Disability Amendment Bill 2022
Assembly - second reading

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Disability Amendment Bill 2022

Introduction Print

EXPLANATORY MEMORANDUM

Clause Notes

Part 1—Preliminary

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

• to amend the Disability Act 2006 in relation to—

• the Secretary's functions under that Act; and

• the sharing of information about persons with a

disability and persons subject to restrictive

practices and supervised treatment orders; and

• residential services; and

• the compulsory treatment of persons with an

intellectual disability; and

• other related matters; and

• to amend the Residential Tenancies Act 1997 in

relation to SDA enrolled dwellings;

• to amend the Disability Service Safeguards Act 2018

in relation to registration requirements.

The Bill also makes consequential and other related amendments

to various Acts.

Clause 2 is the commencement provision.

Subclause (1) provides that the Bill (except Division 2 of Part 2

and Parts 3, 4 and 6) comes into operation on the day after the

day on which it receives the Royal Assent.

591366 BILL LA INTRODUCTION 3/8/2022

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Subclause (2) provides that, subject to subclause (3), the

remaining provisions of the Bill will commence on a day or days

to be proclaimed.

Subclause (3) provides that if a provision referred to in subclause

(2) does not come into operation before 30 September 2023, it

comes into operation on that day. The default commencement

date will enable time for implementation.

Part 2—Amendment of Disability Act 2006

Division 1—Amendment of Disability Act 2006

Clause 3 amends section 1(b) of the Disability Act 2006 to also refer to

DSOA clients, to reflect that the Disability Act 2006, as

amended by this Bill, will now also protect the rights of those

persons in relation to the use of restrictive practices.

Clause 4 inserts, amends and repeals the definitions of various words and

expressions used in the Disability Act 2006.

Subclause (1)(a) substitutes a new definition of Authorised

Program Officer to reflect that Authorised Program Officers are

now approved by the Senior Practitioner, instead of the Secretary,

for both disability service providers and registered NDIS

providers. Currently the Secretary approves Authorised Program

Officer appointments for disability service providers whilst the

Senior Practitioner does so for registered NDIS providers.

Subclause (1)(b) amends the definition of Department to reflect

recent machinery of government changes.

Subclause (1)(c) repeals the definition of Disability Services

Board to reflect the dissolution of that Board by clause 18 of this

Bill.

Subclause (1)(d) inserts "DSOA client" into the definitions of

NDIS behaviour support plan, NDIS plan and restrictive

practice. This is to reflect that those definitions now also apply

to DSOA clients, as well as NDIS participants.

Subclause (1)(e) inserts "DSOA client" into the definition of

short-term accommodation and assistance dwelling. This is to

reflect that this definition now also applies to DSOA clients, as

well as NDIS participants.

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Subclause (1)(f) substitutes "193" for "191" in the definition of

supervised treatment order to reflect the change to the provision

under which a supervised treatment order is made by VCAT.

Subclause (1)(g) substitutes "189" for "191" in the definition of

treatment plan to reflect numbering changes.

Subclause (2) inserts definitions of health information, Minister

approved premises, Minister approved premises resident,

personal information and primary service provider into

section 3(1). These are consequential amendments to reflect new

defined terms introduced by the Bill.

Subclause (3)(a) substitutes "2020" for "2016" in the definition of

SDA enrolled dwelling, to reflect the revised year of the

Commonwealth's National Disability Insurance Scheme

(Specialist Disability Accommodation) Rules.

Subclause (3)(b) substitutes the definition of residential service,

which means residential accommodation that is provided by or on

behalf of or by arrangement with a disability service provider,

that is provided as accommodation in which residents are

provided with disability services, that is supported by rostered

staff that are provided by a disability service provider and

admission to which is approved by the Secretary, or prescribed

accommodation or accommodation provided by a disability

service provider that is approved by the Senior Practitioner under

section 187.

Subclause (3)(c) inserts the definition of specialist forensic

disability accommodation, which means accommodation

determined by the Secretary to be specialist forensic disability

accommodation under section 61B.

Subclause (4)(a) substitutes "DSOA client" for "CoS supported

accommodation client" in the definition of SDA resident, to

reflect the new replacement term introduced in this Bill.

