notice in writing delivered to the Minister;
(f) may be removed from the office of member
by the Minister in accordance with sub-
section (2);
5
(g) is not in respect of the office of member
subject to the Public Administration Act
2004 (other than Part 5 of that Act).
(2) The Minister may remove a member of the
Victorian Disability Advisory Council from the
10
office of member if--
(a) the member is unable to perform the duties
of office because of illness or absence from
Victoria;
(b) in the opinion of the Minister the member
15
has misbehaved, neglected the duties of the
office or is incompetent;
(c) the member is or becomes bankrupt;
(d) the Minister is of the opinion that any other
act or omission of the Member has adversely
20
affected the operation of the Victorian
Disability Advisory Council.
(3) A majority for the time being of the members of
the Victorian Disability Advisory Council
constitutes a quorum of the Victorian Disability
25
Advisory Council.
(4) The Victorian Disability Advisory Council must
keep minutes of its meetings.
(5) Subject to the regulations, the Victorian Disability
Advisory Council may regulate its own
30
proceedings.
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Division 3--The Disability Services Commissioner
14. Disability Services Commissioner
(1) There shall be a Disability Services
Commissioner.
(2) The Disability Services Commissioner is to be
5
appointed by the Governor in Council.
(3) The Disability Services Commissioner is to hold
office for a term, not exceeding 5 years, specified
in the instrument of his or her appointment, but is
eligible for re-appointment.
10
(4) The Governor in Council may specify other terms
and conditions of appointment in the Disability
Services Commissioner's instrument of
appointment.
(5) The Disability Services Commissioner is entitled
15
to receive any remuneration or allowances from
time to time fixed by the Governor in Council.
(6) The Disability Services Commissioner is, in
respect of that office, not subject to the Public
Administration Act 2004.
20
(7) If immediately before his or her appointment, the
Disability Services Commissioner was an officer
within the meaning of the State Superannuation
Act 1988, then while he or she is Disability
Services Commissioner, he or she continues,
25
subject to that Act, to be an officer within the
meaning of that Act.
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15. Acting Disability Services Commissioner
(1) The Governor in Council may appoint a person to
be the Acting Disability Services Commissioner--
(a) during a vacancy in the office of Disability
Services Commissioner; or
5
(b) during any period when the Disability
Services Commissioner is absent or, for any
reason, is unable to perform the functions of
the Disability Services Commissioner.
(2) An acting appointment is for the period and on
10
any other terms and conditions determined by the
Governor in Council.
(3) The Acting Disability Services Commissioner is
entitled to receive any remuneration or allowances
from time to time fixed by the Governor in
15
Council.
(4) While acting in the place of the Disability
Services Commissioner, the Acting Disability
Services Commissioner has all the powers,
functions and duties of the Disability Services
20
Commissioner.
(5) The Acting Disability Services Commissioner is,
in respect of that office, not subject to the Public
Administration Act 2004.
(6) This section does not affect the operation of
25
section 110 of the Public Administration Act
2004.
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16. Functions of the Disability Services Commissioner
The functions of the Disability Services
Commissioner are to--
(a) investigate complaints relating to disability
services;
5
(b) review and identify the causes of complaints
and to suggest ways of removing and
minimising those causes;
(c) provide advice or inquire into matters
referred by the Minister or the Secretary;
10
(d) conciliate where a complaint has been made
in relation to a disability service provider;
(e) take steps to publish and make available in
an accessible manner details of complaints
procedures;
15
(f) maintain a record of all complaints received
by the Disability Services Commissioner;
(g) publish at prescribed intervals information
about complaints;
(h) consider ways of improving disability
20
services complaints systems;
(i) provide advice to the Disability Services
Board;
(j) refer issues to the Disability Services Board
for advice;
25
(k) develop programs for persons in the handling
of complaints;
(l) determine what action should be taken by a
disability service provider where a complaint
has been found to be justified;
30
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(m) subject to the approval of the Minister, to
initiate inquiries into--
(i) matters referred by the Disability
Services Board; and
(ii) broader issues concerning services for
5
persons with a disability arising out of
complaints received;
(n) provide education and information about
complaints relating to disability services;
(o) provide training about the prevention and
10
resolution of complaints relating to disability
services;
(p) conduct research into complaints relating to
disability services and mechanisms for
resolving complaints relating to disability
15
services;
(q) perform any other functions specified in this
Act.
17. Powers of the Disability Services Commissioner
(1) In performing functions under this Act, the
20
Disability Services Commissioner may do any of
the following--
(a) consult with any persons or bodies which the
Disability Services Commissioner considers
appropriate;
25
(b) develop, and suggest ways of implementing,
procedures for--
(i) dealing with complaints relating to
disability services; and
(ii) making existing procedures more
30
effective;
(c) provide advice to complainants of alternative
means for dealing with complaints;
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(d) provide advice generally on any matter in
respect of complaints relating to disability
services to--
(i) disability service providers;
(ii) complainants;
5
(iii) the Minister;
(iv) the Secretary;
(e) encourage disability service providers to
distribute, display or make available material
and information produced by the Disability
10
Services Commissioner about the resolution
of complaints relating to disability services;
(f) seek information from disability service
users and disability service providers about
the working of the disability services
15
complaints system.
(2) The Disability Services Commissioner may by
instrument delegate to a person or a class of
persons employed under section 18 any power,
duty or function of the Disability Services
20
Commissioner other than this power of delegation.
18. Provision of staff and contractors
(1) There may be employed under Part 3 of the
Public Administration Act 2004 any employees
that are necessary to assist the Disability Services
25
Commissioner in the performance of his or her
powers, duties and functions under this Act.
(2) The Disability Services Commissioner may enter
into agreements or arrangements with a person or
body for the purpose of obtaining appropriate
30
expertise to assist the Disability Services
Commissioner in the performance of functions
and the exercise of powers under this Act.
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s. 19
19. Annual report
(1) The Disability Services Commissioner must
include--
(a) information about the number and type of
complaints and the outcome of the
5
complaints; and
(b) any other information specifically requested
in writing by the Minister--
during the financial year in the relevant annual
report of operations under Part 7 of the Financial
10
Management Act 1994.
(2) A report made by the Disability Services
Commissioner under sub-section (1) may name a
disability service provider who has unreasonably
failed to take action that has been specified in a
15
notice under section 119(1) to remedy a complaint
and has been given a notice under section 119(6).
(3) Before naming a disability service provider in a
report under sub-section (1), the Disability
Services Commissioner must, at least 14 days
20
before naming that disability service provider--
(a) notify the disability service provider in
writing that the Disability Services
Commissioner intends to name that disability
service provider in a report; and
25
(b) give the disability service provider an
opportunity to object to the naming of that
disability service provider in the report
within the period specified in the notice.
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s. 20
Division 4--The Disability Services Board
20. Constitution of the Disability Services Board
(1) There is established a Disability Services Board.
(2) The Disability Services Board consists of
11 persons appointed by the Minister.
5
(3) The members of the Disability Services Board
must include--
(a) 3 persons who, in the Minister's opinion,
have experience of and are able to express
the interests of disability service providers;
10
(b) 3 persons with a disability who, in the
Minister's opinion, have experience of and
are able to express the interests of disability
service users;
(c) 3 persons who, in the Minister's opinion,
15
have expertise that will benefit the Disability
Services Board and are not disability service
providers or disability service users or
members of any association which acts as a
representative, advocate or adviser for
20
disability service providers or disability
service users;
(d) 1 person who is a representative of the
Secretary;
(e) 1 person who is a representative of the
25
Health Services Commissioner.
(4) The Minister must ensure that at least one of the
members appointed under sub-section (3) is a
person who in the Minister's opinion has
experience of and can represent the interests of
30
children with a disability.
(5) The Minister must appoint one of the members to
be the President of the Disability Services Board.
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(6) Each member of the Disability Services Board
holds office for 3 years from the date of the
member's appointment and is eligible for re-
appointment.
(7) The Minister may remove a member of the
5
Disability Services Board from the office of
member if--
(a) the member is unable to perform the duties
of office because of illness or absence from
Victoria;
10
(b) in the opinion of the Minister the member
has misbehaved, neglected the duties of the
office or is incompetent;
(c) the member is or becomes bankrupt;
(d) the Minister is of the opinion that any other
15
act or omission of the member has adversely
affected the operation of the Disability
Services Board.
21. Procedure of the Disability Services Board
(1) A question can not be decided at a meeting of the
20
Disability Services Board unless there are at least
6 members present.
(2) The President is to preside at meetings of the
Disability Services Board at which the President is
present.
25
(3) If the President is not present at a meeting, the
members present must elect one of their number
to preside at the meeting.
(4) The Disability Services Board must meet at the
times and places that the Minister or the President
30
fixes.
(5) The decision of the majority of the members
present and voting at any meeting is the decision
of the Disability Services Board.
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(6) If there is a tied vote at any meeting, the person
presiding at the meeting is to have an additional or
casting vote.
(7) If a member of the Disability Services Board
disagrees with a majority of the Disability
5
Services Board on any decision providing advice
to the Minister, the member may require--
(a) that his or her view be recorded with
reasons; and
(b) that his or her view and reasons accompany
10
any presentation of the decision to the
Minister.
(8) A member of the Disability Services Board who is
not an employee in the public service is entitled to
receive remuneration and allowances as the
15
Minister determines.
(9) Subject to this Act and the regulations, the
Disability Services Board may regulate its own
procedure.
22. Functions of the Disability Services Board
20
(1) The functions of the Disability Services Board are
to--
(a) advise the Minister on the disability
complaints system and the operations of the
Disability Services Commissioner under this
25
Act;
(b) advise the Disability Services Commissioner
on issues referred to the Disability Services
Board by the Disability Services
Commissioner;
30
(c) provide expertise, guidance and advice to the
Disability Services Commissioner;
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(d) promote the Disability Services
Commissioner and the operations of the
Disability Services Commissioner;
(e) subject to the approval of the Minister, refer
matters relating to disability services
5
complaints to the Disability Services
Commissioner for inquiry.
(2) The Disability Services Board may perform its
functions in any manner that the Disability
Services Board determines to be appropriate.
10
(3) The Disability Services Board may require the
Disability Services Commissioner to report to the
Disability Services Board on any matter relating
to the operations of the Disability Services
Commissioner under this Act.
15
Division 5--The Senior Practitioner
23. The Senior Practitioner
(1) Subject to the Public Administration Act 2004,
there is to be appointed by the Secretary as the
Senior Practitioner a person who in the opinion of
20
the Secretary has the appropriate clinical
qualifications and experience to perform the
functions and exercise the powers conferred on
the Senior Practitioner by or under this Act.
(2) Subject to the general direction and control of the
25
Secretary, the Senior Practitioner--
(a) is generally responsible for ensuring that the
rights of persons who are subject to
restrictive interventions and compulsory
treatment are protected and that appropriate
30
standards in relation to restrictive
interventions and compulsory treatment are
complied with;
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(b) has the powers, duties, functions and
immunities that are conferred or imposed on
the Senior Practitioner by or under this or
any other Act.
24. Functions of the Senior Practitioner
5
(1) The functions of the Senior Practitioner are--
(a) to develop guidelines and standards with
respect to restrictive interventions and
compulsory treatment;
10 Note: The guidelines and standards may include
clinical matters.
(b) to provide education and information with
respect to restrictive interventions and
compulsory treatment to disability service
providers;
15
(c) to provide information with respect to the
rights of persons with a disability who may
be subject to the use of restrictive
interventions or compulsory treatment;
(d) to provide advice to disability service
20
providers to improve practice in relation to
restrictive interventions and compulsory
treatment;
(e) to give directions to disability service
providers in relation to restrictive
25
interventions and compulsory treatment and
behaviour management plans and treatment
plans;
(f) to develop links and access to professionals,
professional bodies and academic institutions
30
for the purpose of facilitating knowledge and
training in clinical practice for persons
working with persons with a disability;
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(g) to undertake research into restrictive
interventions and compulsory treatment and
provide information on practice options to
disability service providers;
(h) to evaluate and monitor the use of restrictive
5
interventions across disability services and to
recommend improvements in practice to the
Minister and the Secretary;
(i) to undertake any other function relating to
persons with a disability as may be directed
10
in writing by the Secretary;
(j) any other functions specified by or under this
Act.
(2) The Senior Practitioner must publish annually--
(a) information on the performance of the
15
functions of the Senior Practitioner;
(b) data relating to the use of restrictive
interventions and compulsory treatment.
25. Power of Senior Practitioner to delegate
(1) Subject to this section, the Senior Practitioner may
20
by instrument delegate to a person employed in
the Department under Part 3 of the Public
Administration Act 2004 any power, duty or
function of the Senior Practitioner other than--
(a) this power of delegation; or
25
(b) any power conferred by section 199.
(2) The Senior Practitioner must only delegate to a
person--
(a) who in the opinion of the Senior Practitioner
has sufficient knowledge and expertise in
30
respect of persons with a disability; and
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(b) who has appropriate skills and qualifications
in respect of the power, duty or function
being delegated.
26. Provision of staff and contractors
(1) There may be employed under Part 3 of the
5
Public Administration Act 2004 any employees
with the appropriate expertise and experience that
are necessary to assist the Senior Practitioner in
the performance of his or her powers, duties and
functions under this Act.
10
(2) Subject to the approval of the Secretary, the
Senior Practitioner may enter into agreements or
arrangements with a person or body for the
purpose of obtaining appropriate expertise to
assist the Senior Practitioner in the performance of
15
his or her powers, duties and functions under this
Act.
27. Special powers of the Senior Practitioner
(1) This section applies--
(a) in respect of the use of restrictive
20
interventions or compulsory treatment by a
disability service provider; or
(b) if the Senior Practitioner believes on
reasonable grounds that the use of restrictive
interventions or compulsory treatment is
25
occurring as part of the provision of a
disability service whether or not an order
specified in section 152(2) or a supervised
treatment order is in effect.
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(2) If this section applies, the Senior Practitioner has
the power to--
(a) visit and inspect any part of the premises
where disability services are being provided,
other than any premises or part of any
5
premises used as a private residence that is
not a residential service;
(b) if paragraph (a) applies, see any person who
is subject to any restrictive intervention or
compulsory treatment;
10
(c) investigate, audit and monitor the use of
restrictive interventions and compulsory
treatment;
(d) inspect and make copies of, or take extracts
from, any document relating to any person
15
who is subject to any restrictive intervention
or compulsory treatment;
(e) see any person involved in the development,
implementation or authorisation of any
restrictive intervention or compulsory
20
treatment upon request;
(f) request information from a disability service
provider relating to any restrictive
intervention or compulsory treatment;
(g) authorise by written order given to the
25
disability service provider the use of a
restrictive intervention.
(3) The Senior Practitioner may by written order
direct a disability service provider--
(a) to discontinue or alter as specified in the
30
order, a practice, procedure or treatment
observed or carried out by the disability
service provider;
(b) to observe or carry out a practice, procedure
or treatment specified in the order;
35
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(c) to provide a practice, procedure or treatment,
or a particular practice, procedure or
treatment specified in the order, to a person
with a disability who is specified in the
order.
5
(4) If the Senior Practitioner gives a direction under
sub-section (3)(a) to discontinue a practice,
procedure or treatment, the Senior Practitioner
must provide assistance in developing alternative
strategies for the management of the behaviour of
10
the person affected.
(5) The Senior Practitioner must as soon as
practicable advise in writing the person with a
disability of--
(a) any authorisation given under sub-
15
section (2)(g); or
(b) any direction given under sub-section (3).
(6) If the Senior Practitioner wishes to perform or
exercise, or is performing or exercising, any
power, duty or function under this Act, the
20
disability service provider and every member of
the staff or management of the disability service
provider must provide the Senior Practitioner with
any reasonable assistance that the Senior
Practitioner requires to perform or exercise that
25
power, duty or function effectively.
(7) A disability service provider or member of the
staff or management of a disability service
provider must--
(a) reasonably render assistance when required
30
to do so under sub-section (6);
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(b) give full and true answers to the best of that
person's knowledge to any questions asked
by the Senior Practitioner in the performance
or exercise of any power, duty or function
under this Act.
5
Penalty: 60 penalty units.
Division 6--Community Visitors
28. Community visitors
(1) The Governor in Council may on the
recommendation of the Public Advocate appoint
10
community visitors for each region.
(2) Each community visitor--
(a) holds office for a period of 3 years;
(b) is eligible for re-appointment at the end of
the term of office;
15
(c) is entitled to be paid any fees and travelling
and other allowances fixed by the Governor
in Council;
(d) is not in respect of the office of community
visitor subject to the provisions of the Public
20
Administration Act 2004.
(3) A person can not be appointed as a community
visitor if that person--
(a) holds any appointment or employment with
the Department; or
25
(b) has any direct interest in any contract with
the Department.
(4) In nominating persons for appointment as
community visitors, the Public Advocate must as
far as practicable nominate an equal number of
30
males and females.
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29. General provisions as to community visitors
(1) The Governor in Council may specify terms and
conditions of appointment in the instrument of
appointment of a person as a community visitor.
(2) The Governor in Council may on the
5
recommendation of the Public Advocate remove a
community visitor from office.
(3) A person may resign from the office of
community visitor by writing signed by that
person and delivered to the Governor in Council.
10
(4) The office of a community visitor becomes vacant
if that community visitor--
(a) becomes bankrupt; or
(b) is convicted of an indictable offence or of an
offence which, if committed in Victoria,
15
would be an indictable offence; or
(c) becomes incapable of performing the duties
of the office of community visitor; or
(d) is removed from office or resigns from
office.
20
30. Functions of a community visitor
The functions of a community visitor are to visit
any premises where a disability service provider is
providing residential services in the region for
which the community visitor is appointed and to
25
inquire into--
(a) the appropriateness and standard of premises
for the accommodation of residents;
(b) the adequacy of opportunities for inclusion
and participation by residents in the
30
community;
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(c) whether the residential services are being
provided in accordance with the principles
specified in section 5;
(d) whether information is being provided to
residents as required by this Act;
5
(e) any case of suspected abuse or neglect of a
resident;
(f) the use of restrictive interventions and
compulsory treatment;
(g) any failure to comply with the provisions of
10
this Act;
(h) any complaint made to a community visitor
by a resident.
31. Certain persons deemed to be community visitors
(1) Any person who is appointed by the Minister or
15
the Secretary for the purpose of any investigation
in connection with the administration of this
Act--
(a) is by virtue of that office or appointment
deemed to be a community visitor for every
20
region; and
(b) has and may exercise all the powers
conferred on a community visitor by this
Act.
(2) Sub-section (1) does not require a person deemed
25
to be a community visitor to perform any of the
functions or duties of a community visitor.
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32. Community Visitors Board
(1) The Community Visitors Board established by
section 61 of the Intellectually Disabled
Persons' Services Act 1986 is continued under
this Act.
5
(2) The Community Visitors Board consists of--
(a) the Public Advocate; and
(b) 2 community visitors elected in accordance
with the regulations by community visitors.
(3) The functions of the Community Visitors Board
10
are to--
(a) represent community visitors;
(b) prepare and circulate publications explaining
the role of community visitors;
(c) supervise the training of community visitors;
15
(d) report a matter to the Public Advocate or the
Minister;
(e) refer a matter under section 33;
(f) prepare an annual report.
33. Matter may be referred
20
Without limiting the discretion of the Community
Visitors Board to refer a matter to any other
person, the Community Visitors Board may refer
a matter reported by a community visitor to
whichever of the following the Community
25
Visitors Board considers is the appropriate person
to deal with that matter--
(a) the Secretary;
(b) the Disability Services Commissioner;
(c) the Senior Practitioner;
30
(d) the Ombudsman.
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34. Reports by community visitors
(1) The community visitors for a region must at least
twice a year submit a report to the Community
Visitors Board on visits made since the last report.
(2) The Minister may require the Community Visitors
5
Board to report to the Minister on any matter
specified by the Minister at the time and in the
manner directed by the Minister.
(3) The Community Visitors Board may at any time
submit a report to the Minister if the Community
10
Visitors Board considers that any matter should be
considered personally by the Minister.
(4) A community visitor may at any time submit a
report to the Community Visitors Board
containing any recommendations that the
15
community visitor considers should be considered
by the Community Visitors Board.
35. Annual report of community visitors
(1) The Community Visitors Board must as soon as
practicable after the end of each financial year but
20
not later than the following 30 September, submit
to the Minister a report on the activities of
community visitors during the financial year.
(2) The Minister must cause the annual report of the
community visitors to be laid before the
25
Legislative Council and the Legislative Assembly
before the expiration of the fourteenth sitting day
of the Legislative Council or the Legislative
Assembly as the case may be after the annual
report has been received by the Minister.