Subclause (4)(b) inserts a grammatical change into the definition

of Victorian Disability Worker Commissioner.

Subclause (4)(c) inserts the definition of DSOA client, which

means older persons who receive supports under the

Commonwealth Disability Support for Older Australians

program or a prescribed program and who are not NDIS

participants. The term replaces the previous defined term CoS

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supported accommodation client to reflect the new name of the

program, and to allow flexibility if a new program is introduced.

Subclause (4)(c) also inserts the definition of DSOA client's

guardian and the definition of Victorian WorkCover Authority.

Subclause (4)(d) repeals the definition of CoS supported

accommodation client as this term is being replaced by DSOA

client in this clause.

Clause 5 inserts new section 3B into the Disability Act 2006, to provide

that a registered NDIS provider is taken to be providing a

residential service where a registered NDIS provider is using

supervised treatment and the accommodation provided to a

person subject to a supervised treatment order is approved by the

Senior Practitioner under section 187. This is to ensure that the

obligations and protections provided in residential services apply

in these circumstances.

Clause 6 inserts new section 3C into the Disability Act 2006 to provide

clarification about when a disability service provider or

registered NDIS provider is considered to be a primary service

provider. The provider providing the majority of support to a

person within the person's accommodation is the primary service

provider. If more than one provider is providing an equal amount

of support, then the primary service provider may be appointed

by the Senior Practitioner. However, for the purposes of the

sections specified in subsection (3) of new section 3C, if a

supervised treatment order has been made, then the primary

service provider is the one that appointed the Authorised Program

Officer stated in the order as being responsible for the

implementation of the order. As sections throughout the

Disability Act 2006 impose certain obligations and requirements

on the primary service provider, this section is intended to

provide clarity as to which provider bears this responsibility.

Clause 7 amends section 4(h) of the Disability Act 2006 to also refer to

DSOA clients, to reflect that one of the objectives of the

Disability Act 2006 is now to also provide an authorisation

process for the use of restrictive practices on DSOA clients, in

addition to NDIS participants.

Clause 8 amends section 5 of the Disability Act 2006.

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Subclause (1) amends section 5(3)(f) to adopt gender inclusive

language.

Subclause (2) amends section 5(3A) to refer to DSOA clients, in

addition to NDIS participants, with respect to restrictive practices

so that restrictive practices used on those persons should be

provided in the specified manner.

Subclause (3) amends section 5(4) to also refer to DSOA clients,

in addition to NDIS participants, to provide that any restriction

on the rights or opportunities placed on those persons should be

the least restrictive on those persons as is possible in the

circumstances.

The amendments in subclauses (2) and (3) reflect that the

restrictive practices provisions will also apply to DSOA clients as

amended by this Bill.

Clause 9 amends section 6(3) of the Disability Act 2006 to adopt gender

inclusive language.

Clause 10 amends section 7 of the Disability Act 2006 so that the

requirements specified for providing advice, notices or

information under the Disability Act 2006 also apply to DSOA

clients in addition to persons with a disability and NDIS

participants.

Clause 11 amends section 8 of the Disability Act 2006 to amend the roles

and functions of the Secretary for the purposes of the Disability

Act 2006.

Subclause (1)(a) omits the reference to "the Commonwealth State

Territory Disability Agreement" in section 8(1)(c), so that the

Secretary's collection and analysis of data now only relates to

complying with reporting requirements for the purposes of the

Disability Act 2006 rather than that Agreement given that

Agreement has expired.

Subclause (1)(b) repeals section 8(1)(ca), under which the

Secretary may currently set requirements in relation to screening

of persons employed or engaged, or to be employed or engaged,

by disability service providers for the purpose of providing

services to persons with a disability. The Secretary is to no

longer perform these functions.

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Subclause (2) amends section 8(2)(j) to expand the Secretary's

function to include making recommendations and reports to the

Minister about matters relating to DSOA clients in addition to

persons with a disability and NDIS participants.

Clause 12 amends section 10(2) of the Disability Act 2006 to remove the

maximum time period of a contract entered into by the Secretary

under section 10(1) for the provision of goods or services to

persons with a disability or that relate to the administration of the

Disability Act 2006. The maximum time period is currently set

at 3 years. The purpose of this amendment is to enable such

contracts to be made for a longer period where required.

Clause 13 amends section 10A of the Disability Act 2006 to update the

Secretary's powers in relation to land.

Subclause (1) amends section 10A(1) so that the Secretary may

exercise the Secretary's powers in relation to land for the

purposes of being an SDA provider, as well as for the purposes of

the Disability Act 2006.

Subclauses (2) and (3) substitute departmental references to

reflect recent machinery of government changes.

Subclause (4) inserts a new section 10A(4) which creates a power

for the Secretary to dispose of land or deal with an interest in

land with or without consideration for the purpose of providing

services under the Disability Act 2006 or the NDIS Act.

Clause 14 amends section 10B of the Disability Act 2006 to substitute

departmental references to reflect recent machinery of

government changes.

Clause 15 amends section 10C of the Disability Act 2006 to substitute

departmental references to reflect recent machinery of

government changes.

Clause 16 amends section 14(3) and (7) of the Disability Act 2006 to adopt

gender inclusive language.

Clause 17 repeals section 16(1)(i), (j) and (m)(i) of the Disability Act 2006.

These subsections refer to the Disability Services Board, which is

being dissolved by clause 18 of this Bill.

Clause 18 repeals Division 4 of Part 3 of the Disability Act 2006. This has

the effect of dissolving the Disability Services Board.

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Clause 19 amends section 24(1) of the Disability Act 2006 to expand the

functions of the Senior Practitioner.

Subclauses (a) and (d) ensure that the Senior Practitioner can

develop guidelines and standards, and give directions to disability

service providers and registered NDIS providers, about the

appointment of Authorised Program Officers.

Subclause (b) inserts new paragraph (aab) to provide the Senior

Practitioner with a new function regarding promoting the

reduction and elimination of the use of restrictive practices by

disability service providers and registered NDIS providers to the

greatest extent possible.

Subclause (c) amends section 24(1)(c) to expand the Senior

Practitioner's function regarding provision of information with

respect to the rights of a person with a disability or NDIS

participant subject to restrictive practices or compulsory

treatment to also refer to DSOA clients. This amendment reflects

that the restrictive practices provisions will also apply to DSOA

clients as amended by this Bill, and therefore fall within the role

of the Senior Practitioner.

Clause 20 amends section 25(2)(a) of the Disability Act 2006 so that the

Senior Practitioner may only delegate their powers, duties or

functions to a person with sufficient knowledge and expertise

regarding DSOA clients, in addition to NDIS participants and

persons with a disability. This amendment reflects that the

restrictive practices will also apply to DSOA clients and therefore

fall within the role of the Senior Practitioner.

Clause 21 amends section 26(1) and (2) of the Disability Act 2006 to adopt

gender inclusive language in relation to the provision of staff and

contractors to assist the Senior Practitioner.

Clause 22 amends section 27 of the Disability Act 2006.

Subclause (1) adds references in section 27(2) to Minister

approved premises to reflect the new type of premises in new

section 129AA inserted by clause 35 so that the Senior

Practitioner has the power to visit and inspect these premises, in

addition to premises where other disability services or services

under the NDIS are provided.

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Subclauses (2) and (3) add references to DSOA clients to section

27(5) and (5B) to expand the Senior Practitioner's duties and

powers regarding authorisation or prohibition of the use of

restrictive practices to DSOA clients, in addition to persons with

a disability and NDIS participants. This is to reflect that the

restrictive practices provisions will also apply to those persons as

amended by this Bill, and therefore fall within the role of the

Senior Practitioner.

Clause 23 amends section 30A(2) of the Disability Act 2006 so that the

functions of a community visitor when visiting short-term

accommodation dwellings applies to DSOA clients, along with

persons with a disability and NDIS participants.

Clause 24 inserts a new section 30B into the Disability Act 2006.

The new section 30B outlines the functions of a community

visitor when visiting a Minister approved premises and provides

clarity about the safeguards community visitors provide

residents.

Clause 25 amends section 34(1) of the Disability Act 2006 to expand

community visitor's current reporting requirements to also

require reports on visits to Minister approved premises to reflect

the community visitors' new power under the Bill to visit such

premises.