30
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36. Secrecy provision
(1) Unless sub-section (2) applies, a person who is or
has been, at any time, a community visitor must
not, either directly or indirectly make a record of,
or divulge or communicate to any person, or make
5
use of, any information that is or was acquired by
the person because the person is or was appointed
as a community visitor, for any purpose, except to
the extent necessary for the person--
(a) to perform any official duties; or
10
(b) to perform or exercise any function or power
under this Act.
Penalty: 60 penalty units.
(2) Sub-section (1) does not prevent a person from--
(a) producing a document to a court in the
15
course of criminal proceedings or in the
course of any proceedings under this Act; or
(b) divulging or communicating to a court, in the
course of any proceedings referred to in
paragraph (a), any matter or thing coming
20
under the notice of the person in the
performance of official duties or in the
performance of a function or in the exercise
of a power referred to in sub-section (1); or
(c) producing a document or divulging or
25
communicating information that is required
or permitted by any Act to be produced,
divulged or communicated, as the case may
be, if, where the document or information
relates to the personal affairs of another
30
person, that other person has given consent
in writing.
__________________
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PART 4--DISABILITY SERVICES
Division 1--General Provisions
37. State Disability Plan
(1) The Minister must ensure that a State Disability
Plan is prepared--
5
(a) as at 1 January 2013; and
(b) at the end of each period of 4 years
thereafter.
(2) The State Disability Plan 2002-2012 as in
existence before the commencement of this
10
section has effect as if it had been prepared under
this section.
(3) The purpose of a State Disability Plan is to
establish goals to assist in furthering the
objectives and principles specified in this Act.
15
(4) Without limiting the generality of sub-section (3),
a State Disability Plan must--
(a) identify the needs of persons with a
disability;
(b) establish goals and priorities for the support
20
of persons with a disability;
(c) identify objectives and policy priorities for
the development and delivery of services for
persons with a disability;
(d) identify strategies for achieving those
25
objectives and priorities.
(5) In preparing a State Disability Plan, regard must
be had to the different needs of persons with
different types of disabilities which may require
different strategies.
30
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38. Disability Action Plans
(1) A public sector body must ensure that a Disability
Action Plan is prepared for the purpose of--
(a) reducing barriers to persons with a disability
accessing goods, services and facilities;
5
(b) reducing barriers to persons with a disability
obtaining and maintaining employment;
(c) promoting inclusion and participation in the
community of persons with a disability;
(d) achieving tangible changes in attitudes and
10
practices which discriminate against persons
with a disability.
(2) Any plan lodged by a public sector body or a
Council with the Human Rights and Equal
Opportunity Commission in compliance with
15
Part 3 of the Commonwealth Disability
Discrimination Act 1992 is to be taken to be a
Disability Action Plan prepared by that public
sector body or Council for the purposes of this
section.
20
(3) A public sector body must report on the
implementation of their Disability Action Plan in
its annual report.
(4) If a Council determines to prepare a Disability
Action Plan, the Disability Action Plan should be
25
consistent with this section.
(5) If a Council determines not to prepare a Disability
Action Plan, the Council must ensure that the
matters referred to in sub-section (1) are addressed
in the Council Plan prepared under the Local
30
Government Act 1989.
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(6) In this section--
"Council" has the same meaning as it has in
section 3(1) of the Local Government Act
1989;
"public sector body" means--
5
(a) a Department within the meaning of
section 4(1) of the Public
Administration Act 2004;
(b) a statutory authority which is
prescribed for the purposes of this
10
section;
(c) a statutory corporation which is
prescribed for the purposes of this
section.
39. Information systems
15
(1) The Secretary must ensure that the Department
maintains information systems for the purposes of
enabling--
(a) the planning, monitoring, evaluating,
provision and funding of disability services
20
for persons with a disability;
(b) the Secretary to achieve the objectives and
perform the functions conferred on the
Secretary under this Act or any other law
relating to disability.
25
(2) Sub-section (3) applies to--
(a) a person who is or has been appointed to any
office under this Act or employed or engaged
under this Act;
(b) a disability service provider or a person who
30
is or has been employed or engaged by a
disability service provider or who otherwise
provides or has provided services under this
Act;
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(c) a person who is or has been a member of
staff of the public service for the purposes of
this Act.
(3) A person to whom this sub-section applies must
not, directly or indirectly, disclose to any person
5
any information relating to the provision of
disability services to any person that is gained by
or given to that person in his or her official
capacity and that identifies, or is likely to lead to
the identification of, the person to whom the
10
information relates.
Penalty: 20 penalty units.
(4) Sub-section (3) does not prevent the disclosure of
information--
(a) to the extent that is reasonably required in
15
connection with the performance of a duty or
the exercise of a power or function under this
or any other Act including without limiting
the generality of this paragraph--
(i) for the purpose of developing or
20
maintaining and improving the
information systems required to be
maintained by sub-section (1);
(ii) for the purpose of planning, managing,
monitoring, evaluating and improving
25
the provision of disability services and
which is of a statistical nature;
(b) by a disability service provider to the
Secretary of information of a statistical
nature which the disability service provider
30
is required to provide under this Act for the
purpose of enabling the Secretary to perform
functions conferred, and meet obligations
imposed, on the Secretary under this Act or
any Commonwealth Act;
35
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(c) with the consent of the person to whom the
information relates or of that person's
guardian or of that person's next-of-kin if
that person is dead;
(d) to another person to whom sub-section (3)
5
applies, if the disclosure is reasonably
required in connection with the provision by
that other person of services under this Act
to the person to whom the information
relates;
10
(e) to any person to the extent that is necessary
in connection with the provision of care or
treatment to the person to whom the
information relates if the person to whom the
information relates is unable to consent to
15
the disclosure and without the disclosure he
or she may, in the opinion of the discloser,
suffer detriment;
(f) to a court or tribunal in the course of a
proceeding before it;
20
(g) to the Minister;
(h) to the Secretary;
(i) to the Disability Services Commissioner;
(j) to the Senior Practitioner;
(k) to the Public Advocate;
25
(l) to a person to whom in the opinion of the
Minister it is in the public interest that the
disclosure be made.
(5) For the purposes of sub-section (4)(a), "any other
Act" does not include the Health Privacy
30
Principles in the Health Records Act 2001 or
Part 3 or 5 of that Act.
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40. Application for registration as a disability service
provider
(1) A person may apply to the Secretary for
registration of the person as a disability service
provider.
5
(2) A person may apply to the Secretary on behalf of
an unincorporated body for registration of the
unincorporated body as a disability service
provider.
(3) The Secretary may require a person or an
10
unincorporated body who has applied for funding
under this Act to apply for registration as a
disability service provider before any funds are
provided.
(4) An application for registration as a disability
15
service provider must be in the form approved by
the Secretary.
41. Registration
(1) The Secretary may register a person or an
unincorporated body as a disability service
20
provider if the Secretary is satisfied that--
(a) the person or unincorporated body can
provide a service for persons with a
disability; and
(b) the service can be provided in compliance
25
with the requirements of this Act.
(2) The Secretary may impose any conditions or
restrictions that the Secretary considers
appropriate on the registration of a disability
service provider.
30
(3) Without limiting the generality of sub-section (2),
the Secretary may impose conditions with respect
to staffing arrangements and the appointment,
numbers and qualifications of persons to be
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employed or engaged by the disability service
provider in the provision of disability services.
(4) Unless revoked, the registration of a disability
service provider has effect for a period of 3 years
or a longer period as determined by the Secretary
5
in each case.
42. Renewal of registration
(1) A registered disability service provider may apply
to the Secretary for renewal of registration as a
disability service provider.
10
(2) An application for renewal of registration as a
disability service provider must be in the form
approved by the Secretary.
(3) Unless revoked, the renewal of registration of a
disability service provider has effect for a period
15
of 3 years or a longer period as determined by the
Secretary in each case.
43. Revocation of registration
(1) The Secretary may revoke the registration of a
disability service provider if the Secretary
20
considers it appropriate to do so.
(2) For the purposes of sub-section (1), the Secretary
may have regard to the following--
(a) the Secretary has ceased providing funding
to the disability service provider;
25
(b) the Secretary has terminated a contract with
the disability service provider for the
provision of disability services;
(c) the disability service provider has failed to
comply with requirements under this Act;
30
(d) any other circumstances that the Secretary
considers relevant.
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(3) The Secretary must revoke the registration of a
disability service provider if the disability service
provider has ceased to provide disability services.
44. Notice before refusal or revocation
(1) The Secretary must not refuse an application
5
under section 40 unless the Secretary has given a
notice in writing to the person making the
application in accordance with sub-section (3) and
has considered any submission made by the
person.
10
(2) The Secretary must not refuse an application
under section 42 or revoke the registration of a
disability service provider under section 43(1)
unless the Secretary has given a notice in writing
to the disability service provider in accordance
15
with sub-section (3) and has considered any
submission made by the disability service
provider.
(3) The notice must specify--
(a) the proposed decision and the reasons for the
20
proposed decision;
(b) that the person or the disability service
provider may make a submission in writing
within 14 days of the notice being given.
45. Application for review
25
(1) A person or a disability service provider may
apply to VCAT for a review of a decision by the
Secretary--
(a) to refuse an application under section 40; or
(b) to refuse an application under section 42; or
30
(c) to revoke the registration of a disability
service provider under section 43(1).
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(2) An application for review must be made within
28 days after the later of--
(a) the day on which the decision is made; or
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998, the
5
person or the disability service provider
requests a statement of reasons for the
decision, the day on which the statement of
reasons is given to the person or the
disability service provider or the person or
10
the disability service provider is informed
under section 46(5) of that Act that a
statement of reasons will not be given.
46. Register of disability service providers
(1) The Secretary must keep a register of disability
15
service providers.
(2) The Secretary must make available for public
inspection a list of disability service providers.
(3) The Secretary must include the following
information in the register of disability service
20
providers in respect of each disability service
provider--
(a) the name of the disability service provider;
(b) the address of the disability service provider;
(c) contact information for the disability service
25
provider.
(4) The Secretary is not required to include the details
of any natural person in the register of disability
service providers.
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47. Disability service provider to notify changes
A disability service provider must notify the
Secretary in writing within 14 days if there is a
change to the information recorded in the register
of disability service providers in respect of that
5
disability service provider.
Penalty: 10 penalty units.
48. Certain persons or bodies deemed or may be
deemed to be registered as disability service
providers
10
(1) A person or body receiving funds for the
provision of a disability service under the
Intellectually Disabled Persons' Services Act
1986 or the Disability Services Act 1991
immediately before the commencement of
15
section 222 is deemed to be registered as a
disability service provider under this Act.
(2) Unless revoked in accordance with section 43, a
registration by virtue of sub-section (1) continues
in effect until the agreement under which the
20
funds are provided ends or is terminated.
(3) The Secretary may deem a person or body to be
registered as a disability service provider under
this Act if the person or body--
(a) is a community service within the meaning
25
of section 3(1) of the Children, Youth and
Families Act 2005; and
(b) provides a service specifically for the
support of persons with a disability who are
children.
30
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Division 2--Accessing Disability Services
49. Request for disability services
(1) A person with a disability or a person on behalf of
a person with a disability may request disability
services from a disability service provider.
5
(2) If a disability service provider receives a request
under sub-section (1), the disability service
provider may--
(a) agree to the request; or
(b) refuse the request.
10
(3) For the purpose of making a decision on a request
under sub-section (1), the disability service
provider may require--
(a) the person making the request to provide
more information;
15
(b) the person with a disability to undergo an
assessment.
(4) If a disability service provider refuses a request
under sub-section (2)(b), the disability service
provider must within 14 days of deciding to refuse
20
the request advise in writing the person making
the request--
(a) that the request has been refused and the
reason for the refusal; and
(b) if the reason for the refusal is that the
25
disability service provider is of the opinion
that the person for whom the disability
services are requested does not have a
disability, that the person in respect of whom
disability services have been requested has a
30
right to have the issue of whether the person
has a disability decided by the Secretary.
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(5) If a disability service provider agrees to provide
disability services without requiring an assessment
of the person, the provision of disability services
to the person is not of itself to be taken to be
evidence that the person to whom the disability
5
services are provided is a person with a disability.
50. Request to Secretary for decision as to disability
(1) A person to whom section 49(4)(b) applies may
request the Secretary to decide whether or not the
person has a disability.
10
(2) For the purposes of making a decision under this
section, the Secretary may require the person
making the request and the disability service
provider to provide any relevant information.
(3) The Secretary may determine the appropriate
15
process to enable the Secretary to make a decision
as to disability.
(4) If the Secretary decides that a formal assessment
is necessary, the Secretary must ensure that the
formal assessment is commenced within 30 days
20
of receiving the request for a decision.
(5) Despite sub-section (4), the Secretary may--
(a) defer the commencement of a formal
assessment for up to 3 months after receiving
the request for a decision; or
25
(b) discontinue any uncompleted formal
assessment and defer the undertaking of a
further formal assessment for up to 3 months
after discontinuing the formal assessment--
if the Secretary believes on reasonable grounds
30
that any formal assessment completed before then
is unlikely to establish reliably that the person has
a disability.
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(6) The Secretary must within 14 days of making a
decision as to whether a person has a disability
advise in writing the person who made the
request--
(a) of the decision; and
5
(b) that the person can apply to VCAT for a
review of the decision.
(7) An application for a review must be made within
28 days after the person receives the advice under
sub-section (6).
10
(8) On an application for a review under sub-
section (7), VCAT may--
(a) confirm the decision of the Secretary; or
(b) order that the decision of the Secretary be
substituted by the decision of the Tribunal;
15
or
(c) remit the matter to the Secretary for further
consideration in accordance with this
section.
(9) A decision of VCAT under sub-section (8)(b) has
20
effect as if it were the decision of the Secretary.
51. Effect of decision of Secretary
A decision by the Secretary under section 50 that
a person has a disability does not of itself entitle
the person to the provision of disability services.
25
Division 3--Planning
52. Guiding principles for planning
(1) Planning for the purposes of this Division should
be undertaken to the extent to which it is
reasonably practicable in accordance with the
30
principles specified in sub-section (2).
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(2) Planning should--
(a) be individualised;
(b) be directed by the person with a disability;
(c) where relevant, consider and respect the role
of family and other persons who are
5
significant in the life of the person with a
disability;
(d) where possible, strengthen and build
capacity within families to support children
with a disability;
10
(e) consider the availability to the person with a
disability of informal support and other
support services generally available to any
person in the community;
(f) support communities to respond to the
15
individual goals and needs of persons with a
disability;
(g) be underpinned by the right of the person
with a disability to exercise control over their
own life;
20
(h) advance the inclusion and participation in the
community of the person with a disability
with the aim of achieving their individual
aspirations;
(i) maximise the choice and independence of
25
the person with a disability;
(j) facilitate tailored and flexible responses to
the individual goals and needs of the person
with a disability;
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(k) provide the context for the provision of
disability services to the person with a
disability and where appropriate coordinate
the delivery of disability services where
there are more than one disability service
5
providers.
Note: Planning encompasses a range of responses from a
brief discussion and agreement about actions
required through to an extensive process and the
10 development of a plan across a whole range of life
areas documented in a format that is meaningful to
the person and their network.
53. Planning
(1) A person with a disability or a person on their
behalf may request the disability service provider
15
to provide assistance with planning.
(2) The disability service provider must within a
reasonable period of receiving the request for
assistance arrange for the assistance to be
provided.
20
54. Support plan
(1) This section applies if a person is receiving on-
going disability services.
(2) If this section applies, the disability service
provider must, in consultation with the person
25
with a disability, ensure that a support plan
identifying the disability services being provided
to that person is prepared within 60 days of the
person commencing to regularly access the
disability services.
30
(3) While a person is receiving on-going disability
services, a support plan--
(a) may be reviewed at any time by the
disability service provider or at the request of
the person with a disability or a person on
35
their behalf;
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(b) must be reviewed at least once during each
period of 3 years commencing from when
the support plan is first prepared.
(4) If a person ceases to receive on-going disability
services, the support plan is terminated.
5
55. Planning for persons with an intellectual disability
(1) Without derogating from the general application
of section 53, if a person with an intellectual
disability or a person on their behalf has requested
disability services from a disability service
10
provider, the disability service provider must offer
assistance with planning in accordance with the
principles specified in section 52.
(2) If an offer of assistance under sub-section (1) is
accepted, the disability service provider must
15
arrange for the assistance to be provided within a
reasonable period after the offer is accepted.
(3) A person with an intellectual disability residing in
a residential institution must have their support
plan reviewed at intervals not exceeding
20
12 months.
__________________
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s. 56
PART 5--RESIDENTIAL SERVICES
Division 1--General Provisions
56. Purpose and application of Part
(1) The purpose of this Part is to create specific rights
for persons residing in residential services and to
5
impose specific obligations on disability service
providers providing residential services--
(a) whilst enabling the support needs of persons
with a disability to be met and the
obligations of disability service providers to
10
be fulfilled;
(b) which balance the rights and needs of
individuals and the demands of providing
disability services throughout the State of
Victoria;
15
(c) which apply regardless of whether the
disability service provider is the owner or
landlord of the property where the residential
services are provided.
(2) The Residential Tenancies Act 1997 does not
20
apply in respect of residential services.
(3) The regulations may provide that a prescribed
class of disability service provider is, subject to
any prescribed conditions, exempted from
complying with prescribed provisions of this Part
25
specified in respect of that prescribed class of
disability service provider.
(4) This Part does not apply in respect of persons
residing in residential treatment facilities and the
provision of residential services in residential
30
treatment facilities.
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57. Residential statement
(1) A disability service provider providing residential
services must--
(a) give a person with a disability a residential
statement in writing when they commence
5
residing at the residential service; and
(b) provide a copy of the residential statement to
the resident's guardian or the resident's
administrator, if any.
(2) The residential statement must specify--
10
(a) the period to which the residential statement
relates;
(b) details of the residential services to be
provided;
(c) the name and contact details of the disability
15
service provider, and if the disability service
provider has an agent, the name and contact
details of the agent;
(d) a statement as to the amount of the
residential charge, what components will be
20
provided and when and how the amount is to
be paid;
(e) any conditions which apply to the provision
of the residential services;
25 Example
A resident may have a behaviour management plan
with which the resident must comply.
(f) information relating to a matter which is
prescribed for the purposes of this section.
(3) A residential statement may include other
30
information.
(4) A residential statement must not include
information that is inconsistent with this Act.
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(5) If any information provided under sub-section (3)
is inconsistent with this Act or with the
information required to be provided under sub-
section (2), the information cannot be used or
relied upon.
5
(6) A statement of the duties of the disability service
provider and the rights and duties of residents in
the form approved by the Secretary must be
attached to the residential statement.
(7) The statement of resident's rights and duties must
10
state the rights and duties of a resident under this
Act including--
(a) the right to see a community visitor;
(b) the right to make a complaint;
(c) the procedures for making a complaint or
15
seeking a review under this Act.
(8) The disability service provider must give the
resident reasonable notice in writing of any
change in the information provided in the
residential statement.
20
(9) If notice of any change in the information
provided in the residential statement is given in
accordance with another provision of this Act, the
notice is also to be taken to have been given under
sub-section (8).
25
(10) The information provided in a residential
statement is to be taken to have been updated to
include the information provided under sub-
section (8).
(11) If a disability service provider includes details of
30
their agent in the residential statement, a reference
in this Part to the disability service provider
includes a reference to their agent.
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(12) If a disability service provider fails to provide
information required under this section or fails to
give reasonable notice of any change in the
information, the disability service provider cannot
rely on that information to enforce a provision of
5
this Act.
58. Duties of disability service provider providing
residential services
(1) A disability service provider providing residential
services must--
10
(a) take reasonable measures to ensure that
residents are treated with dignity and respect
and with due regard to their entitlement to
privacy;
(b) ensure that the premises in which the
15
residential services are provided and any
fixtures, furniture and equipment provided
are maintained in good repair;
(c) minimise any inconvenience or disruption to
residents when undertaking repairs or
20
renovations;
(d) take reasonable steps to ensure that any
repairs or renovations are completed in a
timely and reasonable manner;
(e) subject to sub-section (2), not unreasonably
25
limit or interfere with a resident's access to
his or her room or to the toilet, bathroom or
other common areas in the premises which
are available for the resident's use;
(f) not unreasonably interfere with a resident's
30
right to privacy or proper use and enjoyment
of the premises;
(g) take reasonable measures to ensure the
security of a resident's property;
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(h) be accessible to residents by--
(i) providing the contact details of the
disability service provider or their
agent; and
(ii) ensuring that the times during which
5
the disability service provider or their
agent can be contacted are reasonable
having regard to all the circumstances
including the kind of support services
being provided to residents;
10
(i) ensure that residents receive any information
which they are required to be given under
this Part.
(2) For the purposes of sub-section (1)(e), a resident's
access is not unreasonably limited or interfered
15
with if the limitation or restriction is imposed by
the disability service provider in accordance
with--
(a) the resident's behaviour management plan
which has been lodged with the Senior
20
Practitioner; or
(b) the resident's treatment plan; or
(c) a direction in respect of the resident given to
the disability service provider by the Senior
Practitioner, including a direction requiring
25
an amendment to the resident's behaviour
management plan or treatment plan.
(3) A disability service provider must implement
strategies to minimise the impact on other
residents in the residential service of a limitation
30
or restriction to which sub-section (2) applies.
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(4) The duties imposed on a disability service
provider by this section are to be given effect to
having regard to the need to ensure that there is a
reasonable balance between the rights of residents
and the safety of all the residents in the residential
5
service.
59. Duties of residents
(1) A resident must--
(a) use the premises for residential purposes
only unless the resident has obtained the
10
consent in writing of the disability service
provider to the use by the resident of the
room for another purpose;
(b) pay the specified charges on the due date and
in the specified manner;
15
(c) maintain their room and any common areas
in a manner that does not create a fire, health
or safety hazard;
(d) notify the disability service provider of any
damage caused knowingly and intentionally
20
which is not the result of fair wear and tear;
(e) contribute to the cost of repairing damage
notified under paragraph (d).
(2) A resident must not--
(a) use the premises for a purpose that is illegal
25
at common law or under an Act;
(b) knowingly and intentionally do anything
which interferes with the right of other
residents to privacy or the proper use and
enjoyment of the premises;
30
(c) knowingly and intentionally damage or
destroy any part of the premises;
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(d) install any fixtures in the premises without
first obtaining the consent in writing of the
disability service provider.
60. Entry to a resident's room
(1) After giving the resident 24 hours notice in
5
writing of the intention to do so and the reason, a
disability service provider may enter a resident's
room--
(a) to undertake refurbishment, maintenance or
repairs or for the purpose of preparing for
10
refurbishment, maintenance or repairs;
(b) for the purpose of showing the room to a
prospective resident;
(c) for the purpose of showing the room to a
prospective buyer or lender because the
15
residential service is to be sold or used as
security for a loan;
(d) for valuation or insurance purposes.
(2) A disability service provider may enter a resident's
room without giving notice only if--
20
(a) the resident agrees to the entry at the time
entry is sought; or
(b) there is an emergency; or
(c) if the disability service provider believes on
reasonable grounds that entry is necessary to
25
protect the health or safety of the resident or
of any other person on the premises; or
(d) if the disability service provider believes on
reasonable grounds that the resident has
abandoned the room; or
30
(e) it is necessary to do so to undertake urgent
repairs; or
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(f) it is necessary to do so to provide support
services or to provide support as otherwise
specified in the resident's support plan; or
(g) entry is required to implement the resident's
behaviour management plan or treatment
5
plan.
(3) For the purposes of sub-section (2)(f), "support
services" means--
(a) assistance with one or more of the
following--
10
(i) health needs; or
(ii) bathing, showering or personal
hygiene; or
(iii) toileting; or
(iv) dressing or undressing; or
15
(v) meals; or
(b) physical assistance for persons with mobility
problems; or
(c) assistance for persons who are mobile but
require some form of supervision or
20
assistance; or
(d) development of independent living skills; or
(e) provision of developmental or emotional
support.
(4) This section does not affect the exercise of a right
25
of entry conferred on the Senior Practitioner, a
Community Visitor, the Disability Services
Commissioner or the Secretary by or under this
Act.
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61. Manner of entry
A disability service provider exercising a right of
entry under this Division--
(a) must do so in a reasonable manner; and
(b) must not stay in the room longer than is
5
necessary to achieve the purpose of the entry
without the resident's consent.
62. Offences relating to interference with rights
(1) Except in accordance with this Act, a person must
not--
10
(a) require or force or attempt to require or force
a resident to vacate his or her room; or
(b) take or attempt to take possession of a room
in which a resident resides.
Penalty: 20 penalty units.
15
(2) Except in accordance with this Act, a person must
not, for the purposes of causing a resident to
abandon a room--
(a) interfere with the proper use and enjoyment
by the resident of the room; or
20
(b) do any other act or thing intended or
designed to cause the resident to abandon the
room.
Penalty: 20 penalty units.
(3) This section does not apply to a restriction or
25
limitation to which section 58(2) applies.
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Division 2--Community Residential Units
63. Application of Division
This Division applies in respect of a community
residential unit in addition to any other provisions
that apply generally in respect of the provision of
5
residential services.
64. Declaration of residential service as a community
residential unit
(1) The Minister may by a notice published in the
Government Gazette declare a residential service
10
to be a community residential unit.
(2) If a residential service declared to be a community
residential unit is managed by the Secretary, the
Secretary is the disability service provider in
respect of that community residential unit for the
15
purposes of this Division.
65. Residential charge
(1) A disability service provider may charge a
residential charge for the provision to a resident of
residential services in a community residential
20
unit.
(2) The residential charge is to consist of an amount
for the components which are provided to the
resident in accordance with the residential
statement.
25
(3) The Secretary may make and publish guidelines
with respect to residential charges.
66. Notice of increase in residential charge
(1) A disability service provider must give at least
60 days notice in writing of a proposed increase in
30
the residential charge to a resident in a community
residential unit and the resident's guardian or the
resident's administrator, if any.
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(2) Subject to sub-section (3), a disability service
provider must not increase the rent component of
the residential charge payable by a resident at
intervals of less than 6 months.
(3) If a disability service provider provides an
5
additional service item to the resident at the
resident's request, the disability service provider
may increase the residential charge without
complying with this section if the amount of the
increase relates only to the services component.
10
(4) Any proposed increase in the residential charge
made in contravention of this section is invalid.
67. Limit on payment in advance
A disability service provider must not require a
resident to pay the residential charge more than
15
30 days in advance.
68. Method of payment
A resident may pay the residential charge in the
form agreed with the disability service provider.
20 Note: The form of payment may include cash, cheque,
electronic payment or direct debit.
69. Receipts for payment
(1) A disability service provider must give a written
receipt in accordance with this section to the
person making a payment of the residential
25
charge--
(a) immediately, if the payment is made in
person;
(b) if the payment is not made in person and a
written receipt is requested at the time the
30
payment is made, within 30 days of
receiving the payment.
Penalty: 10 penalty units.
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(2) A receipt under this section must--
(a) be signed by the disability service provider;
(b) state--
(i) the name of the resident;
(ii) the name of the disability service
5
provider;
(iii) the location of the community
residential unit;
(iv) the date the payment is received;
(v) the period in respect of which the
10
payment was made;
(vi) the amount paid;
(vii) whether the payment was made for the
rent component or the services
components or both components.
15
(3) If the payment is not made in person and a written
receipt is not requested, the disability service
provider must keep a record of the payment of a
residential charge until the earlier of--
(a) the end of 12 months after receiving the
20
payment; or
(b) if a resident requests a copy of the record
before the end of 12 months after making the
payment, the provision of a copy of the
record to the resident.
25
Penalty: 5 penalty units.
(4) The disability service provider must provide a
copy of a record requested in accordance with
sub-section (3)(b) within 30 days of receiving the
request.
30
Penalty: 5 penalty units.
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(5) For the purposes of sub-section (3), a record must
contain information which enables the details
specified in sub-section (2)(b) to be identified.
(6) The regulations may provide that a prescribed
class of disability service provider is exempted
5
from complying with sub-section (1), (2) or (3)
subject to any conditions which may be
prescribed.
70. Residential charge must be reduced if service items
are reduced
10
(1) If a disability service provider reduces the service
items provided in the services component
included in a residential charge, the disability
service provider must reduce the residential
charge by--
15
(a) the amount agreed between the disability
service provider and the resident; or
(b) if agreement cannot be reached, an amount
determined by VCAT on an application by
the disability service provider or the resident.
20
(2) In determining an amount under sub-section
(1)(b), VCAT must have regard to--
(a) what other residents in the community
residential unit are being charged for those
service items;
25
(b) guidelines issued by the Secretary for the
purposes of section 65.
(3) If VCAT determines an amount under sub-section
(1)(b), it may also order that--
(a) the reduction in the residential charge is to
30
take effect from the time the disability
service provider reduced the service items
provided to the resident;
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(b) the disability service provider is to refund to
the resident any excess residential charge
paid by the resident from the time the
disability service provider reduced the
service items provided to the resident until
5
the date of the order.
(4) In this section, a reduction in the service items
provided in the services component included in a
residential charge includes--
(a) a reduction of a service item by reducing the
10
level or range of services provided in that
item;
(b) a termination in the provision of a service
item.
71. Disputes relating to notice of increase in residential
15
charge
(1) If a resident has a dispute in respect of a notice of
increase in the residential charge, the resident may
apply to VCAT for a review of the decision of the
disability service provider to issue the notice of
20
increase in the residential charge.
(2) An application to VCAT under sub-section (1)
must be made within 28 days of the issue of the
notice of increase under section 66.
72. What can VCAT order on an application under
25
section 71?
(1) On an application made under section 71, VCAT
may--
(a) make an order declaring that the proposed
residential charge is excessive;
30
(b) make an order directing that for the period
specified in the order the residential charge
cannot exceed the amount specified in the
order;
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(c) make orders under paragraphs (a) and (b);
(d) dismiss the application.
(2) For the purposes of sub-section (1), VCAT must
have regard to--
(a) the amount paid by other residents in the
5
same premises for the rent component and
the service items provided in the services
component included in the proposed
residential charge;
(b) the amount payable by residents of similar
10
community residential units in similar
locations for similar premises and service
items provided in the services component;
(c) the state of repair and general condition of
the premises and the room;
15
(d) the number of increases in the preceding
24 months, the amount of each increase and
the timing of those increases;
(e) any changes in the condition of the room or
the service items provided in the services
20
component since the resident commenced
residency;
(f) any variation in the cost of providing the
service items provided in the services
component;
25
(g) any improvements made to the room that
should not result in an increase because they
were made by or on behalf of the resident;
(h) guidelines issued by the Secretary for the
purposes of section 65.
30
(3) For the purposes of sub-section (1)(a), a
residential charge is not to be considered to be
excessive if it does not exceed the relevant
prescribed amount.
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(4) An order cannot be made under sub-section (1)(b)
which specifies an amount that is less than the
amount which the resident was being charged
before notice of the proposed increase was given.
(5) For the purposes of sub-section (3), the
5
regulations may--
(a) prescribe relevant amounts as a percentage
of any specified pension payable under
Commonwealth law; and
(b) specify different relevant amounts which
10
may be charged for the rent component and
for service items provided in the services
component that can be included in a
residential charge.
73. Payment of increased amount pending VCAT
15
decision
(1) Pending the decision of VCAT under section 72,
the resident must pay, from the time the proposed
increase is to apply whichever is the lesser of--
(a) the increased residential charge specified in
20
the notice of increase under section 66; or
(b) 110% of the residential charge payable
immediately before the notice of increase
under section 66 was given.
(2) If VCAT makes an order under section 72, VCAT
25
may also make an order--
(a) requiring that any excess residential charge
paid by the resident from the time that the
increase took effect until the date of the
order be refunded; and
30
(b) specifying the procedure for the refund to the
resident.
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74. Notice of temporary relocation
(1) A disability service provider may give a resident a
written notice of temporary relocation from a
community residential unit if--
(a) the resident by act or omission endangers the
5
safety of other residents or staff of the
community residential unit;
(b) the resident is causing serious disruption to
the proper use and enjoyment of the premises
by other residents;
10
(c) the resident is a danger to themselves and the
disability service provider cannot continue to
support the resident in the community
residential unit;
(d) it is for the resident's safety or well-being;
15
(e) the resident has knowingly or intentionally
damaged the room or the premises;
(f) the resident has used the premises for a
purpose that is illegal at common law or
under an Act;
20
(g) the premises is not suitable for the provision
of disability services;
(h) the disability service provider intends to
repair the room immediately after the notice
of temporary relocation has effect and has
25
obtained all necessary permits and consents
to carry out the work and the work cannot be
properly carried out unless the resident
vacates the room;
(i) the level and kind of support services
30
provided in the community residential unit is
not appropriate to the needs of the resident
because of a change in the resident's support
needs.
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(2) A notice of temporary relocation--
(a) has effect immediately it is given or from the
time specified in the notice of temporary
relocation;
(b) must specify a relocation period ending not
5
more than 90 days after the date on which
the notice has effect.
(3) If--
(a) the proposed repairs will affect a resident's
room but will not affect all the rooms in a
10
community residential unit; and
(b) a room equivalent to the resident's room at
an equivalent residential charge is available
in the community residential unit--
the disability service provider must not give the
15
notice under sub-section (1)(h) unless the
disability service provider has first offered an
equivalent room to the resident and the resident
has refused to occupy that room in place of the
resident's current room.
20
(4) The disability service provider must notify the
Secretary and the Public Advocate of the details
of a notice of temporary relocation within
24 hours of the notice of temporary relocation
being given.
25
(5) During the relocation period specified under sub-
section (2), the resident is excluded from the room
or the community residential unit as specified in
the notice of temporary relocation and is to be
relocated by the disability service provider in
30
alternative accommodation.
(6) The disability service provider may seek the
assistance of the Secretary to obtain suitable
alternative accommodation for the resident who is
to be relocated.
35
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(7) Except as provided in sub-section (8), a disability
service provider must not use the room for another
resident during the relocation period specified in
the notice of temporary relocation.
(8) If the notice of temporary relocation was given on
5
a ground other than the ground specified in sub-
section (1)(h), the room may be used for respite or
emergency purposes only.
(9) At the expiry of a notice of temporary relocation,
a resident is entitled to return to the community
10
residential unit unless a notice to vacate has been
given under section 76.
(10) If the notice of temporary relocation was given on
a ground other than the ground specified in sub-
section (1)(h), the disability service provider must
15
ensure that if a review of the resident's support
plan has not been conducted in the period of
3 months before the notice of temporary
relocation was given, a review of the resident's
support plan is completed under section 54 before
20
the notice of temporary relocation expires.
(11) If the notice of temporary relocation was given on
a ground specified in sub-section (1)(a), (1)(b),
(1)(c), (1)(e) or (1)(f), the disability service
provider must ensure that--
25
(a) if a review of the resident's behaviour
management plan has not been conducted in
the period of 3 months before the notice of
temporary relocation was given, that a
review of the resident's behaviour
30
management plan is completed before the
notice of temporary relocation expires; or
(b) if the resident does not have a behaviour
management plan, that a behaviour
management plan is prepared before the
35
notice of temporary relocation expires.
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(12) During the period that a resident is relocated to
alternative accommodation, including another
community residential unit, the resident is to be
taken to be accommodated in emergency or
transitional housing and Division 2 does not apply
5
in respect of that accommodation.
(13) The disability service provider must take
reasonable steps to resolve the matter giving rise
to the issue of the notice of temporary relocation
as soon as is reasonably possible in the
10
circumstances.
(14) The taking of reasonable steps to resolve the
matter giving rise to the issue of the notice of
temporary relocation does not affect the continued
application of that matter as the ground for the
15
issue of the notice of temporary relocation.
75. Termination of residency
A residency in a community residential unit is
terminated--
(a) by agreement in writing between the
20
disability service provider and the resident;
(b) by a notice to vacate given to the resident by
the disability service provider in accordance
with section 76;
(c) by notice of intention to vacate given to
25
the disability service provider by, or on
behalf of, the resident in accordance with
section 80;
(d) if the resident dies;
(e) if the resident has abandoned the room;
30
(f) if the resident moves to another principal
place of residence without giving notice of
intention to vacate to the disability service
provider;
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(g) if the resident becomes subject to a criminal
order or a supervised treatment order which
prevents the resident from residing in the
premises for a period of more than 3 months;
(h) if VCAT makes an order terminating the
5
residency.
76. Notice to vacate by disability service provider
(1) A disability service provider may give a resident a
written notice to vacate a community residential
unit if--
10
(a) the resident by act or omission endangers the
safety of other residents or staff of the
community residential unit;
(b) the resident is causing serious disruption to
the proper use and enjoyment of the premises
15
by other residents;
(c) the resident is a danger to themselves and the
disability service provider cannot continue to
support the resident in the community
residential unit;
20
(d) it is for the resident's safety or well-being;
(e) the resident has knowingly or intentionally
damaged the room or the premises;
(f) the resident has used the premises for a
purpose that is illegal at common law or
25
under an Act;
(g) the resident has failed to pay the residential
charge;
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(h) the disability service provider intends to
repair, renovate, reconstruct or demolish the
premises immediately after the termination
date and has obtained all necessary permits
and consents to carry out the work and the
5
work cannot be properly carried out unless
the resident vacates the community
residential unit;
(i) disability services will not continue to be
provided at the premises;
10
(j) the premises is not suitable for the provision
of disability services;
(k) the level and kind of support services
provided in the community residential unit is
not appropriate to the needs of the resident
15
because of a change in the resident's support
needs;
(l) the premises is to be sold or offered for sale
with vacant possession;
(m) no reason is to be specified.
20
(2) A notice to vacate on a ground specified under
paragraph (a), (b), (c), (d), (e), (f), (j) or (k) of
sub-section (1)--
(a) cannot be given unless a temporary
relocation notice issued on any ground has
25
already been given at least 24 hours
previously; and
(b) may specify a termination date that is not
less than 28 days after the date on which the
notice is given.
30
(3) A notice to vacate on a ground specified under
paragraph (g), (h), (i) and (l) of sub-section (1)
may specify a termination date that is not less than
60 days after the date on which the notice is given.
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(4) A notice to vacate under paragraph (m) of sub-
section (1) may specify a termination date that is
not less than 120 days after the date on which the
notice is given.
(5) If--
5
(a) the proposed repairs, renovations or
reconstruction will affect a resident's room
but will not affect all the rooms in a
community residential unit; and
(b) a room equivalent to the resident's room at
10
an equivalent residential charge is available
in the community residential unit--
the disability service provider must not give the
notice under sub-section (1)(h) unless the
disability service provider has first offered an
15
equivalent room to the resident and the resident
has refused to occupy that room in place of the
resident's current room.
(6) A notice to vacate under this section--
(a) must specify the ground on which the notice
20
is given;
(b) must state the termination date in accordance
with this section;
(c) must be signed by the disability service
provider or their agent;
25
(d) may be addressed to the resident and to the
resident's guardian or the resident's
administrator, if any.
(7) The disability service provider must notify the
Secretary and the Public Advocate of the details
30
of a notice to vacate within 24 hours of the notice
to vacate being given.
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(8) For the purposes of sub-section (1)(k), "support
services" has the same meaning as it has in
section 60(3).
77. Effect of notice to vacate
(1) If a notice to vacate is issued while a notice of
5
temporary relocation is in force--
(a) the temporary notice to relocate continues in
force only until the end of the period of
notice applying to the notice to vacate;
(b) the disability service provider must continue
10
to provide alternative accommodation for the
resident until--
(i) the end of the period of notice applying
to the notice to vacate; or
(ii) if a review or appeal is lodged, until the
15
review or appeal is determined.
(2) Until the end of the relevant period under sub-
section (1)(b), the disability service provider
cannot accommodate another resident in the
vacancy in the room in the community residential
20
unit created by a notice of temporary relocation or
notice to vacate.
78. Notice of no effect
A notice to vacate given under section 76(1)(m) is
of no effect if it was given in response to the
25
exercise, or proposed exercise, by the resident of a
right under this Act.
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79. What if 2 or more notices can be given?
If a person is or becomes entitled to give 2 or
more notices of intention to vacate or notices to
vacate under this Division--
(a) the invalidity of any of the notices does not
5
affect the validity of any other notice; and
(b) each valid notice has full force and effect.
80. Notice of intention to vacate by resident
(1) A resident may give a notice of intention to vacate
to the disability service provider at any time.
10
(2) A notice of intention to vacate must--
(a) be given in writing;
(b) specify the date on which the resident
intends to vacate their room.
(3) A notice of intention to vacate may be given in
15
writing on behalf of the resident by the resident's
guardian or resident's administrator, if any.
(4) The disability service provider must notify the
Secretary of the details of a notice of intention to
vacate within 24 hours of the notice of intention to
20
vacate being received by the disability service
provider.
81. Withdrawal of notice
(1) A notice of temporary relocation, a notice to
vacate or a notice of intention to vacate can only
25
be withdrawn if a notice of withdrawal is given.
(2) A notice of withdrawal may be given at any time
before the resident has vacated the room.
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(3) A notice of withdrawal must be--
(a) in writing;
(b) signed by the person who gave the notice
that is being withdrawn;
(c) given to the person who was given the notice
5
that is being withdrawn.
82. Application to VCAT for review of notice to vacate
(1) A resident may apply to VCAT for a review of the
issue of a notice to vacate on the ground that the
notice to vacate is not valid because--
10
(a) of a defect on the face of the notice to
vacate; or
(b) the notice to vacate was not issued in
accordance with this Act; or
(c) the ground on which the notice was issued is
15
not established.