Clause 26 amends section 49 of the Disability Act 2006, so that a request

for the provision of disability services by a person with a

disability, or on their behalf, is made to the Secretary in relation

to services provided by, or funded by, the Secretary.

Subclause (1) amends section 49(1) to specify that the request is

to be made for the Secretary to provide access to disability

services that are provided, funded or contracted by the Secretary.

This amendment is intended to reduce duplication of

responsibilities and streamline provisions by ensuring that the

Secretary is only responsible for services that they fund or

contract under sections 9 and 10 of the Disability Act 2006.

Subclause (2) amends section 49(2) to refer to the power of the

Secretary to make a decision on a request under section 49(1),

rather than a disability service provider. This is to reflect that the

Secretary now receives the requests under section 49(1).

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Subclause (3) substitutes section 49(3) and (4). The new

section 49(3) provides that the Secretary may require the person

who makes a request, or the person in respect of whom the

request was made, under subsection (1) to provide more

information or to undergo a formal assessment.

The new section 49(4) requires the Secretary to notify the person

who made the request and the person in respect of whom the

request was made (if the request was made on that person's

behalf) within 14 days of making a decision. The notice must

include the specified matters. This amendment is to ensure that

each person is given timely notice of a decision.

Subclause (4) amends section 49(5) so that if the Secretary agrees

to a request for access to disability services without requiring an

assessment, this is not evidence that the person to be given access

has a disability. Previously, this referred to disability service

providers agreeing to provide disability services and reflects that

disability service providers no longer have a role in access

requests.

Clause 27 substitutes section 50 of the Disability Act 2006 with new

sections 50 and 50A. This amendment is to enable the Secretary

to determine a request under section 49(1), protect the privacy of

a person who has made a request under section 49(1), and to

provide for review of a decision made by the Secretary under

section 50(1) by VCAT.

The new section 50 provides the Secretary with the ability to

make a decision on whether or not a person has a disability for

the purposes of a request under section 49(1) for access to

disability services. The section allows the Secretary to request

any relevant information (including personal information and

health information) about the person who is the subject of the

request, though the Secretary must obtain the consent of the

person, their guardian or the person who made the request (if not

the person or their guardian, and the Secretary cannot obtain the

consent of the person or their guardian). A person or body

receiving a request is authorised to provide the information. The

Secretary may determine the appropriate process for making a

decision as to disability, and may undertake a formal assessment.

A formal assessment is to be commenced within 30 days of

receiving a request under section 49(1), but may be deferred for

up to 3 months if the Secretary believes that any formal

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assessment completed before then is unlikely to establish reliably

whether or not the person has a disability.

The new section 50A provides for the ability to make an

application to VCAT for review of a decision made under

section 50(1).

Clause 28 substitutes section 56(1) of the Disability Act 2006 to set out the

main purpose of Part 5, which is to enable the support and

treatment needs of persons with a disability to be met and to

impose obligations on disability service providers providing

residential services.

Clause 29 amends section 57 of the Disability Act 2006. The amendments

serve to provide persons with a disability better protection by

ensuring they are sufficiently informed about their treatment and

the services they will receive.

Subclause (1) substitutes section 57(1A) and (1B) with a new

section 57(1A). The new section 57(1A) requires that, in

circumstances where more than one disability service provider

provides residential services at a residential service, only the

disability service provider delivering the majority of the services

at the residential service is required to comply with subsection

(1) (regarding provision of residential statements). This

amendment provides greater clarity regarding which provider is

responsible for compliance.

Subclauses (2) and (3) amend section 57(2) and insert a new

section 57(3A) to provide further protections and entitlements to

persons with a disability and their guardians and administrators,

by requiring that additional information be included in the

residential statement, and that they be informed of variations to

their treatment plans, including any revised conditions,

requirements or restrictions.

Subclause (4) amends section 57(4) so that the current obligation

for a residential statement to not be inconsistent with the

Disability Act 2006 is expanded to ensure it is not inconsistent

with any directions, conditions of orders or orders a person with a

disability has been made subject to under any Act.