(2) An application to VCAT under sub-section (1)
must be made within 28 days of the day on which
the notice to vacate was received.
(3) On an application under this section, VCAT may
20
only determine whether or not the notice to vacate
is valid.
(4) VCAT may--
(a) if it determines that the notice to vacate is
valid, confirm the notice to vacate; or
25
(b) if it determines that the notice to vacate is
not valid, declare that the notice to vacate is
invalid; or
(c) dismiss the application.
(5) If sub-section (4)(a) applies, VCAT may make a
30
possession order in accordance with section 84.
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83. Application to VCAT for possession order
(1) A disability service provider may apply to VCAT
for a possession order for a room if the disability
service provider has given the resident a notice of
temporary relocation or a notice to vacate the
5
room.
(2) An application under sub-section (1) may be made
at any time after the notice of temporary
relocation or the notice to vacate is given but not
later than 30 days after the termination date
10
specified in the notice of temporary relocation or
the notice to vacate.
84. Possession orders
(1) VCAT must make a possession order under
section 82 or 83 requiring a resident to vacate the
15
room and community residential unit on the day
specified in the order if VCAT is satisfied that--
(a) the disability service provider was entitled to
give the notice of temporary relocation or the
notice to vacate; and
20
(b) the notice of temporary relocation or the
notice to vacate has not been withdrawn.
(2) The day specified in the order of VCAT under
sub-section (1) cannot be earlier than the
termination date specified in the notice of
25
temporary relocation or the notice to vacate.
(3) VCAT may dismiss or adjourn an application for
a possession order under section 83 if--
(a) the application is supported with a notice to
vacate under section 76(1)(g); and
30
(b) VCAT considers that satisfactory
arrangements have been or can be made to
avoid financial loss to the disability service
provider.
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(4) An adjournment may be on any terms VCAT
considers appropriate.
(5) On the resumption of an adjourned hearing,
VCAT--
(a) may make a possession order if the resident
5
has continued to accrue arrears of residential
charge during the adjournment period; and
(b) must dismiss the application if the resident--
(i) has paid all the arrears which were the
subject of the original application; and
10
(ii) has accrued no further arrears of
residential charge from the time of the
application to the date of resumption of
the adjourned hearing.
(6) A possession order must include--
15
(a) the day (being a day not more than 30 days
after the day on which the possession order
is made) by which the resident must vacate
the room and community residential unit;
and
20
(b) a direction to the resident to vacate the room
and community residential unit by the day
specified in the order; and
(c) a direction to the principal registrar to issue a
warrant of possession in accordance with
25
section 85 on the application of the person
who obtained the possession order.
(7) A possession order for a room in a community
residential unit must also include a warning that if
the resident fails to comply with the direction in
30
sub-section (6)(b), he or she may be forcibly
vacated from the room and community residential
unit by a member of the police force or an
authorised person carrying out a warrant of
possession.
35
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85. Issue of warrant of possession
(1) A person who obtains a possession order under
section 82 or 83 may apply to the principal
registrar for a warrant of possession--
(a) immediately if the possession order so
5
provides; or
(b) within 6 months after the date of the
possession order if the resident fails to
comply with the possession order.
(2) An application under this section must be
10
accompanied by the prescribed fee, if any.
(3) A warrant must be executed within the time stated
in the possession order which must not exceed
30 days after the date of issue of the warrant.
Division 3--Residential Institutions
15
86. Proclamation of residential institutions
(1) The Governor in Council may on the advice of the
Minister by a proclamation published in the
Government Gazette proclaim any premises used
to provide residential services to be a residential
20
institution.
(2) The institutions operated by the Department at the
commencement of this section and known as
Sandhurst, Colanda and Kew Residential Services
are deemed to have been proclaimed under this
25
section to be residential institutions.
87. Admission to residential institutions
(1) A person with an intellectual disability may be
admitted to a residential institution if the Secretary
is satisfied that--
30
(a) the person requires services which can be
provided by admission to the residential
institution; and
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(b) one or more of the criteria specified in sub-
section (2) applies to the person.
(2) The criteria is--
(a) admission to a residential institution
provides the best possible choice of services
5
for enhancing the person's independence and
self-sufficiency and is least likely to produce
regression, loss of skills or other harm to that
person; or
(b) admission to a residential institution is the
10
option which is the least restrictive of the
person as is possible in the circumstances; or
(c) unless the person is admitted to a residential
institution the person or any person with
whom he or she resides will suffer serious
15
physical or emotional harm.
(3) An admission to a residential institution is to be
for such period as the Secretary considers
appropriate.
(4) Sub-section (3) does not prevent the re-admission
20
of a person to a residential institution as often as is
necessary.
(5) Any person who is a resident in a residential
institution at the commencement of this section is
to be taken to have been admitted to a residential
25
institution under this section.
88. Review by VCAT
(1) A person may apply to VCAT for the review of a
decision to admit a person to a residential
institution under section 87 other than in
30
accordance with Part 8.
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(2) An application for review must be made within
28 days after the later of--
(a) the day on which the person is notified of the
decision; or
(b) if, under the Victorian Civil and
5
Administrative Tribunal Act 1998, the
person requests a statement of reasons for the
decision, the day on which the statement of
reasons is given to the person or the person is
informed under section 46(5) of that Act that
10
a statement of reasons will not be given.
(3) On an application under this section, VCAT must
determine the review having regard to the criteria
specified in sections 87(1) and 87(2).
(4) VCAT may--
15
(a) if it determines that the admission satisfies
the criteria specified in sections 87(1) and
87(2), confirm the admission and dismiss the
application; or
(b) if it determines that the admission does not
20
satisfy the criteria specified in sections 87(1)
and 87(2), make an order directing the
Secretary to move the person from the
residential institution within 28 days of the
date of the order.
25
(5) If sub-section (4)(b) applies, the Secretary must
obtain suitable alternative accommodation for the
person.
__________________
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Act No.
Part 6--Rights and Accountability
s. 89
PART 6--RIGHTS AND ACCOUNTABILITY
Division 1--Provision of Information
89. Disability service provider must provide
information
(1) A disability service provider must, as soon as a
5
person commences to use disability services,
provide the person with written information which
is relevant to the services provided by the
disability service provider to that person.
(2) For the purposes of this section, relevant
10
information includes information--
(a) about the disability services being provided
to that person and any associated costs;
(b) about conditions that may apply to the
disability services being provided to that
15
person;
(c) explaining the procedures for making a
complaint to the disability service provider
and to the Disability Services Commissioner;
(d) setting out legal rights, entitlements and
20
obligations under this Act;
(e) which the Secretary or the Senior
Practitioner by notice in writing may require;
(f) required to be provided in an order made by
VCAT.
25
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(3) If a person using disability services is a resident in
a residential service, a disability service provider
is not required to provide information under this
section if the information required by this section
is included in the residential statement required
5
under section 57.
(4) This section does not limit the information that a
disability service provider can provide.
Division 2--Provisions Relating to the Management of
Money
10
90. Management of money
(1) Except in accordance with this Division, a
disability service provider, or a person employed
by a disability service provider, must not act as a
financial administrator for a person with a
15
disability provided with disability services by that
disability service provider.
Penalty: 60 penalty units.
(2) Sub-section (1) does not apply if the disability
service provider is the Secretary providing a
20
service in the performance of a function or the
exercise of a power in accordance with another
Act.
91. Residents' Trust Fund
(1) The Residents' Trust Fund established under
25
section 45 of the Intellectually Disabled
Persons' Services Act 1986 is continued under
this Act.
(2) The Secretary must maintain the Residents' Trust
Fund for money held in trust on behalf of a
30
resident in a residential service.
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(3) The money in the Residents' Trust Fund must be
held in one or more of the following ways--
(a) in an account or accounts at an authorised
deposit-taking institution in the name of the
Secretary;
5
(b) as an investment or investments in
accordance with section 94;
(c) as cash in a secure place at a residential
service.
(4) The Secretary must ensure that money is only held
10
under sub-section (3)(c) to cover likely
withdrawals from the Residents' Trust Fund and
that the amount held does not exceed the limit
specified by the Secretary.
92. Money to be paid into the Residents' Trust Fund by
15
the Secretary
The Secretary must ensure that there is paid into
the Residents' Trust Fund as soon as is
practicable--
(a) any money that is received by any officer or
20
employee of the Department from, or on
behalf of, a person with a disability residing
at a residential service for the benefit or use
of the person with a disability; and
(b) all income earned on any money in the
25
Residents' Trust Fund.
93. Management of money of a resident
(1) A disability service provider providing residential
services may manage or control an amount of
money of a resident, being not greater than the
30
prescribed amount, if the disability service
provider has written consent to do so from the
resident or the resident's guardian or the resident's
administrator.
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(2) If at any time the amount of the money of a
resident held by a disability service provider under
sub-section (1) exceeds the prescribed amount and
the money of the resident is not to be used within
the next 14 days, the money must be--
5
(a) held on trust on behalf of the resident; and
(b) deposited in a trust account until it is dealt
with on behalf of the resident.
Penalty: 60 penalty units.
(3) If a disability service provider providing
10
residential services manages or controls the
money of a resident, the disability service
provider must--
(a) keep a copy of the consent for that
management or control;
15
(b) keep the money of the resident in a secure
place;
(c) maintain an accurate and up to date financial
management system which provides a record
of--
20
(i) the money of the resident;
(ii) the receipt and expenditure by the
disability service provider of the money
of the resident;
(iii) any investment of the money of the
25
resident;
(d) ensure that records kept under paragraph (c)
individually itemise each transaction made
on behalf of the resident.
Penalty: 60 penalty units.
30
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(4) A disability service provider who manages or
controls the money of a resident must provide a
statement at the end of each month to the resident
or the resident's guardian or the resident's
administrator specifying--
5
(a) the current balance held on behalf of the
resident;
(b) any income received and expenditure
incurred on behalf of the resident since the
previous statement;
10
(c) the current status of any liabilities incurred
on behalf of the resident.
Penalty: 60 penalty units.
(5) The disability service provider must, upon
request, give access to the resident's financial
15
records held by the disability service provider to
the resident or the resident's guardian or the
resident's administrator.
Penalty: 60 penalty units.
(6) The disability service provider or a person
20
employed by the disability service provider must
not accept appointment as a resident's guardian or
resident's administrator in respect of any resident
of the residential service.
Penalty: 60 penalty units.
25
(7) In this section, "money of a resident" does not
include money--
(a) payable to the disability service provider in
relation to services provided by the disability
service provider; or
30
(b) paid by the Secretary to a person to purchase
disability services to be provided to the
resident.
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94. Investment of money
(1) The Secretary may invest any money in the
Residents' Trust Fund that is not immediately
required for use.
(2) A disability service provider, other than the
5
Secretary, may invest any money held on behalf
of a resident that is not immediately required for
use by the resident.
(3) Money invested under this section may be
invested in any manner in which money may be
10
invested under the Trustee Act 1958.
95. Limit on amount held
(1) The amount standing to the credit of a resident in
that person's trust account must not exceed the
amount prescribed for the purposes of this section.
15
(2) If the Secretary or the disability service provider
considers that an amount to be credited to a
person's trust account will result in the amount
standing to the credit of the person exceeding the
amount prescribed under sub-section (1), the
20
Secretary or the disability service provider must
advise the person, or arrange for the person or the
person's representative to be advised, to invest the
money in an appropriate manner.
96. Trust money must be paid when person leaves
25
(1) When a person ceases to reside at a residential
service, the Secretary must pay all money
standing to the credit of the person in the
Residents' Trust Fund to the person or the person's
representative.
30
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(2) When a person ceases to reside at a residential
service, the disability service provider must pay
all money standing to the credit of the person in
any trust account kept in respect of the person by
the disability service provider to the person or the
5
person's representative.
Division 3--Standards and Monitoring of Performance
97. Minister must determine standards
(1) The Minister must determine standards to be met
by disability service providers in the provision of
10
disability services under this Act.
(2) Without limiting the generality of sub-section (1),
a determination made under sub-section (1) may
specify standards in respect of the provision of
disability services including with respect to--
15
(a) service delivery;
(b) support plans;
(c) complaints management;
(d) information management and privacy and
confidentiality.
20
(3) Standards specified for the purposes of sub-
section (2)(d) must not be lower than the
standards that would apply if the Health Records
Act 2001 and the Information Privacy Act 2000
applied in respect of the provision of disability
25
services by disability service providers.
(4) The Minister must ensure that a determination
made under sub-section (1) is published in the
Government Gazette.
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(5) A determination made under sub-section (1)--
(a) has effect--
(i) on the day that is 30 days after the day
that the determination is published in
the Government Gazette; or
5
(ii) on any later day specified in the
determination;
(b) may be amended or revoked by another
determination made in accordance with this
section.
10
(6) A disability service provider must comply with
the relevant standards applicable to the disability
service provider.
Penalty: 60 penalty units.
98. Secretary to specify performance measures and
15
monitor performance
(1) The Secretary must by notice published in the
Government Gazette specify in respect of
standards determined under section 97 different
performance measures for different categories of
20
disability service providers and different
categories of disability services.
(2) The Secretary may monitor the compliance of a
disability service provider with the relevant
performance measures in respect of the standards.
25
(3) For the purposes of this section, the Secretary may
in writing authorise a person or body as an
assessor to conduct an independent review of the
compliance of the disability service provider with
relevant performance measures.
30
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(4) A disability service provider must ensure that an
assessor authorised under sub-section (3) is
provided with reasonable assistance and access to
enable the assessor to conduct the independent
review.
5
Penalty: 60 penalty units.
99. Power of Secretary to give directions
(1) This section applies if the Secretary considers that
a disability service provider has breached or failed
to comply with--
10
(a) any relevant performance measure under
section 98; or
(b) any condition subject to which funding for
the disability service is provided by the
Secretary under section 9 or 10; or
15
(c) this Act or any other requirement made in
accordance with this Act.
(2) If this section applies, the Secretary may by notice
in writing direct the disability service provider--
(a) to remedy the breach or comply with the
20
relevant performance measure, condition or
requirement within the period specified in
the direction; or
(b) to provide the disability service in
accordance with conditions specified in the
25
notice.
(3) A direction under sub-section (2)(a) may include
advice as to measures to be taken to remedy the
breach or comply with the condition or
requirement.
30
(4) A disability service provider must comply with a
direction given under sub-section (2).
Penalty: 60 penalty units.
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100. Further powers of Secretary
(1) This section applies if the Secretary considers that
a disability service provider has failed to comply
with a direction under section 99.
(2) If this section applies, the Secretary may--
5
(a) stop any payments under section 9 or 10
until the breach is remedied or the condition
complied with; or
(b) terminate the contract; or
(c) take action to remove the committee of
10
management of the disability service
provider in accordance with the legislation
under which the committee of management
was appointed.
Division 4--Appointment of Administrator
15
101. Displacement of other laws
(1) The provisions of this Division are declared to be
Corporations legislation displacement provisions
for the purposes of section 5G of the Corporations
Act in relation to the provisions of Chapter 5 of
20
that Act.
Note: Section 5G of the Corporations Act provides that if a
State law declares a provision of a State law to be a
Corporations legislation displacement provision for
25 the purposes of that section, any provision of the
Corporations legislation with which the State
provision would otherwise be inconsistent does not
operate to the extent necessary to avoid the
inconsistency.
(2) This Division applies despite anything to the
30
contrary in the Co-operatives Act 1996 and the
Associations Incorporation Act 1981 or any
other Act establishing a body that is a disability
service provider under this Act.
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102. Appointment of administrator
(1) This section applies if in the opinion of the
Minister a disability service provider--
(a) is inefficiently or incompetently managed; or
(b) has breached or failed to comply with a
5
relevant standard under section 97; or
(c) has breached or failed to comply with any
condition subject to which funding is
provided by the Secretary under section 9
or 10; or
10
(d) has requested the Minister to appoint a
person as administrator to take over the
functions of the disability service provider
under this Act or under a contract or
agreement under this Act.
15
(2) If this section applies, the Governor in Council
may, on the recommendation of the Minister, by
Order in Council published in the Government
Gazette appoint a person as administrator to take
over the functions of the disability service
20
provider under this Act or under a contract or
agreement under this Act.
(3) If the request has been made under sub-section
(1)(a), (1)(b) or (1)(c), the Minister must not make
a recommendation under sub-section (2) unless
25
the Minister--
(a) has given reasonable notice in the
circumstances to the disability service
provider specifying in writing--
(i) the ground on which it is intended to
30
make a recommendation to appoint an
administrator; and
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(ii) the extent to which the Minister
considers it is necessary for the purpose
of performing functions under this Act
or under a contract or agreement under
this Act for the administrator to replace
5
the committee of management or other
governing body; and
(iii) that the disability service provider may
object in writing within the period
specified in the notice and may request
10
to be represented at a hearing into the
objection; and
(b) has considered any objection made under
paragraph (a).
(4) An administrator appointed under this section--
15
(a) is deemed to be the committee of
management or other governing body of the
disability service provider to the extent that
the Minister considers necessary for the
purpose of performing functions under this
20
Act or under a contract or agreement under
this Act; and
(b) for the purposes of those functions has all the
powers and may exercise any of the duties of
the committee of management or other
25
governing body or its members; and
(c) is subject to all the duties of the committee
of management or other governing body or
its members.
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(5) On the day on which an administrator is appointed
under this section in respect of a disability service
provider for the purposes of its functions under
this Act or under a contract or agreement under
this Act, the members of the committee of
5
management or other governing body cease to
constitute the committee of management or other
governing body to the extent that the administrator
is deemed to be the committee of management or
other governing body.
10
(6) If an administrator is appointed in respect of part
of the business of the disability service provider,
the administrator and the committee of
management or other governing body must ensure
that there is in place a process for consultation and
15
decision-making to enable the continuity of
operation of the whole of the business of the
disability service provider.
(7) If an administrator appointed under this section
recommends that a contract under section 10 with
20
a disability service provider should be terminated,
the Secretary may terminate that contract with
immediate effect.
(8) The salary of the administrator and any expenses
of the administrator necessarily incurred in an
25
administration under this section are to be paid by
the Secretary.
(9) The Governor in Council may, on the
recommendation of the Minister, by Order in
Council published in the Government Gazette
30
extend the appointment of an administrator
appointed under this section for a further period as
is specified in the Order in Council.
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(10) The Governor in Council may by Order in
Council published in the Government Gazette
declare that on the day specified in the Order in
Council--
(a) the committee of management or other
5
governing body is re-instated as the
committee of management or governing
body of the disability service provider, or if
its members ceased to hold office, is to be
re-established by appointment or election as
10
the case may be; and
(b) the administrator ceases to be the
administrator.
103. Additional provisions if disability service provider is
providing residential services
15
(1) This section applies if an administrator is
appointed under section 102 in respect of a
disability service provider providing residential
services.
(2) If this section applies, while the appointment of an
20
administrator has effect, an administrator, in the
name of, or as agent of, the disability service
provider, may do any thing necessary or desirable
for the purpose of carrying out his or her function
as an administrator in respect of the residential
25
service.
(3) Without limiting the generality of sub-section (2),
the administrator may--
(a) enter and occupy the residential service;
(b) manage and operate the residential service;
30
(c) put into place a financial management
system in relation to the residential service
including--
(i) receiving residential charges from or on
behalf of a resident;
35
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(ii) receiving money from or on behalf of a
resident as an allowance for a resident
and appropriately distributing that
money to the resident or using it for the
benefit of the resident;
5
(iii) establishing and maintaining a trust
account with a financial institution into
which money received from or on
behalf of residents may be paid;
(iv) making payments in relation to the
10
exercise of any power referred to in this
section;
(d) inspect and take possession of any document
in connection with the operation and
management of the residential service;
15
(e) use, repair or replace any equipment or
facilities in the residential service;
(f) prepare and distribute to the residents for
consumption any food stored at the
residential service;
20
(g) enter into or renew any contract for the
provision of goods or services or any lease
contract or any contract of insurance in
relation to the operation and management of
the residential service;
25
(h) engage additional members of staff to work
at the residential service.
(4) In carrying out his or her function as an
administrator in respect of the residential service
and in exercising a power under this section, an
30
administrator must comply with--
(a) any direction given by the Secretary; and
(b) any guidelines issued by the Secretary in
relation to administrators of residential
services.
35
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(5) If a person is appointed as administrator of a
residential service any contract, agreement or
arrangement for the provision of equipment or
services or the use of premises for the purposes of
carrying on the disability service continues in
5
force despite the appointment.
(6) If a person is appointed as administrator of a
residential service, a person must not, without the
consent of the administrator, remove from the
residential service any equipment or other
10
property (whether or not owned by the disability
service provider) which is reasonably necessary
for the proper and efficient functioning of the
disability service.
Penalty: 120 penalty units.
15
(7) A person who suffers loss as a result of--
(a) the appointment of an administrator; and
(b) the operation of sub-section (5) or (6)--
is entitled to be paid the amount of compensation
as the Minister, on the recommendation of the
20
Secretary, determines.
(8) Any liability of the Secretary under this section is
to be paid from the Consolidated Fund which is
hereby to the necessary extent appropriated
accordingly.
25
(9) A person who is or has been the disability service
provider of a residential service of which an
administrator has been appointed is liable to pay
to the Secretary the amount determined by the
Secretary as the amount of costs incurred--
30
(a) in connection with the appointment of the
administrator; or
(b) by the administrator in connection with the
carrying on of the disability service.
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(10) If a person has been appointed as an administrator
of a residential service under this section, a
resident of the residential service may make
payments of residential charges to the
administrator.
5
Division 5--Complaints to Disability Service Providers
104. Internal process for complaints
A disability service provider must institute and
operate a system to receive and resolve complaints
received by the disability service provider in
10
respect of disability services provided by the
disability service provider.
Penalty: 120 penalty units.
105. Report on complaints
A disability service provider must report annually
15
to the Disability Services Commissioner in the
form required by the Disability Services
Commissioner specifying the number of
complaints received and how the complaints were
resolved.
20
106. Duty of disability service provider to take all
reasonable steps
A disability service provider must take all
reasonable steps to ensure that a person with a
disability is not adversely affected because a
25
complaint has been made by them or on their
behalf.
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Division 6--Complaints to Disability Services Commissioner
107. Purpose of Division
The purpose of this Division is to provide for an
independent and accessible process for dealing
with complaints about the provision of services by
5
disability service providers.
108. Application of Division
This Division does not apply to a complaint about
a matter that could be the subject of a complaint
to--
10
(a) the Health Services Commissioner under the
Health Records Act 2001; or
(b) the Privacy Commissioner under the
Information Privacy Act 2000.
109. What matters can be the subject of a complaint?
15
A complaint may be made to the Disability
Services Commissioner if the complaint--
(a) arises out of the provision of a disability
service; or
(b) is that a disability service provider has acted
20
unreasonably by not properly investigating,
or not taking proper action upon, a complaint
made to the disability service provider.
110. Who may make a complaint?
Any person may make a complaint to the
25
Disability Services Commissioner.
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111. How do you make a complaint?
(1) A person may make a complaint to the Disability
Services Commissioner--
(a) orally; or
(b) in writing; or
5
(c) by any other means which is appropriate in
the circumstances.
(2) If the Disability Services Commissioner receives
an oral complaint, the Disability Services
Commissioner must require the person who made
10
the complaint to confirm the complaint in writing
unless the Disability Services Commissioner is
satisfied that there is good reason why the
complaint should not be confirmed in writing.
(3) The Disability Services Commissioner may
15
require a person who makes a complaint to the
Disability Services Commissioner to give more
information about the complaint in a form and
within a time fixed by the Disability Services
Commissioner.
20
(4) Subject to sub-section (6), a person who
complains to the Disability Services
Commissioner must give their name and any other
information relating to their identity as the
Disability Services Commissioner may require.
25
(5) The Disability Services Commissioner may
determine to keep information given to the
Disability Services Commissioner under sub-
section (4) confidential if the Disability Services
Commissioner considers that--
30
(a) there are special circumstances; and
(b) it is in the complainant's interest to keep the
information confidential.
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(6) The Disability Services Commissioner may
determine to consider a complaint despite the
person making the complaint refusing to comply
with sub-section (4) if the Disability Services
Commissioner is satisfied that the complaint
5
requires investigation.
(7) If sub-section (6) applies, the Disability Services
Commissioner is not required to comply with any
provision of this Division requiring notice of any
matter to be given to the person making the
10
complaint unless the Disability Services
Commissioner becomes aware of the identity of
the person who made the complaint.
(8) It is the duty of the Disability Services
Commissioner to provide appropriate assistance to
15
a person who wishes to make a complaint and
requires assistance to formulate the complaint.
112. Withdrawal of complaint
(1) The person who made a complaint to the
Disability Services Commissioner may at any
20
time withdraw the complaint by notifying the
Disability Services Commissioner.
(2) Subject to sub-section (3), if the Disability
Services Commissioner is notified under sub-
section (1), the Disability Services Commissioner
25
must then stop dealing with the complaint.
(3) The Disability Services Commissioner may
continue to investigate a complaint despite the
complaint being withdrawn under sub-section (1)
if the Disability Services Commissioner considers
30
that--
(a) the health, safety or welfare of the person
accessing the disability service may be
affected; or
(b) the complaint may have been withdrawn due
35
to victimisation, coercion or duress.
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113. Preliminary assessment of complaint
(1) The Disability Services Commissioner must
within the specified period decide whether to
consider the complaint.
(2) For the purpose of making a decision under sub-
5
section (1), the Disability Services Commissioner
may by written notice invite a person to--
(a) attend before the Disability Services
Commissioner to discuss the complaint; or
(b) produce a document specified in the notice.
10
(3) The Disability Services Commissioner may
attempt to resolve the complaint informally if the
Disability Services Commissioner considers it
appropriate to do so.
(4) For the purposes of sub-section (1), "specified
15
period" means--
(a) the period of 28 days; or
(b) a period as the Disability Services
Commissioner considers reasonable not
exceeding 90 days--
20
after the complaint is received by the Disability
Services Commissioner.
114. Circumstances in which the Disability Services
Commissioner may decline to consider a complaint
(1) The Disability Services Commissioner may
25
decline to consider a complaint if--
(a) the person has not complied with a
requirement under section 111; or
(b) the Disability Services Commissioner
considers that the complaint--
30
(i) is frivolous; or
(ii) is vexatious; or
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(iii) is misconceived; or
(iv) is lacking in substance; or
(v) does not warrant investigation; or
(c) the complaint has already been determined
by a court, board or tribunal and does not
5
raise any matter or issue that was not
considered in that determination; or
(d) the complaint is being considered by a court,
board or tribunal; or
(e) the complaint relates to an incident which
10
occurred more than 12 months before the
complaint is made and the Disability
Services Commissioner considers the person
who made the complaint has not shown a
good reason for the delay; or
15
(f) the Disability Services Commissioner
considers that the Disability Services
Commissioner does not have the jurisdiction
to consider the complaint under this Act; or
(g) the Disability Services Commissioner
20
considers that the complaint raises issues
which require investigation by another
person, court, board or tribunal.
(2) If sub-section (1)(f) or (1)(g) applies, the
Disability Services Commissioner may refer the
25
complaint and any relevant information to the
person, court, board or tribunal which the
Disability Services Commissioner considers has
power to resolve or deal with the matter.
(3) Unless sub-section (4) applies, the Disability
30
Services Commissioner must not conciliate or
investigate a complaint unless the Disability
Services Commissioner is satisfied that all
reasonable steps have been taken to resolve the
matter with the disability service provider.
35
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(4) Despite sub-section (3), the Disability Services
Commissioner may refer a complaint for
conciliation or investigate a complaint if the
Disability Services Commissioner considers that if
he or she does not do so--
5
(a) the health, safety or welfare of the person
accessing the disability service may be
affected; or
(b) there is a risk that the person accessing the
disability service may be victimised or
10
intimidated because the matter has been
raised with the disability service provider.
115. Notice of decision to consider or not to consider
complaint
(1) Within 14 days of deciding not to consider a
15
complaint, the Disability Services Commissioner
must give written notice of the decision to the
person who made the complaint.
(2) Unless section 120 applies, within 14 days after
deciding to consider a complaint, the Disability
20
Services Commissioner must give written notice
of the decision to the disability service provider
concerned.
116. Consideration of complaint suitable for conciliation
(1) If--
25
(a) the Disability Services Commissioner
decides to consider a complaint in whole or
in part; and
(b) the Disability Services Commissioner
considers that the complaint is suitable for
30
conciliation--
the Disability Services Commissioner must make
all reasonable endeavours to conciliate the
complaint.
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(2) The purpose of conciliation is to encourage the
settlement of the complaint by--
(a) arranging for the disability service provider
and the person who made the complaint to
hold informal discussions about the
5
complaint; and
(b) facilitating those discussions; and
(c) if possible, assisting the disability service
provider and the person who made the
complaint to reach agreement.
10
(3) Unless section 120 applies, within 14 days after
the Disability Services Commissioner decides to
conciliate the complaint, the Disability Services
Commissioner must--
(a) give written notice of the decision to
15
conciliate the complaint to the disability
service provider and the person who made
the complaint; and
(b) include in the notice details of the
arrangements made for conciliation
20
discussions between the disability service
provider and the person who made the
complaint; and
(c) state in the notice that a disability service
provider may make submissions for the
25
conciliation to the Disability Services
Commissioner.
(4) The Disability Services Commissioner may
require the person who made the complaint and
the disability service provider to attend a
30
conciliation either personally or by a
representative who has authority to settle the
matter on their behalf.
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(5) If agreement with respect to the subject matter of
the complaint is reached following the
conciliation, the person who made the complaint
or the disability service provider may within
30 days after agreement is reached request a
5
written record of the conciliation agreement.
(6) If a written record of the conciliation agreement is
requested--
(a) the Disability Services Commissioner must
prepare the record;
10
(b) the record must be signed by or on behalf of
the person who made the complaint and the
disability service provider;
(c) the Disability Services Commissioner
must certify the record signed under
15
paragraph (b);
(d) the Disability Services Commissioner must
give a copy of the certified record to the
person who made the complaint and the
disability service provider.
20
(7) Evidence of anything said or admitted during the
conciliation process is not admissible in
proceedings before a court or tribunal.
117. Dealing with a complaint
(1) The Disability Services Commissioner may stop
25
dealing with a complaint if the Disability Services
Commissioner is of the view that--
(a) the complaint cannot be conciliated; or
(b) no further action is warranted.
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(2) If a person who made a complaint and the
disability service provider have resolved the
matter by agreement and the Disability Services
Commissioner becomes aware that the complaint
has been resolved, the Disability Services
5
Commissioner must stop dealing with the
complaint under this Division unless the
Disability Services Commissioner considers that
the person making the complaint has been
subjected to victimisation, coercion or duress.
10
(3) At any time after the Disability Services
Commissioner has received a complaint, the
person who made it and the disability service
provider may resolve the matter by agreement,
whether through the conciliation process or not.
15
(4) If the person who made a complaint and the
disability service provider resolve the matter by
agreement, the person who made the complaint
must without delay give notice of the fact to the
Disability Services Commissioner.
20
(5) The Disability Services Commissioner may
re-open any complaint that the Disability Services
Commissioner has stopped dealing with under
sub-section (1) if--
(a) the person who made the complaint has
25
provided new or additional information; and
(b) the Disability Services Commissioner
considers that the person who made the
complaint is able to show good reason as to
why the information was not previously
30
provided.
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118. Investigation of a complaint
(1) The Disability Services Commissioner must--
(a) investigate a complaint which--
(i) the Disability Services Commissioner
has decided to accept and the Disability
5
Services Commissioner considers is not
suitable for conciliation; or
(ii) the Disability Services Commissioner is
of the view that conciliation has failed
and further action is required; and
10
(b) decide whether or not the complaint is
justified.
(2) Unless section 120 applies, within 14 days after
starting to investigate a complaint the Disability
Services Commissioner must give written notice
15
of the investigation and details of the complaint to
the disability service provider concerned.
(3) In conducting an investigation--
(a) the procedure is in the discretion of the
Disability Services Commissioner;
20
(b) the Disability Services Commissioner must
proceed with as little formality and
technicality and with as much expedition as
the requirements of this Act and proper
investigation of the matter permit;
25
(c) the Disability Services Commissioner is not
bound by the rules of evidence but may be
informed of any matter in any manner the
Disability Services Commissioner considers
appropriate;
30
(d) the Disability Services Commissioner is
bound by the rules of natural justice.
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(4) If--
(a) the Disability Services Commissioner
considers that the person who made the
complaint and the disability service provider
cannot resolve the complaint; and
5
(b) after investigating the complaint the
Disability Services Commissioner
determines that the complaint is justified--
the Disability Services Commissioner must decide
what action should be taken to remedy the
10
complaint.
(5) If the Disability Services Commissioner
determines that a complaint is justified, the
Disability Services Commissioner must give the
appropriate notice under section 119.
15
(6) The Disability Services Commissioner must not
determine whether a complaint is justified or what
action is to be taken in a way which conflicts with
the provisions of any Act or subordinate
instrument or any rule of law or practice.
20
(7) The Disability Services Commissioner must in
determining whether a complaint is justified or
what action is to be taken have regard to the
impact on the disability service provider and any
other person accessing the services of the
25
disability service provider who may be affected.
(8) If, in the course of investigating a complaint, the
Disability Services Commissioner determines the
complaint is suitable for conciliation, the
Disability Services Commissioner must make all
30
reasonable endeavours to conciliate the complaint
in accordance with section 116.
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119. Notice of decision and procedures
(1) Within 14 days after deciding whether or not a
complaint is justified the Disability Services
Commissioner must--
(a) give written notice of the decision to the
5
person who made the complaint and the
disability service provider; and
(b) include in the written notice the reasons for
the decision; and
(c) if the Disability Services Commissioner
10
decides that the complaint is justified,
specify in the written notice any action
which the Disability Services Commissioner
considers ought to be taken to remedy the
complaint.
15
(2) A written notice under sub-section (1) must also
advise the person who made the complaint and the
disability service provider that the Disability
Services Commissioner may conduct an inquiry
into what action the disability service provider has
20
taken upon the complaint.
(3) A disability service provider must--
(a) within 45 days after receiving a written
notice under sub-section (1); or
(b) before the end of any extension of time not
25
exceeding 15 days granted by the Disability
Services Commissioner under sub-
section (5)--
report in writing to the Disability Services
Commissioner about what action the disability
30
service provider has taken upon the complaint.
Penalty: 60 penalty units.
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(4) Within the 45 day period mentioned in sub-
section (3) or a period specified in a written notice
given under sub-section (6), a disability service
provider may request the Disability Services
Commissioner to extend the time within which the
5
disability service provider must report or produce
information to the Disability Services
Commissioner.
(5) The Disability Services Commissioner may on a
request under sub-section (4) extend the time
10
within which the disability service provider must
report or produce information by no more than
15 days.
(6) At the end of the relevant period under sub-
section (3), the Disability Services Commissioner
15
may, by notice in writing, require a disability
service provider to produce to the Disability
Services Commissioner information about what
action the disability service provider has taken
upon the complaint, including action to remedy
20
the complaint within the period specified in the
notice.
(7) The Disability Services Commissioner may
require a disability service provider to produce
information by a notice given under sub-
25
section (6)--
(a) in addition to any report received by the
Disability Services Commissioner under sub-
section (3) or even if no report has been
received under sub-section (3); and
30
(b) any number of times until the Disability
Services Commissioner is satisfied that the
disability service provider has taken
appropriate action to remedy the complaint.
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(8) A disability service provider must comply with a
notice given under sub-section (6) within the
period specified in the notice.
Penalty: 60 penalty units.
(9) The Disability Services Commissioner may
5
conduct an inquiry into what action the disability
service provider has taken upon a complaint,
including action taken to remedy the complaint,
following a notice of a decision under sub-
section (6) requiring action to be taken.
10
(10) Section 118 applies for the purposes of the
conduct of an inquiry by the Disability Services
Commissioner under sub-section (9) as if the
inquiry were an investigation.
120. Circumstances in which notice is not to be given
15
(1) The Disability Services Commissioner need not
comply with section 115(2), 116(3) or 118(2) if
the Disability Services Commissioner considers
that if a notice or document under that section is
given to a disability service provider--
20
(a) the health, safety or welfare of the person
accessing the disability service may be
affected; or
(b) the proper investigation of the complaint
would be prejudiced.
25
(2) If sub-section (1) applies, the Disability Services
Commissioner must give written notice to the
disability service provider without delay after the
Disability Services Commissioner is satisfied
that--
30
(a) the risk is at an end; or
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(b) there is no further likelihood of prejudice to
the proper investigation of the complaint--
but in any case not later than 6 months after the
complaint was made or, if the investigation ends
before that time, before the end of the
5
investigation.
121. Duty to stop proceedings
(1) The Disability Services Commissioner must stop
dealing with an issue raised in a complaint if--
(a) the Disability Services Commissioner
10
becomes aware that the person who made the
complaint or the disability service provider
has begun legal proceedings which relate to
that issue; or
(b) the Disability Services Commissioner
15
becomes aware that proceedings relating to
that specific issue have been initiated before
the Australian Industrial Relations
Commission; or
(c) the Disability Services Commissioner
20
considers that the issue should properly be
dealt with by a court or VCAT.
(2) Within 14 days after the Disability Services
Commissioner stops dealing with a complaint
under sub-section (1), the Disability Services
25
Commissioner must give written notice that the
Disability Services Commissioner has stopped
dealing with the complaint to the person who
made the complaint and the disability service
provider.
30
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(3) Despite sub-section (1)(a), the Disability Services
Commissioner may, with the consent of--
(a) the person who made the complaint; and
(b) the disability service provider--
continue dealing with the matter, but only by
5
conciliation.
(4) If sub-section (3) applies, the Disability Services
Commissioner must stop dealing with the matter
when the Disability Services Commissioner
becomes aware that a court has commenced to
10
hear a proceeding relating to the complaint.
(5) If sub-section (1)(a) applies and the Disability
Services Commissioner subsequently becomes
aware that the legal proceedings relating to the
complaint have been withdrawn, the Disability
15
Services Commissioner may on the request of the
person who made the complaint re-open
proceedings under this Division.
122. Powers to compel attendance and call for evidence
and documents
20
Sections 14, 15 and 16 of the Evidence Act 1958
apply to--
(a) any inquiry by the Disability Services
Commissioner into matters referred to the
Disability Services Commissioner by the
25
Minister;
(b) the investigation of a complaint by the
Disability Services Commissioner;
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(c) any inquiry by the Disability Services
Commissioner into actions taken by a
provider following a notice of a decision
under section 119(1) requiring action to be
taken--
5
as if the Disability Services Commissioner were a
board appointed by the Governor in Council.
123. Restrictions on powers
(1) The Disability Services Commissioner cannot
exercise the powers under section 122 while a
10
complaint is being conciliated.
(2) Nothing in section 122 or the provisions of the
Evidence Act 1958 applied by that section
prevents a person from--
(a) refusing to answer a question or produce a
15
document because the answer would relate
to, or the document contains, information in
respect of which the person claims legal
professional privilege; or
(b) refusing to answer a question or produce a
20
document if the answer, or the information in
the document, would tend to incriminate the
person.
124. Warrants
(1) The Disability Services Commissioner may apply
25
to a magistrate for a warrant to be issued under
this section in respect of premises.
(2) An application for a warrant--
(a) must be in writing; and
(b) must set out the grounds for seeking the
30
warrant; and
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(c) must describe the premises which are to be
entered; and
(d) must give a general description of the class
of persons living at the premises (if any)
whom it is proposed to examine.
5
(3) A magistrate may require the Disability Services
Commissioner to give more information about an
application for a warrant.
(4) A magistrate to whom an application is made
under this section must refuse it if the application
10
does not comply with this section or if, when
required to do so by the magistrate, the Disability
Services Commissioner does not give to the
magistrate more information about the
application.
15
(5) The information in an application or given to a
magistrate under this section must be verified
before the magistrate on oath or affirmation or by
affidavit, and the magistrate may for that purpose
administer an oath or affirmation or take an
20
affidavit.
(6) A magistrate to whom an application is made
under this section may, if satisfied that there are
reasonable grounds for believing that entry and
inspection of the premises are necessary to enable
25
the Disability Services Commissioner to
investigate a complaint under this Division, issue
a warrant authorising the Disability Services
Commissioner or a person employed for the
purposes of this Division and named in the
30
warrant--
(a) to enter and inspect premises named in the
warrant; and
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(b) if the application for a warrant describes a
class of persons whom it is proposed to
examine, to examine a person who is a
member of that class, with the consent of that
person or, if that person is unable to consent,
5
with the consent of that person's
representative; and
(c) to require a person on the premises to answer
questions or produce documents in the
person's possession concerning the
10
complaint; and
(d) to inspect and take copies of or extracts from
documents produced in compliance with a
requirement made under paragraph (c).
(7) There must be stated in a warrant--
15
(a) the purpose for which the warrant is issued;
and
(b) the name of the person to whom the warrant
is issued; and
(c) a general description of the classes of
20
persons (if any) who may be examined; and
(d) a description of the premises which may be
entered.
(8) A magistrate who issues a warrant must cause a
record to be made of particulars of the grounds the
25
magistrate has relied on to justify the issue of the
warrant.
(9) If asked by the occupier or a person in charge of
the premises, the person executing a warrant must
produce it for inspection.