Subclause (5) amends section 57(5) to provide that any

inconsistency in information may not be used or relied upon.

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Subclause (6) amends section 57(7) to require that additional

specified information be included in the statement of resident's

rights and duties. This amendment is to ensure that the resident

is better informed of their rights and duties and their right to seek

assistance from the disability service provider to contact an

advocate.

Clause 30 amends section 58 of the Disability Act 2006 to impose

additional obligations on disability service providers, and alter

the circumstances under which a resident's privacy or access to,

proper use and enjoyment of premises may be limited or

interfered with under section 58.

Subclause (1) makes various amendments to section 58(1)

regarding the duties of a disability service provider providing

residential services to a resident.

Subclause (1)(a) removes the requirement at section 58(1)(a) for

the disability service provider to have due regard to the resident's

entitlement to privacy because this is covered by the current

subsection (1)(f) and the new subsection (2A) inserted by

subclause (3).

Subclause (1)(b) amends section 58(1)(e) to adopt gender

inclusive language.

Subclause (1)(c) makes section 58(1)(f), which limits the power

of disability service providers to unreasonably interfere with a

resident's right to privacy or proper use and enjoyment of the

premises, subject to new subsection (2A). Subsection (2A), as

inserted by clause 30(3) of this Bill, sets out circumstances in

which a resident's privacy or proper use and enjoyment of the

premises is not unreasonably interfered with or limited.

Subclause (1)(d) substitutes the phrase "support services" with

"support and treatment" in section 58(1)(h)(ii) so that a disability

service provider is required to be accessible to residents in terms

of the provider's contact hours having regard to the support and

treatment provided to residents. This is to align with the

language used in the Act.

Subclause (1)(e) inserts additional obligations on disability

service providers providing residential services to ensure that

they—

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• take reasonable steps to support the resident in relation

to the implementation of any treatment plan or

behaviour support plan and in relation to community

access; and

• disclose information relating to the treatment, support

and safety needs of the resident with other service

providers in accordance with the Disability Act 2006 or

any other Act.

Subclause (1)(f) substitutes section 58(1)(i). Disability service

providers will now be required to—

• ensure the residents receive any information which they

are required to be given under Part 5 of the Disability

Act 2006 and that such information complies with

section 7 of the Act for the purpose of providing advice

information or notices to residents; and

• take reasonable steps to support a person with a

disability to understand and comply with any direction

or order, or condition on any order, or any treatment

plan, that the person is subject to and which requires the

person to live at the residential service; and

• if the disability service provider suspects that a direction

or an order, or condition on any order, that a person

with a disability is subject to and that requires the

person to live at the residential service has been

breached, report the suspected breach to the responsible

authority.

Subclause (2) inserts a new paragraph (d) after section 58(2)(c).

This amendment is to ensure that the disability service provider is

not regarded as unreasonably limiting or interfering with a

resident's access to the resident's room, toilet, bathroom or

common areas of the premises if they impose the limitation or

restriction in accordance with a direction, a civil or criminal order

or a condition on any order to which the resident is subject

requiring the person to reside at the residential service.

Subclause (3) inserts a new section 58(2A), which provides

circumstances in which a resident's privacy or proper use and

enjoyment of premises is not unreasonably interfered with or

limited. This includes where the limitation or restriction is

imposed in accordance with—

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• the resident's behaviour support plan or treatment plan;

or

• a direction given by the Senior Practitioner; or

• a direction, a civil or criminal order, or a condition on

any order to which the resident is subject requiring the

person to reside at the residential service.

Subclause (4) amends section 58(3) so that a disability service

provider must implement strategies to minimise the impact on

other residents of a limitation or restriction imposed under new

section 58(2A), in addition to section 58(2).

Subclause (5) inserts a new section 58(5) to define responsible

authority as the entity responsible for supervising an order a

person with a disability is subject to that requires the person to

reside at a residential service or the person who has directed a

person with a disability to reside at a residential service.

Clause 31 amends section 59 of the Disability Act 2006 regarding the

duties of residents.

Subclause (1) amends section 59(1) to repeal paragraph (a),

clarify that under paragraph (b), residents are only required to

pay residential charges if there are any, and inserts a new

subsection (1)(f). New subsection (1)(f) requires residents to

comply with any direction or order, or condition of any direction

or order, that the resident is subject to that requires the resident to

live at the residential service.