30
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(10) Nothing in this section or a warrant issued under
this section or a requirement made in executing a
warrant prevents a person from--
(a) refusing to answer a question or produce a
document because the answer would relate
5
to, or the documents contain, information in
respect of which the person claims legal
professional privilege; or
(b) refusing to answer a question or produce a
document, if the answer or the information in
10
the document would tend to incriminate the
person.
(11) A warrant ceases to have effect--
(a) at the end of the period of a month after its
issue; or
15
(b) if it is withdrawn by the magistrate who
issued it; or
(c) when it is executed--
whichever occurs first.
(12) The person to whom a warrant is issued must give
20
a report in writing to the magistrate who issued
the warrant--
(a) stating whether or not the warrant was
executed; and
(b) if the warrant was executed, setting out the
25
results of the execution of the warrant; and
(c) if the warrant was not executed, setting out
the reason why the warrant was not
executed.
(13) A report under sub-section (12) must be made
30
within 10 days after the warrant is executed or
expires, whichever occurs first.
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(14) If the magistrate who issued the warrant has died,
has ceased to be a magistrate or is absent--
(a) the report under sub-section (12) may be
given to; or
(b) the warrant may be withdrawn by--
5
another magistrate.
(15) This section does not limit the provisions of any
other Act relating to warrants.
(16) A disability service provider and a disability
service provider's officers, employees and agents
10
must give the Disability Services Commissioner
or a person executing a warrant any reasonable
assistance which the Disability Services
Commissioner or person needs and they are able
to give to help the Disability Services
15
Commissioner or person to execute a warrant
under this section.
Penalty: 60 penalty units.
(17) A person who intentionally obstructs the
Disability Services Commissioner or a person
20
executing a warrant in executing a warrant under
this section is guilty of an offence and liable to a
penalty not exceeding 60 penalty units.
(18) A person who, without reasonable excuse, after
being advised by the Disability Services
25
Commissioner or a person executing a warrant as
to the person's obligations in relation to the
execution of a warrant--
(a) does not answer a question asked by, or
produce a document required by, the person
30
executing the warrant; or
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(b) in answer to a question gives information
which the person knows to be false or
misleading--
is guilty of an offence and liable to a penalty not
exceeding 60 penalty units.
5
125. False statements
A person who makes a statement in a complaint,
report or return under this Division which the
person knows to be false or misleading in a
material respect is guilty of an offence and liable
10
to a penalty not exceeding 60 penalty units.
126. Person not to be penalised for making a complaint
A person who--
(a) by threats or intimidation persuades or
attempts to persuade another person not to
15
make a complaint to the Disability Services
Commissioner or not to continue discussion
with or proceedings before the Disability
Services Commissioner; or
(b) refuses to employ or dismisses another
20
person or subjects another person to any
detriment, because the other person intends
to make a complaint, or has made a
complaint, to the Disability Services
Commissioner, or intends to take part, is
25
taking part, or has taken part, in discussions
with or proceedings before the Disability
Services Commissioner--
is guilty of an offence and liable to a penalty not
exceeding 120 penalty units.
30
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127. Protection for Disability Services Commissioner,
officers and parties to proceedings
Section 21A of the Evidence Act 1958 applies to
conciliation and investigation proceedings and
inquiries under this Division and the reports of the
5
Disability Services Commissioner as if the
Disability Services Commissioner or a delegate of
the Disability Services Commissioner were a
board appointed by the Governor in Council.
128. Secrecy
10
(1) A person who is, or has been, the Disability
Services Commissioner, an acting Disability
Services Commissioner, a delegate of the
Disability Services Commissioner, an employee in
the office of the Disability Services Commissioner
15
or a consultant engaged by the Disability Services
Commissioner must not, directly or indirectly,
make a record of, disclose or communicate to any
person any information relating to the affairs of
any individual or organisation acquired in the
20
performance of functions or duties or the exercise
of powers under this Act, unless--
(a) it is necessary to do so for the purposes of, or
in connection with, the performance of a
function or duty or the exercise of a power
25
under this Act; or
(b) the individual or organisation to whom the
information relates gives written consent to
the making of the record, disclosure or
communication.
30
Penalty: 60 penalty units.
(2) Without limiting sub-section (1), the Disability
Services Commissioner must not disclose or
communicate to any person, other than a person
employed in the office of the Disability Services
35
Commissioner, any information given to the
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Disability Services Commissioner pursuant to a
requirement made under this Division (including
information contained in a document required to
be produced to the Disability Services
Commissioner) unless--
5
(a) the Disability Services Commissioner has--
(i) advised the person from whom the
information was obtained of the
proposal to disclose or communicate
that information; and
10
(ii) given that person a reasonable
opportunity to consent to the disclosure
or communication; and
(b) the person from whom the information was
obtained has consented to the proposal to
15
disclose or communicate that information.
Penalty: 60 penalty units.
Division 7--Visits by Community Visitors
129. Visiting of residential service
(1) A community visitor may visit any premises at
20
which a disability service provider is providing a
residential service with or without any previous
notice at the times and periods that the community
visitor thinks fit.
(2) A residential institution must be visited at least
25
once every month by a community visitor for the
region in which the residential institution is
located.
(3) The Minister may direct a community visitor to
visit the premises at which a disability service
30
provider is providing a residential service at the
times that the Minister directs.
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130. Powers of inspection
(1) A community visitor is entitled when visiting a
disability service provider providing a residential
service to--
(a) inspect any part of the premises in which the
5
residential service is being provided;
(b) see any resident;
(c) make enquiries relating to the provision of
services to the residents;
(d) inspect any document relating to any resident
10
which is not a medical record and any
records required to be kept by or under this
Act;
(e) inspect any medical record relating to a
resident with the consent of the resident or
15
the resident's guardian.
(2) If a community visitor wishes to perform or
exercise, or is performing or exercising, any
power, duty or function under this Act, the
disability service provider and any member of the
20
staff or management of the residential service
must provide the community visitor with such
reasonable assistance as the community visitor
requires to perform or exercise that power, duty or
function effectively.
25
(3) A disability service provider or member of the
staff or management of a residential service
must--
(a) reasonably render assistance when required
to do so under sub-section (2);
30
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(b) give full and true answers to the best of that
person's knowledge to any questions asked
by a community visitor in the performance or
exercise of any power, duty or function
under this Act.
5
Penalty: 60 penalty units.
131. Request to see a community visitor
(1) Any resident in a residential service or any person
on behalf of the resident may request the disability
service provider to arrange for the resident to be
10
seen by a community visitor.
(2) The disability service provider must within
72 hours of receiving a request under sub-
section (1) advise the Community Visitors Board
that a request has been made.
15
Penalty: 5 penalty units.
(3) Unless sub-section (4) applies, the Community
Visitors Board must ensure a request is responded
to within 7 days of the request being received
under sub-section (2).
20
(4) For the purposes of sub-section (3), if the
Community Visitors Board considers that it would
be appropriate in the circumstances, the
Community Visitors Board may arrange for the
Public Advocate to respond to the request.
25
(5) The Community Visitors Board may refuse a
request under sub-section (2) if the Community
Visitors Board considers that the request is--
(a) vexatious; or
(b) frivolous; or
30
(c) lacking in substance.
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132. Record of visits
A disability service provider providing a
residential service must keep a record in the
prescribed form of visits by community visitors to
the residential service.
5
Penalty: 5 penalty units.
__________________
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PART 7--RESTRICTIVE INTERVENTIONS
133. Purpose of Part
The purpose of this Part is to protect the rights of
persons with a disability who are subject to
restrictive interventions by ensuring that
5
restrictive interventions are only used if the
requirements imposed by this Part are complied
with.
134. Use of restrictive interventions
A disability service provider must not use a
10
restrictive intervention unless there is in force an
approval under section 135.
Penalty: 240 penalty units.
135. Approval to use restrictive interventions
(1) A disability service provider, other than the
15
Secretary, who proposes to use restrictive
interventions in the provision of a disability
service must apply to the Secretary for approval.
(2) An application for approval must include--
(a) the prescribed details; and
20
(b) a request for approval of the title and rank of
any position and the name of the holder of
the position to be appointed as an Authorised
Program Officer for the disability service
provider.
25
(3) The Secretary may grant an application for
approval subject to any conditions that the
Secretary considers appropriate.
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(4) In the case of a disability service in respect of
which the disability service provider is the
Secretary, the Secretary--
(a) is to be taken to be approved to use
restrictive interventions; and
5
(b) must ensure that an Authorised Program
Officer is appointed for the disability
service; and
(c) must approve the title and rank of any
position and the name of the holder of the
10
position to be appointed as the Authorised
Program Officer.
136. Revocation of approval
(1) The Secretary may revoke the approval of a
disability service provider to use restrictive
15
interventions if the Secretary considers it
appropriate to do so.
(2) For the purposes of sub-section (1), the Secretary
may have regard to the following--
(a) the registration of the disability service
20
provider has been revoked;
(b) the disability service provider has failed to
comply with requirements under this Act;
(c) any other circumstances that the Secretary
considers relevant.
25
137. Notice before refusal or revocation
(1) The Secretary must not refuse an application
under section 135 or revoke the approval of a
disability service provider to use restrictive
interventions under section 136(1) unless the
30
Secretary has given a notice in writing to the
disability service provider in accordance with sub-
section (2) and has considered any submission
made by the disability service provider.
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(2) The notice must specify--
(a) the proposed decision and the reasons for the
proposed decision;
(b) that the disability service provider may make
a submission in writing within 14 days of the
5
notice being given.
138. Application for review
(1) A disability service provider may apply to VCAT
for a review of a decision by the Secretary--
(a) to refuse an application under section 135; or
10
(b) to revoke the approval of a disability service
provider to use restrictive interventions
under section 136(1).
(2) An application for review must be made within
28 days after the later of--
15
(a) the day on which the decision is made; or
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998, the
disability service provider requests a
statement of reasons for the decision, the day
20
on which the statement of reasons is given to
the disability service provider or the
disability service provider is informed under
section 46(5) of that Act that a statement of
reasons will not be given.
25
139. Authorised Program Officers
(1) An Authorised Program Officer must ensure that
any restrictive intervention used in the provision
of a disability service for which the Authorised
Program Officer is responsible is administered in
30
accordance with this Part.
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(2) A disability service provider must advise the
Senior Practitioner of the name and qualifications
of any person appointed as an Authorised Program
Officer in the manner and within the period
determined by the Senior Practitioner.
5
Penalty: 10 penalty units.
(3) The Senior Practitioner must keep a register of the
name and qualifications of each Authorised
Program Officer.
140. Use of restraint and seclusion
10
Unless section 147 applies, restraint or seclusion
can only be used--
(a) if the use of restraint or seclusion is
necessary--
(i) to prevent the person from causing
15
physical harm to themselves or any
other person; or
(ii) to prevent the person from destroying
property where to do so could involve
the risk of harm to themselves or any
20
other person; and
(b) if the use and form of restraint or seclusion is
the option which is the least restrictive of the
person as is possible in the circumstances;
and
25
(c) if the use and form of restraint or
seclusion--
(i) is included in the person's behaviour
management plan; and
(ii) is in accordance with the person's
30
behaviour management plan; and
(iii) is only applied for the period of time
that has been authorised by the
Authorised Program Officer; and
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(d) if seclusion is to be used--
(i) the person is supplied with bedding and
clothing which is appropriate in the
circumstances; and
(ii) the person has access to adequate
5
heating or cooling as is appropriate in
the circumstances; and
(iii) the person is provided with food and
drink at the appropriate times; and
(iv) the person is provided with adequate
10
toilet arrangements; and
(e) if any other requirements imposed by the
Senior Practitioner are complied with.
141. Use of restraint and seclusion must be included in
behaviour management plan
15
(1) This section applies if a disability service provider
providing a disability service to a person with a
disability--
(a) is satisfied that the criteria specified in
sections 140(a) and 140(b) apply; and
20
(b) proposes to use restraint or seclusion on the
person with a disability.
(2) The disability service provider must develop a
behaviour management plan for the person with a
disability that includes provisions which--
25
(a) state the circumstances in which the
proposed form of restraint or seclusion is to
be used for behaviour management;
(b) explain how the use of restraint or seclusion
will be of benefit to the person;
30
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(c) demonstrate that the use of restraint or
seclusion is the option which is the least
restrictive of the person as is possible in the
circumstances.
(3) In preparing the behaviour management plan, the
5
disability service provider must consult with--
(a) the person with a disability;
(b) if the person with a disability has a guardian,
the guardian;
(c) if other disability service providers provide
10
disability services to the person with a
disability, a representative of each disability
service provider;
(d) any other person that the disability service
provider considers integral to the
15
development of the behaviour management
plan.
142. Review of behaviour management plan by disability
service provider
(1) A behaviour management plan prepared under
20
section 141 must be reviewed by the disability
service provider at intervals of not more than--
(a) 12 months; or
(b) if the Authorised Program Officer or the
Senior Practitioner specify a shorter period,
25
the shorter period.
(2) A person with a disability may at any time request
the disability service provider to review the
behaviour management plan prepared under
section 141.
30
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(3) In reviewing the behaviour management plan, the
disability service provider must consult with--
(a) the person with a disability;
(b) if the person with a disability has a guardian,
the guardian;
5
(c) if other disability service providers provide
disability services to the person with a
disability, a representative of each disability
service provider;
(d) any other person that the disability service
10
provider considers integral to the review of
the behaviour management plan.
143. Independent person
(1) An Authorised Program Officer must ensure that
an independent person is available to explain to a
15
person with a disability--
(a) the inclusion of the proposed use of restraint
or seclusion in the person's proposed
behaviour management plan;
(b) that the person with a disability can seek a
20
review of the decision to include the
proposed use of restraint or seclusion in the
person's proposed behaviour management
plan if the person wants to do so;
(c) if the person is currently subject to a
25
behaviour management plan, how the
proposed behaviour management plan is
different;
(d) in the case of a review of the behaviour
management plan by the disability service
30
provider, any matter related to the inclusion
of restraint or seclusion in the behaviour
management plan.
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(2) If the independent person considers that--
(a) a person with a disability is not able to
understand the inclusion of the use of
restraint or seclusion in the person's
behaviour management plan; and
5
(b) the requirements of this Part are not being
complied with--
the independent person may report the matter to
the Public Advocate.
(3) An independent person assisting a person with a
10
disability must not--
(a) be a disability service provider or a
representative of a disability service
provider; or
(b) have any interest in a disability service
15
provider which is providing, or has provided,
disability services to the person with a
disability.
(4) If a person with a disability advises the disability
service provider or the Authorised Program
20
Officer that he or she does not consider that the
person assisting him or her is an independent
person, the Authorised Program Officer must
arrange for an independent person to assist the
person with a disability.
25
144. Powers of Public Advocate
(1) After considering a report received under
section 143, the Public Advocate may--
(a) refer the matter to the Senior Practitioner; or
(b) within 28 days of receiving the report,
30
initiate an application to VCAT to review the
decision to include the use of restraint or
seclusion in the behaviour management plan.
146
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(2) This section is in addition to the powers of the
Public Advocate under the Guardianship and
Administration Act 1986.
145. Requirements for the use of restraint and seclusion
(1) Before any restraint or seclusion can be used on a
5
person with a disability, the inclusion of the use of
restraint or seclusion in the behaviour
management plan prepared under section 141 or
reviewed under section 142 must be approved by
the Authorised Program Officer.
10
(2) The Authorised Program Officer must not approve
the inclusion of the proposed use of restraint or
seclusion in the behaviour management plan
unless the Authorised Program Officer is satisfied
that the behaviour management plan has been
15
prepared or reviewed in accordance with this Act.
(3) If the Authorised Program Officer has approved
the inclusion of the proposed use of restraint or
seclusion in the behaviour management plan
under sub-section (1), the disability service
20
provider must at least 2 days before the proposed
use of restraint or seclusion notify in writing the
person with a disability--
(a) that the Authorised Program Officer has
approved the inclusion of the proposed use
25
of restraint or seclusion in the person's
behaviour management plan; and
(b) the person with a disability has a right to
apply to VCAT for a review of the decision
to include the use of restraint or seclusion in
30
the person's behaviour management plan.
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(4) The Authorised Program Officer must within
2 working days of approving the inclusion of
restraint or seclusion in the behaviour
management plan under sub-section (1) provide to
the Senior Practitioner--
5
(a) a copy of the behaviour management plan;
and
(b) the name and details of the independent
person who assisted the person with a
disability.
10
146. Review by VCAT
(1) An application to VCAT by a person with a
disability for review of the inclusion of the use of
restraint or seclusion in the person's behaviour
management plan must be made within 28 days
15
after the day on which the person is notified under
section 145 of the decision to approve the
inclusion of the proposed use of restraint or
seclusion in the person's behaviour management
plan.
20
(2) On an application under this section, VCAT must
determine the review having regard to the
requirements of this Part.
(3) VCAT may--
(a) confirm the decision to include the use of
25
restraint or seclusion in the person's
behaviour management plan and dismiss the
application; or
(b) order the disability service provider to
prepare a new behaviour management plan
30
for the person with a disability in accordance
with the order; or
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(c) direct that the use of restraint or seclusion is
to be removed from the behaviour
management plan for the person with a
disability.
147. Use of restraint or seclusion in an emergency
5
(1) This section applies if--
(a) a person with a disability does not have a
behaviour management plan approved by an
Authorised Program Officer which provides
for the use of restraint or seclusion; and
10
(b) an approved disability service provider is of
the opinion that there is an emergency
because--
(i) there is an imminent risk of a person
with a disability causing serious
15
physical harm to themselves or any
other person; and
(ii) it is necessary to use restraint or
seclusion to prevent that risk.
(2) If this section applies, the approved disability
20
service provider may use restraint or seclusion on
the person with a disability--
(a) if the use and form of restraint or seclusion is
the option which is the least restrictive of the
person as is possible in the circumstances;
25
(b) the use of restraint or seclusion is authorised
by the person in charge of the disability
service;
(c) the Authorised Program Officer is notified
without delay of the use of restraint or
30
seclusion.
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(3) The Authorised Program Officer must within
7 days after the end of each month prepare and
send to the Senior Practitioner a report in respect
of the use of restraint or seclusion in an
emergency to which this section applies in
5
accordance with sub-section (4).
(4) A report under sub-section (3) must specify for
each month--
(a) the form of restraint used or the period of
time during which seclusion was used;
10
(b) the reasons why restraint or seclusion was
used;
(c) the effect on the person's behaviour;
(d) the name of the person who approved the use
of restraint or seclusion;
15
(e) the name of the person who applied the
restraint or kept the person in seclusion.
148. Reports
(1) The Senior Practitioner must--
(a) monitor whether the use of the restraint or
20
seclusion is in accordance with this Part; and
(b) subject to any guidelines issued under sub-
section (3), advise the Authorised Program
Officer authorising the restraint or seclusion
as to the intervals, not exceeding 12 months,
25
within which the Authorised Program
Officer is to provide a report on the
implementation of a person's behaviour
management plan in accordance with sub-
section (2) to the Senior Practitioner.
30
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(2) A report required under sub-section (1) must--
(a) be provided within 7 days after the end of the
interval advised under sub-section (1);
(b) contain the information required in a report
under section 147;
5
(c) include a record of all instances in which
restraint or seclusion has been applied during
the period for which the report is prepared;
(d) specify any details required by the Senior
Practitioner in respect of each instance
10
included under paragraph (b);
(e) have attached a copy of the person's current
behaviour management plan if the use of
restraint or seclusion is being continued.
(3) For the purposes of this section, the Senior
15
Practitioner may make and issue guidelines
relating to the preparation of reports including
enabling the preparation of a consolidated report
by an Authorised Program Officer where more
than one approved disability service providers are
20
providing disability services to a person with a
disability involving the use of restraint or
seclusion.
149. Offence
A disability service provider who, except as
25
provided in section 140 or 147, applies restraint or
seclusion to a person with a disability is guilty of
an offence against this Act.
Penalty: 240 penalty units.
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150. Use of other restrictive interventions
(1) In this section, "other restrictive interventions"
means restrictive interventions other than restraint
or seclusion.
(2) The Senior Practitioner may in respect of other
5
restrictive interventions used by disability service
providers--
(a) require a disability service provider to
provide a report to the Senior Practitioner on
the use of other restrictive interventions in
10
disability services provided by the disability
service provider;
(b) require a disability service provider to
develop a behaviour management plan for a
person with a disability in respect of whom
15
the disability service provider is using other
restrictive interventions;
(c) develop guidelines and standards in relation
to the use of other restrictive interventions;
20 Note: The guidelines and standards may include
clinical guidelines and standards.
(d) audit and evaluate the use of other restrictive
interventions;
(e) give written directions to disability service
providers--
25
(i) prohibiting the use of a specified other
restrictive intervention;
(ii) regulating the use of a specified other
restrictive intervention;
(f) undertake research and provide advice to
30
disability service providers in relation to the
use of other restrictive interventions.
__________________
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Part 8--Compulsory Treatment
s. 151
PART 8--COMPULSORY TREATMENT
Division 1--Residential Treatment Facilities
151. Proclamation of residential treatment facility
(1) The Governor in Council may, by proclamation
published in the Government Gazette, proclaim--
5
(a) a premises (including part of any building or
place) used by the Secretary to provide
residential services; or
(b) a program provided on a premises (including
part of any building or place) used by the
10
Secretary to provide residential services--
to be a residential treatment facility.
(2) A proclamation under sub-section (1) may classify
the residential treatment facility as--
(a) a short-term residential treatment facility; or
15
(b) a long-term residential treatment facility.
(3) The purpose of a residential treatment facility is to
provide compulsory treatment to persons with an
intellectual disability admitted to the residential
treatment facility in accordance with this Division.
20
(4) Subject to sub-section (5), for the purposes of this
Division, a person with an intellectual disability
can only be admitted to a short-term residential
treatment facility for a period not exceeding
5 years.
25
(5) If a new order of the type specified in section
152(2) applies to a person with an intellectual
disability, sub-section (4) does not prevent the
person with an intellectual disability being
re-admitted to a short-term residential treatment
30
facility.
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(6) The facility operated by the Secretary at the
commencement of this section and known as the
Intensive Residential Treatment Program of the
Statewide Forensic Service is deemed to have
been proclaimed under this section to be a
5
residential treatment facility and classified as a
short-term residential treatment facility.
(7) A residential treatment facility can only be
operated by the Secretary through the Department.
(8) The Secretary must appoint an Authorised
10
Program Officer in respect of each residential
treatment facility.
152. Admission to a residential treatment facility
(1) A person with a disability may only be admitted to
a residential treatment facility if the Secretary is
15
satisfied that--
(a) the person has an intellectual disability; and
(b) the person presents a serious risk of violence
to another person; and
(c) all less restrictive options have been tried or
20
considered and are not suitable; and
(d) the residential treatment facility can provide
services for the treatment of the person with
a disability and that treatment is suitable for
that person; and
25
(e) the Senior Practitioner has been notified of
the proposed admission; and
(f) an order specified under sub-section (2)
applies to the person enabling compulsory
treatment to be provided.
30
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(2) For the purposes of sub-section (1)(f), the
following orders are specified--
(a) a residential treatment order made under the
Sentencing Act 1991;
(b) a parole order made under the Corrections
5
Act 1986;
(c) a custodial supervision order made under the
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997;
(d) an order transferring the person from a
10
prison under section 166;
(e) an extended supervision order made under
the Serious Sex Offenders Monitoring Act
2005.
(3) An order specified in sub-section (2)(b) or (2)(e)
15
cannot provide for the admission of the person in
respect of whom it is made to a residential
treatment facility unless the Secretary has
provided a statement to the Adult Parole Board
specifying that--
20
(a) treatment is available in the residential
treatment facility; and
(b) the person satisfies the criteria specified in
sub-sections (1)(a) to (1)(e); and
(c) admission to the residential treatment facility
25
is appropriate in the circumstances.
153. Authorised Program Officer must prepare
treatment plan
(1) Within 28 days after a person with a disability is
admitted to a residential treatment facility under
30
an order specified in section 152(2)(a), 152(2)(b),
152(2)(d) or 152(2)(e), the Authorised Program
Officer must prepare a treatment plan.
155
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(2) A treatment plan must include provisions which--
(a) specify the treatment that will be provided to
the resident in the residential treatment
facility during the period that the order under
which the person is detained remains in
5
force;
(b) state the benefit to the person that the
resident is expected to receive from the
treatment;
(c) specify any restrictive interventions that are
10
to be used;
(d) specify the process and criteria applying in
respect of the resident obtaining leave of
absence from the residential treatment
facility;
15
(e) set out a proposed process for the transition
from being a resident in a residential
treatment facility to living in the community.
(3) Within 2 days of the treatment plan being
prepared, the Authorised Program Officer must--
20
(a) give a copy of the treatment plan to the
person with a disability; and
(b) lodge a copy of the treatment plan with the
Senior Practitioner.
(4) An Authorised Program Officer must provide a
25
report on the implementation of a treatment plan
to the Senior Practitioner at the intervals, not
exceeding 6 months, specified by the Senior
Practitioner.
(5) Subject to sub-section (6), a material change can
30
not be made to a treatment plan unless the change
is approved by the Senior Practitioner.
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(6) Unless sub-section (7) applies, if a material
change to a treatment plan relates to an increase in
the level of supervision or restriction--
(a) the Senior Practitioner cannot approve the
change; and
5
(b) the Authorised Program Officer must apply
to VCAT for a variation of the treatment
plan under section 155.
(7) Despite sub-section (6), if the Senior Practitioner
considers that an increase in the level of
10
supervision or restriction of a person with a
disability is necessary because of an emergency,
the Senior Practitioner--
(a) may approve a material change to the
treatment plan of the person with a disability
15
relating to the increase in the level of
supervision or restriction; and
(b) must immediately apply to VCAT for a
variation of the treatment plan under
section 155.
20
(8) The Senior Practitioner must, as soon as
practicable before the change has effect, notify in
writing the person who is subject to the treatment
plan of the change to the treatment plan approved
by the Senior Practitioner.
25
154. Annual review of treatment plan
(1) While an order specified in section 152(2)(a),
152(2)(b) or 152(2)(e) is in force, the Authorised
Program Officer must--
(a) within 6 months of the person subject to the
30
treatment plan being admitted to the
residential treatment facility; and
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(b) at intervals of not more than 12 months since
the last review of the treatment plan by
VCAT--
apply to VCAT for a review of the treatment plan.
(2) In conducting a review of a treatment plan, VCAT
5
must determine whether the treatment plan is
appropriate having regard to the criteria specified
in section 153(2).
(3) After reviewing a treatment plan, VCAT may--
(a) subject to sub-section (4), confirm the
10
treatment plan; or
(b) subject to sub-section (4), vary the treatment
plan as specified in its determination; or
(c) require the Authorised Program Officer to
prepare a new treatment plan.
15
(4) VCAT must not confirm or vary a treatment plan
unless VCAT is satisfied that the residential
treatment facility can implement the treatment
plan.
(5) VCAT can only vary a treatment plan if the
20
variation is consistent with the order specified in
section 152(2)(a), 152(2)(b) or 152(2)(e).
(6) After reviewing a treatment plan, VCAT must set
a date not later than 12 months for the next
review.
25
155. Application for review of treatment plan
(1) The Authorised Program Officer or the resident
may at any time apply to VCAT for a review of a
treatment plan.
(2) In conducting a review of a treatment plan, VCAT
30
must determine whether the treatment plan is
appropriate having regard to the criteria specified
in section 153(2).
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(3) After reviewing a treatment plan, VCAT may--
(a) subject to sub-section (4), confirm the
treatment plan; or
(b) subject to sub-section (4), vary the treatment
plan as specified in its determination; or
5
(c) require the Authorised Program Officer to
prepare a new treatment plan.
(4) VCAT must not confirm or vary a treatment plan
unless VCAT is satisfied that the residential
treatment facility can implement the treatment
10
plan.
(5) VCAT can only vary a treatment plan if the
variation is consistent with the order under section
152(2)(a), 152(2)(b) or 152(2)(e).
(6) After reviewing a treatment plan, VCAT must set
15
a date not later than 12 months for the next
review.
156. Leave of absence
(1) Subject to this section, the Authorised Program
Officer may allow a resident detained in a
20
residential treatment facility under an order
specified in section 152(2)(a), 152(2)(b),
152(2)(d) or 152(2)(e) to be absent from the
residential treatment facility--
(a) for the period; and
25
(b) subject to any conditions--
that the Authorised Program Officer considers
appropriate.
(2) Leave of absence under this section must be
granted--
30
(a) in accordance with the process and criteria
specified in the resident's treatment plan; and
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(b) subject to any directions given by VCAT or
the Senior Practitioner.
(3) The Authorised Program Officer must not allow a
resident leave of absence unless the Authorised
Program Officer is satisfied on reasonable
5
grounds that the safety of members of the public
will not be seriously endangered as a result of the
resident being allowed leave of absence.
(4) The Authorised Program Officer may--
(a) from time to time extend the period of leave
10
of absence; or
(b) revoke the leave of absence and require the
resident to return to the residential treatment
facility.
(5) The Authorised Program Officer of a residential
15
treatment facility must provide a report for the
period of 6 months ending on 30 June and
31 December to the Senior Practitioner specifying
in respect of the residential treatment facility--
(a) the number of leaves of absence allowed;
20
(b) in any case where leave of absence was
considered by VCAT, details of the hearing
and the decision.
157. Special leave
(1) A resident detained in a residential treatment
25
facility under an order specified in section
152(2)(a), 152(2)(b), 152(2)(d) or 152(2)(e) may
apply to the Authorised Program Officer for
special leave of absence specifying the special
circumstances for which the special leave is
30
required.
Note: Special leave of absence may be applied for in
relation to unplanned, one-off or emergency
situations in special circumstances such as attending
35 a medical appointment or a funeral in the community.
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(2) The Authorised Program Officer must grant an
application for special leave of absence if the
Authorised Program Officer is satisfied that--
(a) there are special circumstances; and
(b) the safety of members of the public will not
5
be seriously endangered.
(3) If the Authorised Program Officer refuses to grant
special leave of absence to a resident detained in a
residential treatment facility, the resident may
apply to VCAT for a review of the decision.
10
(4) On an application under sub-section (3), VCAT
may order that--
(a) special leave of absence should be allowed;
or
(b) special leave of absence should not be
15
allowed.
(5) Special leave of absence--
(a) must not exceed 24 hours except in the case
of special leave of absence for medical
treatment; and
20
(b) may be subject to any conditions as the
Authorised Program Officer or VCAT may
specify.
(6) The Authorised Program Officer of a residential
treatment facility must provide a report for the
25
period of 6 months ending on 30 June and
31 December to the Senior Practitioner specifying
in respect of the residential treatment facility--
(a) the number of special leaves of absence
granted;
30
(b) the special circumstances for which they
were granted.
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158. Suspension of leave of absence or special leave
(1) Leave of absence or special leave of absence
granted to a resident detained in a residential
treatment facility may be suspended wholly or
partly at any time by the Secretary or the
5
Authorised Program Officer if the Secretary or the
Authorised Program Officer is satisfied on
reasonable grounds that the safety of the person
on leave or members of the public will be
seriously endangered if leave or part of the leave
10
is not suspended.
(2) If leave of absence or special leave of absence is
suspended, the Secretary or the Authorised
Program Officer must as soon as is practicable
confirm the suspension in writing to the person in
15
respect of whom the leave of absence or special
leave of absence is suspended.
(3) If the Secretary or the Authorised Program Officer
is satisfied that the reason for the suspension no
longer exists, the Secretary or the Authorised
20
Program Officer must lift the suspension
immediately.
(4) A person whose leave of absence or special leave
of absence is wholly suspended under this section
is deemed not to have leave of absence or special
25
leave of absence during the period of suspension.
(5) A person whose leave of absence or special leave
of absence is partly suspended under this section
is deemed not to have the suspended part of the
leave of absence or special leave of absence
30
during the period of suspension.
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159. Security conditions
(1) A resident detained in a residential treatment
facility or absent from a residential treatment
facility on leave is subject to such security
conditions as the Authorised Program Officer
5
considers necessary.
(2) A resident detained in a residential treatment
facility may be transported to and from any places
as may be necessary for the administration of this
Act in accordance with those security conditions.
10
(3) A resident detained in a residential treatment
facility is in the custody of the person in charge of
the residential treatment facility until the order
under which the resident is detained ceases or is
terminated.
15
160. Apprehension of resident absent without leave
A resident detained in a residential treatment
facility who is absent from the residential
treatment facility without leave of absence or
special leave of absence may be apprehended at
20
any time by--
(a) a member of the police force; or
(b) the person in charge of the residential
treatment facility or any person employed
under the Public Administration Act 2004
25
and authorised by the person in charge of the
residential treatment facility--
for the purpose of being returned to the residential
treatment facility.
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161. Transfer of resident to another residential treatment
facility or a residential institution
(1) The Secretary at the request of the Senior
Practitioner or the Authorised Program Officer
may by order direct the transfer of a resident
5
detained in a residential treatment facility to
another residential treatment facility or to a
residential institution if the Secretary is satisfied
that the transfer will enable that person's treatment
plan to be more effectively implemented.
10
(2) If a resident detained in a residential treatment
facility is transferred to another residential
treatment facility or to a residential institution any
documents relevant to the detention and care of
the resident must be forwarded at the same time to
15
that residential treatment facility or residential
institution.
Division 2--Provisions applying to RTO Residents
162. Extended leave
(1) In this section, "extended leave" means leave for
20
a RTO resident to be absent from the residential
treatment facility--
(a) for the period, not exceeding 12 months; and
(b) subject to the conditions (if any)--
specified by the court which made the residential
25
treatment order.
(2) The purpose of extended leave is to enable the
RTO resident to be re-integrated within the
community while still subject to conditions
specified by the court that made the residential
30
treatment order.
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(3) An application for extended leave for a RTO
resident may be made to the court that made the
residential treatment order to which they are
subject--
(a) by the RTO resident; or
5
(b) by the Secretary.
(4) If an application is made to the court for extended
leave, a leave plan must be prepared and filed
with the court by the Secretary.
(5) The court may grant an application under sub-
10
section (3) if the court is satisfied on reasonable
grounds that the safety of the RTO resident or
members of the public will not be seriously
endangered as a result of the RTO resident being
allowed extended leave.
15
(6) An application for extended leave can be made
and granted more than once.
163. Appeals regarding extended leave
(1) A person may appeal against a refusal to grant the
person extended leave under section 162--
20
(a) if the original court making the decision was
the Magistrates' Court, to the County Court;
or
(b) if the original court making the decision was
the County Court or the Supreme Court, to
25
the Court of Appeal.
(2) The Secretary may appeal to the Court of Appeal
against a grant of extended leave if he or she
considers that--
(a) extended leave should not have been
30
granted; and
(b) an appeal should be brought in the public
interest.
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(3) The Director of Public Prosecutions or the
Attorney-General may appeal to the Court of
Appeal against a grant of extended leave if he or
she--
(a) was a party to the proceeding in which
5
extended leave was granted; and
(b) considers that extended leave should not
have been granted; and
(c) considers that an appeal should be brought in
the public interest.
10
(4) On an appeal against a refusal to grant extended
leave, the Court of Appeal may--
(a) confirm the refusal to grant extended leave;
or
(b) grant extended leave in accordance with
15
section 162; or
(c) remit the matter, with or without directions,
to the court that refused to grant extended
leave.
(5) On an appeal against a grant of extended leave,
20
the Court of Appeal may--
(a) confirm the grant of extended leave; or
(b) quash the grant and order that extended leave
be refused; or
(c) quash the grant and remit the matter, with or
25
without directions, to the court that made the
grant.
(6) If the Court of Appeal remits a matter to a court
under sub-section (4)(c) or (5)(c), that court must
hear and determine the matter in accordance with
30
this Act and any directions given by the Court of
Appeal.
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164. Suspension and revocation of extended leave
(1) Extended leave for a RTO resident granted under
section 162 may be suspended at any time by the
Secretary if the Secretary is satisfied on
reasonable grounds that the safety of the person
5
on leave or members of the public will be
seriously endangered if leave is not suspended.
(2) If extended leave is suspended, the Secretary
must--
(a) as soon as is practicable confirm the
10
suspension in writing to the person formerly
on leave; and
(b) subject to sub-section (5), within 48 hours
after the suspension--
(i) make an application to the court that
15
granted the leave for revocation of the
leave; or
(ii) lift the suspension.
(3) The court must hear an application referred to in
sub-section (2)(b)(i) as soon as possible.
20
(4) On an application under sub-section (2)(b)(i) the
court may--
(a) if satisfied on reasonable grounds that the
safety of the RTO resident or members of the
public will be seriously endangered if the
25
suspension is not confirmed or leave is not
revoked, revoke the leave; or
(b) if not satisfied, lift the suspension.
(5) If the Secretary is satisfied that the reason for the
suspension no longer exists, the Secretary must
30
lift the suspension immediately.
(6) A person whose leave is suspended under this
section is deemed not to have leave of absence
during the period of suspension.
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165. Appeals regarding revocation of extended leave
(1) A person may appeal to the Court of Appeal
against a revocation of the extended leave granted
to the person under section 162.
(2) The Secretary may appeal to the Court of Appeal
5
against a refusal to revoke extended leave granted
under section 162 if the Secretary considers that--
(a) the extended leave should have been
revoked; and
(b) an appeal should be brought in the public
10
interest.
(3) The Director of Public Prosecutions or the
Attorney-General may appeal to the Court of
Appeal against a refusal to revoke extended leave
granted under section 162 if he or she--
15
(a) was a party to the proceeding for revocation
of extended leave; and
(b) considers that the extended leave should
have been revoked; and
(c) considers that an appeal should be brought in
20
the public interest.
(4) On an appeal against a revocation of extended
leave, the Court of Appeal may--
(a) confirm the revocation of extended leave; or
(b) quash the revocation and restore the
25
extended leave; or
(c) remit the matter, with or without directions,
to the court that revoked the leave.
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(5) On an appeal against a refusal to revoke extended
leave, the Court of Appeal may--
(a) confirm the refusal to revoke extended leave;
or
(b) revoke the extended leave in accordance
5
with section 164(4)(a); or
(c) revoke the extended leave and remit the
matter, with or without directions, to the
court that made the grant.
(6) If the Court of Appeal remits a matter to a court
10
under sub-section (4)(c) or (5)(c), that court must
hear and determine the matter in accordance with
this Act and any directions given by the Court of
Appeal.
Division 3--Provisions applying to Security Residents
15
166. Transfer of person with an intellectual disability
from a prison
(1) The Secretary to the Department of Justice may
by a security order transfer a person who--
(a) is lawfully imprisoned or detained in a prison
20
or other place of confinement; and
(b) is a person who has an intellectual
disability--
to a residential treatment facility or residential
institution as a security resident.
25
(2) Sub-section (1) does not apply to a person who is
detained under the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 in a prison
whether on remand or under a supervision order.
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(3) The Secretary to the Department of Justice must
not make a security order unless--
(a) the Secretary to the Department of Justice
has received a statement that the person has
an intellectual disability and a treatment plan
5
from the Secretary; and
(b) the Secretary to the Department of Justice is
satisfied as to the matters specified in sub-
section (7); and
(c) the Secretary has agreed to accept the person
10
as a security resident in a residential
treatment facility or a residential institution
specified in the order.
(4) The Secretary to the Department of Justice may
make an interim order to enable the Secretary to
15
assess whether the person specified in the order
has an intellectual disability.
(5) A person in respect of whom an interim order is
made may be conveyed to and detained in a
residential treatment facility or residential
20
institution for the period not exceeding 28 days
specified in the order.
(6) On the application of the Secretary, the Secretary
to the Department of Justice may extend the
duration of an interim order for a further period
25
not exceeding 28 days.
(7) The Secretary to the Department of Justice must
be satisfied that the making of a security order is
in the best interests of the person and the
community having regard to--
30
(a) whether any physical, mental or emotional
risk to which the person has been or may be
exposed if detained in a prison is
significantly greater than the risk to which a
person who does not have an intellectual
35
disability would be exposed; and
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(b) whether the person would be more
appropriately placed in a residential
treatment facility or residential institution
instead of a prison; and
(c) whether programs are offered by the
5
residential treatment facility or residential
institution which are designed to reduce the
likelihood of the person committing further
criminal offences; and
(d) any other matters the Secretary to the
10
Department of Justice considers relevant.
(8) If a person who is on remand is transferred to a
residential treatment facility or residential
institution under this section, the Secretary to the
Department of Justice must notify the Director of
15
Public Prosecutions of the transfer.
167. Preparation of treatment plan
(1) If the Secretary issues a statement that a person
has an intellectual disability for the purposes of
section 166, the Secretary must prepare a
20
treatment plan in respect of that person.
(2) Within 2 days of the treatment plan being
prepared, the Authorised Program Officer must--
(a) give a copy of the treatment plan to the
person with an intellectual disability; and
25
(b) lodge a copy of the treatment plan with the
Senior Practitioner.
(3) An Authorised Program Officer must provide a
report on the implementation of a treatment plan
to the Senior Practitioner at the intervals, not
30
exceeding 6 months, specified by the Senior
Practitioner.
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168. Annual review of security order and treatment plan
(1) While a security order is in force, the Authorised
Program Officer must at intervals of not more
than 12 months apply to VCAT for a review of the
treatment plan and the security order.