Subclause (2) inserts a new section 59(2)(e), which prohibits a

resident from knowingly and intentionally breaching any

conditions specified in their residential statement.

Clause 32 amends section 60 of the Disability Act 2006. This is to set out

the circumstances in which a disability service provider may

enter a resident's room.

Subclause (1) inserts a new section 60(2)(ca) to provide that a

disability service provider may enter a resident's room without

giving notice if the provider suspects on reasonable grounds that

there has been a breach of a direction, a civil or criminal order or

a condition of an order that the resident is subject to that requires

the resident to reside at the residential service.

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Subclause (2) omits "if" in section 60(2)(c) and (d) to remove

duplication.

Subclause (3) amends section 60(2)(f) so that a disability service

provider may enter a resident's room without notice if it is

necessary to provide support or assistance to the person which is

related to the person's disability. Currently, entry is permissible

to provide support services or support specified in the resident's

support plan. This reflects that it may be necessary to enter a

room to provide both support and assistance.

Subclause (4) repeals section 60(3) as the definition of support

services is no longer required.

Clause 33 inserts new sections 61A and 61B into the Disability Act 2006

regarding termination of residency in residential service, and

determination of specialist forensic disability accommodation.

Section 61A provides for the circumstances where a residency in

a residential service is terminated. This includes—

• if the period of residency has expired and there is no

written extension; or

• if a person is no longer subject to a direction or order

requiring them to live at the residential service and

suitable alternative premises are available; or

• if the person has moved to another premises; or

• if the person has resided elsewhere for at least 3 months

in accordance with a court order or direction and there

has been no agreement to continue the residential

service; or

• if the disability service provider gives notice in writing

that the residency will end; or

• by agreement in writing.

Under a new section 61A(2), a disability service provider who is

a funded service provider or a contracted service provider must

comply with any guidelines issued by the Secretary regarding

termination of residency and notify the Secretary of any proposed

termination under new section 61A(1)(d) and (e) at least 30 days

prior to the termination.

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Section 61B enables the Secretary to determine accommodation

provided by a disability service provider that provides forensic

disability support and treatment to people with an intellectual

disability, an acquired brain injury or certain neurological

impairments to be specialist forensic disability accommodation.

If the Secretary does so, the Secretary must notify the Public

Advocate within 7 days.

Clause 34 amends section 62(3) of the Disability Act 2006 so that it is not

an offence under section 62 to interfere with a person's rights if

the interference is in accordance with new section 58(2A)

(inserted by clause 30(3)).

Clause 35 inserts a new section 129AA before section 129 of the Disability

Act 2006. This enables the Minister to specify Minister

approved premises by notice published in the Government

Gazette.

Clause 36 amends section 129 of the Disability Act 2006 to extend

community visitors' visitation rights to Minister approved

premises.

Subclause (1) amends the heading to section 129 to reflect that

section 129 applies to visiting "Minister approved premises",

along with residential services and NDIS dwellings.

Subclause (2) inserts a new section 129(1C) which allows a

community visitor to visit any Minister approved premises with

or without any previous notice at the times and periods that the

community visitor thinks fit.

Subclause (3) inserts a new section 129(5A) to enable the

Minister to direct a community visitor to visit a Minister

approved premises at the times the Minister directs.

Clause 37 amends section 130 of the Disability Act 2006.

Subclause (1) amends section 130(3) of the Disability Act 2006

to ensure a community visitor's inspection powers when visiting

a residential service apply to both NDIS participants and DSOA

clients.

Subclause (2) inserts a new subsection (4) after section 130(3) of

the Disability Act 2006 to provide for a community visitor's

entitlements when visiting a Minister approved premises. These

include the ability to inspect any part of the premises in which a

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person with a disability, an NDIS participant or a DSOA client is

living, to see any person with a disability, NDIS participant or

DSOA client living in the premises and to make enquiries and

inspect documents relating to a person with a disability, an NDIS

participant or a DSOA client.