5
(2) In conducting a review of the treatment plan and
security order, VCAT must determine whether--
(a) the treatment plan is appropriate having
regard to the criteria specified in section
153(2); and
10
(b) the security order is appropriate having
regard to the criteria specified in section
166(7).
(3) After conducting a review under this section,
VCAT may--
15
(a) subject to sub-section (4), confirm the
treatment plan; or
(b) subject to sub-section (4), vary the treatment
plan as specified in its determination; or
(c) require the Authorised Program Officer to
20
prepare a new treatment plan; or
(d) recommend that the security order be
terminated in accordance with section 175.
(4) VCAT must not confirm or vary a treatment plan
unless VCAT is satisfied that the residential
25
treatment facility or residential institution can
implement the treatment plan.
(5) VCAT can only vary a treatment plan if the
variation is consistent with the security order.
(6) After reviewing a treatment plan, VCAT must set
30
a date within the next 12 months for the next
review.
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169. Application for review of treatment plan
(1) The Authorised Program Officer or the security
resident may at any time apply to VCAT for a
review of a treatment plan.
(2) In conducting a review of a treatment plan, VCAT
5
must determine whether the treatment plan is
appropriate having regard to the criteria specified
in section 153(2).
(3) After reviewing a treatment plan, VCAT may--
(a) subject to sub-section (4), confirm the
10
treatment plan; or
(b) subject to sub-section (4), vary the treatment
plan as specified in its determination; or
(c) require the Authorised Program Officer to
prepare a new treatment plan.
15
(4) VCAT must not confirm or vary a treatment plan
unless VCAT is satisfied that the residential
treatment facility or residential institution can
implement the treatment plan.
170. Leave of absence
20
(1) Subject to this section, the Authorised Program
Officer may allow a security resident detained in a
residential institution to be absent from the
residential institution--
(a) for the period; and
25
(b) subject to any conditions--
that the Authorised Program Officer considers
appropriate.
(2) Leave of absence under this section must be
granted--
30
(a) in accordance with the process and criteria
specified in the security resident's treatment
plan; and
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(b) subject to any directions given by VCAT or
the Senior Practitioner.
(3) The Authorised Program Officer must not allow a
security resident leave of absence unless the
Authorised Program Officer is satisfied on
5
reasonable grounds that the safety of members of
the public will not be seriously endangered as a
result of the security resident being allowed leave
of absence.
(4) The Authorised Program Officer may--
10
(a) from time to time extend the period of leave
of absence; or
(b) revoke the leave of absence and require the
security resident to return to the residential
institution.
15
(5) The Authorised Program Officer of a residential
institution must provide a report for the period of
6 months ending on 30 June and 31 December to
the Senior Practitioner specifying in respect of the
residential institution--
20
(a) the number of leaves of absence allowed;
(b) in any case where leave of absence was
considered by VCAT, details of the hearing
and the decision.
171. Special leave
25
(1) A security resident detained in a residential
institution may apply to the Authorised Program
Officer for special leave of absence specifying the
special circumstances for which the special leave
is required.
30
Note: Special leave of absence may be applied for in
relation to unplanned, one-off or emergency
situations in special circumstances such as attending
a medical appointment or a funeral in the community.
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(2) The Authorised Program Officer must grant an
application for special leave of absence if the
Authorised Program Officer is satisfied that--
(a) there are special circumstances; and
(b) the safety of members of the public will not
5
be seriously endangered.
(3) If the Authorised Program Officer refuses to grant
special leave of absence to a security resident
detained in a residential institution, the security
resident may apply to VCAT for a review of the
10
decision.
(4) On an application under sub-section (3), VCAT
may order that--
(a) special leave of absence should be allowed;
or
15
(b) special leave of absence should not be
allowed.
(5) Special leave of absence--
(a) must not exceed 24 hours except in the case
of special leave of absence for medical
20
treatment; and
(b) may be subject to any conditions as the
Authorised Program Officer or VCAT may
specify.
(6) The Authorised Program Officer of a residential
25
institution must provide a report for the period of
6 months ending on 30 June and 31 December to
the Senior Practitioner specifying in respect of the
residential institution--
(a) the number of special leaves of absence
30
granted;
(b) the special circumstances for which they
were granted.
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172. Suspension of leave of absence or special leave
(1) Leave of absence or special leave of absence
granted to a security resident detained in a
residential institution may be suspended wholly or
partly at any time by the Secretary or the
5
Authorised Program Officer if the Secretary or the
Authorised Program Officer is satisfied on
reasonable grounds that the safety of the person
on leave or members of the public will be
seriously endangered if leave or part of the leave
10
is not suspended.
(2) If leave of absence or special leave of absence is
suspended, the Secretary or the Authorised
Program Officer must as soon as is practicable
confirm the suspension in writing to the person in
15
respect of whom the leave of absence or special
leave of absence is suspended.
(3) If the Secretary or the Authorised Program Officer
is satisfied that the reason for the suspension no
longer exists, the Secretary or the Authorised
20
Program Officer must lift the suspension
immediately.
(4) A person whose leave of absence or special leave
of absence is wholly suspended under this section
is deemed not to have leave of absence or special
25
leave of absence during the period of suspension.
(5) A person whose leave of absence or special leave
of absence is partly suspended under this section
is deemed not to have the suspended part of the
leave of absence or special leave of absence
30
during the period of suspension.
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173. Security conditions
(1) A security resident detained in a residential
institution or absent from a residential institution
on leave is subject to such security conditions as
the Authorised Program Officer considers
5
necessary.
(2) A security resident detained in a residential
institution may be transported to and from any
places as may be necessary for the administration
of this Act in accordance with those security
10
conditions.
(3) A security resident detained in a residential
institution is in the custody of the person in charge
of the residential institution until the security
order under which the security resident is detained
15
in the residential institution ceases or is
terminated.
174. Apprehension of security resident absent without
leave
A security resident detained in a residential
20
institution who is absent from the residential
institution without leave of absence or special
leave of absence may be apprehended at any time
by--
(a) a member of the police force; or
25
(b) the person in charge of the residential
institution or any person employed under the
Public Administration Act 2004 and
authorised by the person in charge of the
residential institution--
30
for the purpose of being returned to the residential
institution.
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175. Termination of a security order
(1) A security order--
(a) may be terminated by the Secretary at any
time on the recommendation of VCAT; or
(b) in the case of a person serving a sentence of
5
imprisonment, terminates upon the expiry of
the sentence.
(2) If a security order is terminated the following
provisions apply--
(a) if the security resident has not completed
10
serving a sentence of imprisonment, the
person is to be transferred to a prison;
(b) if the security resident has completed a
sentence of imprisonment, the person is to be
released.
15
(3) The Secretary to the Department of Justice must
notify the Secretary when the sentence of
imprisonment of a security resident is to expire.
176. Death of security resident
If a security resident dies during detention, the
20
person in charge of the residential treatment
facility or residential institution must advise the
Secretary to the Department of Justice as to the
circumstances in which the death occurred.
177. Request for transfer to prison
25
(1) A security resident detained in a residential
treatment facility or residential institution under
section 166 may at any time apply to VCAT for
VCAT to make a recommendation to the
Secretary that the security resident be transferred
30
to a prison.
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(2) If VCAT after receiving a report from the
Secretary to the Department of Justice makes a
recommendation for the transfer of a security
resident to a prison, the Secretary may terminate
the security order.
5
(3) If the Secretary terminates the security order
under sub-section (2), the person is to be
discharged as a security resident upon being
placed in the legal custody of the Secretary to the
Department of Justice under the Corrections Act
10
1986.
178. Transfer of security resident to another residential
institution or a residential treatment facility
(1) The Secretary at the request of the Senior
Practitioner or the Authorised Program Officer
15
may by order direct the transfer of a security
resident detained in a residential institution to
another residential institution or to a residential
treatment facility if the Secretary is satisfied that
the transfer will enable that person's treatment
20
plan to be more effectively implemented.
(2) If a security resident detained in a residential
institution is transferred to another residential
institution or to a residential treatment facility any
documents relevant to the detention and care of
25
the resident must be forwarded at the same time to
that residential institution or residential treatment
facility.
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179. Notice of transfer of security resident to another
residential treatment facility or residential
institution
If a security resident is transferred to another
residential treatment facility under section 161
5
or to another residential institution under
section 178, the Secretary must notify the
Secretary to the Department of Justice that the
security resident has been transferred.
Division 4--Provisions applying to Forensic Residents
10
180. Transfer of persons detained in prison under the
Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997
(1) The Secretary to the Department of Justice may,
by order, transfer a person who--
15
(a) is detained in a prison whether on remand or
under a supervision order under the Crimes
(Mental Impairment and Unfitness to be
Tried) Act 1997; and
(b) is a person who has an intellectual
20
disability--
to a residential treatment facility or residential
institution as a forensic resident.
(2) The Secretary to the Department of Justice must
not transfer a person under sub-section (1)
25
unless--
(a) the Secretary to the Department of Justice
has received a statement that the person has
an intellectual disability and a treatment plan
from the Secretary; and
30
(b) the Secretary to the Department of Justice is
satisfied as to the matters specified in sub-
section (7); and
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(c) the Secretary has agreed to accept the person
as a forensic resident in the residential
treatment facility or residential institution
specified in the transfer order.
(3) The Secretary to the Department of Justice may
5
make an interim order to enable the Secretary to
assess whether the person specified in the order
has an intellectual disability.
(4) A person in respect of whom an interim order is
made may be conveyed to and detained in a
10
residential treatment facility or residential
institution for the period, not exceeding 28 days,
specified in the interim order.
(5) On the application of the Secretary, the Secretary
to the Department of Justice may extend the
15
duration of an interim order for a further period
not exceeding 28 days.
(6) If the Secretary issues a statement that a person
has an intellectual disability under this section, the
Secretary must prepare a treatment plan in respect
20
of that person.
(7) The Secretary to the Department of Justice must
be satisfied that the making of a transfer order is
in the best interests of the person or the
community having regard to--
25
(a) whether any physical, mental or emotional
risk to which the person has been or may be
exposed if detained in a prison is
significantly greater than the risk to which a
person who does not have an intellectual
30
disability would be exposed; and
(b) whether the person would be more
appropriately placed in a residential
treatment facility or residential institution
instead of a prison; and
35
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(c) any other matters the Secretary to the
Department of Justice considers relevant.
(8) If a person who is on remand is transferred to a
residential treatment facility or residential
institution under this section, the Secretary to the
5
Department of Justice must notify the Director of
Public Prosecutions of the transfer.
181. Status of forensic residents
A forensic resident is to be provided with services
under this Act in a residential treatment facility or
10
residential institution.
182. Leave of absence for forensic resident
A forensic resident who is subject to a supervision
order under the Crimes (Mental Impairment
and Unfitness to be Tried) Act 1997 may apply
15
for and be granted leave of absence in accordance
with Part 7 of that Act.
Division 5--Supervised Treatment Orders
183. Purpose of Division
The purpose of this Division is to provide for the
20
making of a civil order, a supervised treatment
order, to enable the detention of a person with an
intellectual disability who poses a significant risk
of serious harm to others.
184. Restrictions on liberty or freedom of movement
25
A disability service provider must not detain a
person with an intellectual disability otherwise
than in accordance with this Division.
Penalty: 240 penalty units.
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185. Use of supervised treatment
A disability service provider must not use
supervised treatment unless there is in force an
approval under section 186.
Penalty: 240 penalty units.
5
186. Approval to use supervised treatment
(1) A disability service provider who proposes to use
supervised treatment in the provision of a
disability service must apply to the Secretary for
approval.
10
(2) An application for approval must include--
(a) the prescribed details; and
(b) a request for approval of the title and rank of
any position and the name of the holder of
the position to be appointed as an Authorised
15
Program Officer for the disability service
provider.
(3) The Secretary may grant an application for
approval subject to any conditions that the
Secretary considers appropriate.
20
(4) In the case of a disability service in respect of
which the disability service provider is the
Secretary, the Secretary--
(a) is to be taken to be approved to use
supervised treatment; and
25
(b) must ensure that an Authorised Program
Officer is appointed for the disability
service; and
(c) must approve the title and rank of any
position and the name of the holder of the
30
position to be appointed as the Authorised
Program Officer.
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187. Revocation of approval
(1) The Secretary may revoke the approval of a
disability service provider to use supervised
treatment if the Secretary considers it appropriate
to do so.
5
(2) For the purposes of sub-section (1), the Secretary
may have regard to the following--
(a) the registration of the disability service
provider has been revoked;
(b) the disability service provider has failed to
10
comply with requirements under this Act;
(c) any other circumstances that the Secretary
considers relevant.
188. Notice before refusal or revocation
(1) The Secretary must not refuse an application
15
under section 186 or revoke the approval of a
disability service provider to use supervised
treatment under section 187(1) unless the
Secretary has given a notice in writing to the
disability service provider in accordance with sub-
20
section (2) and has considered any submission
made by the disability service provider.
(2) The notice must specify--
(a) the proposed decision and the reasons for the
proposed decision;
25
(b) that the disability service provider may make
a submission in writing within 14 days of the
notice being given.
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189. Application for review
(1) A disability service provider may apply to VCAT
for a review of a decision by the Secretary--
(a) to refuse an application under section 186; or
(b) to revoke the approval of a disability service
5
provider to use supervised treatment under
section 187(1).
(2) An application for review must be made within
28 days after the later of--
(a) the day on which the decision is made; or
10
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998, the
disability service provider requests a
statement of reasons for the decision, the day
on which the statement of reasons is given to
15
the disability service provider or the
disability service provider is informed under
section 46(5) of that Act that a statement of
reasons will not be given.
190. Authorised Program Officers
20
(1) An Authorised Program Officer must ensure that
any supervised treatment used in the provision of
a disability service for which the Authorised
Program Officer is responsible is administered in
accordance with this Division.
25
(2) A disability service provider must advise the
Senior Practitioner of the name and qualifications
of any person appointed as an Authorised Program
Officer in the manner and within the period
determined by the Senior Practitioner.
30
Penalty: 10 penalty units.
(3) The Senior Practitioner must keep a register of the
name and qualifications of each Authorised
Program Officer.
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191. Application for a supervised treatment order
(1) An Authorised Program Officer may apply to
VCAT for a supervised treatment order to be
made in respect of a person--
(a) who has an intellectual disability;
5
(b) who is receiving residential services;
(c) in respect of whom the disability service
provider has prepared a treatment plan
approved by the Senior Practitioner;
(d) who meets the criteria specified in sub-
10
section (6).
(2) The Senior Practitioner may direct an Authorised
Program Officer to make an application under
sub-section (1) in respect of a person if the Senior
Practitioner considers that the person--
15
(a) has an intellectual disability;
(b) is receiving residential services;
(c) is being detained to prevent a significant risk
of serious harm to another person without a
supervised treatment order applying.
20
(3) An application under sub-section (1) must include
a certificate given by the Senior Practitioner
which specifies that the person in respect of whom
the application is made--
(a) has an intellectual disability;
25
(b) is receiving residential services;
(c) has a treatment plan approved by the Senior
Practitioner.
(4) An Authorised Program Officer must notify the
Public Advocate that the Authorised Program
30
Officer has made an application under sub-
section (1).
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(5) On the application of the Public Advocate, VCAT
may join the Public Advocate as a party to a
proceeding relating to an application under sub-
section (1)
(6) VCAT can only make a supervised treatment
5
order if VCAT is satisfied that--
(a) the person has previously exhibited a pattern
of violent or dangerous behaviour causing
serious harm to another person or exposing
another person to a significant risk of serious
10
harm;
(b) there is a significant risk of serious harm to
another person which cannot be substantially
reduced by using less restrictive means;
(c) the services to be provided to the person in
15
accordance with the treatment plan will be of
benefit to the person and substantially reduce
the significant risk of serious harm to another
person;
(d) the person is unable or unwilling to consent
20
to voluntarily complying with a treatment
plan to substantially reduce the significant
risk of serious harm to another person;
(e) it is necessary to detain the person to ensure
compliance with the treatment plan and
25
prevent a significant risk of serious harm to
another person.
(7) The treatment plan must include provisions
which--
(a) specify the treatment that will be provided to
30
the person during the period of the
supervised treatment order;
(b) state the expected benefit to the person of the
treatment;
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(c) specify any restrictive interventions that are
to be used;
(d) state the level of supervision which will be
required to ensure that the person
participates in the treatment;
5
(e) set out a proposed process for transition of
the person to lower levels of supervision and,
if appropriate, to living in the community
without a supervised treatment order being
required.
10
192. Interim supervised treatment order by VCAT
(1) If an application for a supervised treatment order
has been made under section 191, VCAT may at
the request of the Authorised Program Officer
make an interim supervised treatment order
15
having effect until the application for a supervised
treatment order is determined.
(2) VCAT can only make an interim supervised
treatment order if VCAT is satisfied that it is
necessary to detain the person to ensure
20
compliance with the treatment plan and prevent a
significant risk of serious harm to another person
until the application for a supervised treatment
order is determined.
193. Supervised treatment order
25
(1) On an application under section 191, VCAT
may--
(a) if it is satisfied that the matters specified in
section 191(1) apply in respect of the person
who is the subject of the application, make a
30
supervised treatment order; or
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(b) subject to sub-section (2), if it is satisfied
that the matters specified in section 191(1)
apply in respect of the person who is the
subject of the application but considers that
the treatment plan should be varied, make a
5
supervised treatment order subject to the
treatment plan being varied as specified by
VCAT; or
(c) if it is not satisfied that the matters specified
in section 191(1) apply in respect of the
10
person who is the subject of the application,
dismiss the application.
(2) VCAT must not make a supervised treatment
order under sub-section (1)(b) unless VCAT is
satisfied that the disability service provider can
15
implement the supervised treatment order and the
variation of the treatment plan.
(3) A supervised treatment order must--
(a) state that the Authorised Program Officer is
responsible for the implementation of the
20
supervised treatment order;
(b) require the person to whom the supervised
treatment order applies to reside in premises
approved by the Authorised Program
Officer;
25
(c) refer to the treatment plan which must be
attached to the supervised treatment order;
(d) specify the period for which the supervised
treatment order is to continue in force, being
a period not exceeding 1 year.
30
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(4) A supervised treatment order may--
(a) specify conditions to which the person is
subject;
(b) require the person to participate in treatment
specified in the treatment plan or in
5
treatment specified in the supervised
treatment order;
(c) state the intervals at which the supervised
treatment order is to be reviewed.
(5) Sub-section (3)(d) does not prevent the making of
10
another supervised treatment order before the
expiry of the current supervised treatment order.
(6) There is no limit on the number of applications
that can be made for a supervised treatment order.
194. Application by the Public Advocate
15
(1) If--
(a) the Authorised Program Officer has not
made an application under section 191 for a
supervised treatment order to be made in
respect of a person; and
20
(b) the Public Advocate considers that the
person is being detained to prevent a
significant risk of serious harm to another
person without a supervised treatment order
applying--
25
the Public Advocate may apply to VCAT for an
order directing the Authorised Program Officer to
make an application under section 191 in respect
of that person.
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(2) If on an application under sub-section (1) VCAT
considers that the matters referred to in sub-
section (1)(b) may be satisfied, VCAT may make
an order directing that--
(a) the Authorised Program Officer make an
5
application under section 191 within 28 days
of the date that the order is made; and
(b) the Public Advocate is to be a party to the
application.
195. Supervision of supervised treatment order
10
(1) The Senior Practitioner is responsible for
supervising the implementation of a supervised
treatment order.
(2) An Authorised Program Officer must provide a
report on the implementation of a supervised
15
treatment order to the Senior Practitioner at the
intervals, not exceeding 6 months, specified by the
Senior Practitioner.
(3) Subject to sub-section (4), a material change
cannot be made to a treatment plan unless the
20
change is approved by the Senior Practitioner.
(4) Unless sub-section (5) applies, if a material
change to a treatment plan relates to an increase in
the level of supervision or restriction--
(a) the Senior Practitioner cannot approve the
25
change; and
(b) the Authorised Program Officer must apply
to VCAT for a variation of the treatment
plan under section 196.
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(5) Despite sub-section (4), if the Senior Practitioner
considers that an increase in the level of
supervision or restriction of a person who is
subject to a supervised treatment order is
necessary because of an emergency, the Senior
5
Practitioner--
(a) may approve a material change to the
treatment plan of the person subject to the
supervised treatment order relating to the
increase in the level of supervision or
10
restriction; and
(b) must immediately apply to VCAT for a
variation of the treatment plan under
section 196.
(6) The Senior Practitioner must, as soon as is
15
practicable before the change has effect, notify in
writing the person who is subject to the supervised
treatment order of the change to the treatment plan
approved by the Senior Practitioner.
196. Application for review, variation or revocation
20
(1) The Senior Practitioner, the Authorised Program
Officer or