Clause 38 amends section 132 of the Disability Act 2006 to insert a new

subsection (2A), which provides that if a disability service

provider or registered NDIS provider is present when a

community visitor visits a Minister approved premises, the

disability service provider or registered NDIS provider must keep

a record of the visit. This is to ensure appropriate record-keeping

of these types of visits. Failure to comply is an offence

punishable by a maximum penalty of 5 penalty units.

Clause 39 inserts new section 131B after section 131A of the Disability

Act 2006. This provides for a process by which any Minister

approved premises resident or any person on their behalf may

request the disability service provider or registered NDIS

provider (as appropriate) to arrange for the Minister approved

premises resident to be seen by a community visitor. The

provider must notify the Community Visitors Board within

72 hours of the request being received. Failure to notify is an

offence punishable by a maximum penalty of 5 penalty units.

The Community Visitors Board must respond to the request

within 7 days of receiving it. The Community Visitors Board

may refuse a request if it considers that the request is vexatious,

frivolous or lacking in substance.

Clause 40 amends the heading to Part 6A of the Disability Act 2006 to omit

the reference to registered NDIS providers as Part 6A will apply

to appointment of Authorised Program Officers by both disability

service providers and registered NDIS providers.

Clause 41 substitutes section 132ZI of the Disability Act 2006 so that a

disability service provider or a registered NDIS provider must

appoint at least one Authorised Program Officer if the provider

intends to use restrictive practices on a person under Part 7 or

compulsory treatment or restrictive practices on a person under

Part 8. Currently, section 132ZI only imposes this requirement

on registered NDIS providers as the Secretary currently approves

Authorised Program Officer appointments for disability service

providers under Part 7. This is to ensure that there are consistent

obligations for both types of providers.

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Clause 42 amends section 132ZJ of the Disability Act 2006 to provide that

disability service providers, like registered NDIS providers, are

also required to seek the Senior Practitioner's approval for any

proposed appointment of an Authorised Program Officer.

Clause 43 amends section 132ZL of the Disability Act 2006 so that the

Senior Practitioner must notify the Secretary in the case of a

disability service provider or the NDIS Commissioner in the case

of a registered NDIS provider if the Senior Practitioner refuses to

approve an appointment, or revokes an appointment, of an

Authorised Program Officer. Currently, this section only

requires notice to the NDIS Commissioner, which will not be

relevant for non-NDIS participants.

Clause 44 amends section 132ZM of the Disability Act 2006 so that the

obligations on the Senior Practitioner to notify a registered NDIS

provider before refusing, or revoking, an Authorised Program

Officer appointment also apply to disability service providers.

This is to reflect the new requirement that disability service

providers must seek the Senior Practitioner's approval for any

proposed appointment of an Authorised Program Officer.

Clause 45 amends section 132ZN of the Disability Act 2006 so that

disability service providers, in addition to registered NDIS

providers, may seek VCAT review of the Senior Practitioner's

decision to refuse to approve the appointment, or revoke the

appointment, of an Authorised Program Officer. This is to reflect

the new requirement that disability service providers seek the

Senior Practitioner's approval for any proposed appointment of

an Authorised Program Officer.

Clause 46 amends section 132ZO of the Disability Act 2006 so that the

Senior Practitioner may issue directions to disability service

providers, in addition to registered NDIS providers, regarding

training, qualifications or other matters relating to Authorised

Program Officers. In addition, the Senior Practitioner is given

the new power to issue directions requiring a disability service

provider or registered NDIS provider to appoint an Authorised

Program Officer.

Clause 47 substitutes a new Part 7 for existing Parts 6B and 7 of the

Disability Act 2006. New Part 7 relates to the use of restrictive

practices by disability service providers and registered NDIS

providers. Currently, use of restrictive practices by registered

18

NDIS providers is addressed by Part 6B, and their use by

disability service providers is addressed by Part 7. It is intended

that these be consolidated into one part to remove any

inconsistencies as most disability service providers are also

registered NDIS providers.

New section 133(1) and (2) provides the application of Part 7.

Part 7 applies in respect of persons who receive disability

services, are NDIS participants or are DSOA clients. Part 7 does

not apply to persons for whom a treatment plan is in force or is

required to be prepared under Part 8 unless the person is an NDIS

participant who is subject to—

• restrictive practices from a registered NDIS provider;

and

• a treatment plan prepared by or on behalf of the

Authorised Program Officer for a disability service

provider that is not in accordance with the requirements

of the NDIS (Restrictive Practices and Behaviour

Support) Rules.

New section 133(3) provides that the purpose of Part 7 is to

protect the rights of these people by ensuring the use of

restrictive practices and regulated restrictive practices is

appropriately authorised.

New section 133(4) provides that a provider that is both a

disability service provider and a registered NDIS provider is only

required to comply with Part 7 in one of those capacities, but not

both.

New section 134 provides that an Authorised Program Officer

must ensure that any restrictive practice used on a person in

respect of whom Part 7 applies in the provision of a disability

service, services under the NDIS or supports under the

Commonwealth Disability Support for Older Australians

program or a prescribed program for which the Authorised

Program Officer is responsible is administered in accordance

with Part 7. This ensures the proper administration of any

restrictive practices.

New section 135 provides that a disability service provider or

registered NDIS provider must not use a regulated restrictive

practice on a person in respect of whom Part 7 applies except for

19

in specified circumstances or where provided for in section 137

or 145.

New section 136 provides the circumstances in which an

Authorised Program Officer may authorise the use of a regulated

restrictive practice. An authorisation may be subject to any

conditions an Authorised Program Officer considers appropriate,

other than conditions requiring the variation of a behaviour

support plan or NDIS behaviour support plan. An authorisation

will be in force until it is revoked, the person's behaviour support

plan or NDIS behaviour support plan expires, or the person is

given a new plan.

New section 137 provides for the use of a regulated restrictive

practice by a disability service provider on an NDIS participant

or a DSOA client who has an NDIS behaviour support plan if the

specified criteria are satisfied, including authorisation by an

Authorised Program Officer and the Senior Practitioner's

approval (if required). This is to provide clarity to disability

service providers regarding what requirements need to be met if a

person already has an NDIS behaviour support plan. Disability

service providers who use regulated restrictive practices on a

person under new section 137 must give a report to the Senior

Practitioner, which must include all instances in which the

regulated restrictive practices were used and other details as

required by the Senior Practitioner.

New section 138 requires that, where a disability service provider

providing a disability service to a person in respect of whom

Part 7 applies is satisfied that the criteria specified in new section

136(1)(a) and (b) apply, proposes to use a regulated restrictive

practice on the person and the person receiving the disability

service does not have an NDIS behaviour support plan that is in

accordance with the NDIS (Restrictive Practices and Behaviour

Support) Rules, that the disability service provider must ensure a

behaviour support plan is prepared for the person. The plan must

be prepared in consultation with the specified persons and must

include the specified matters including how the regulated

restrictive practice will be used, how it will benefit the person,

and strategies for the reduction and elimination of the need to use

the practice on the person.

New section 139 provides for the mandatory review at the

specified intervals of behaviour support plans prepared under

new section 138 by disability service providers. A person subject

20

to the plan may also request a review. As part of the review, the

disability service provider must engage in consultation with

specified persons (including the person subject to the behaviour

support plan, their guardian, and other providers), and must

consider the specified matters including strategies to reduce and

eliminate the need for the use of the regulated restrictive practice

on the person.

New section 140 requires an Authorised Program Officer to

arrange for an independent person to explain to the person the

proposed use of a regulated restrictive practice on the person, and

the person's review rights. New section 140 also requires the

Authorised Program Officer to ensure an independent person

explains changes to a behaviour support plan or NDIS behaviour

support plan unless the matters in subsection (3) apply.

Subsections (4) and (6) require the independent person to notify

the Senior Practitioner of the specified matters, and under

subsection (5), the independent person may notify the Public

Advocate of those matters. Subsection (7) enables the

independent person to consult with the Senior Practitioner if the

independent person is concerned with compliance issues in the

development or authorisation of a behaviour support plan or

NDIS behaviour support plan. Subsections (8) and (9) ensure the

independence of the independent person by specifying who an

independent person may not be, and requiring the Authorised

Program Officer to arrange for a different independent person if

the person subject to the restrictive practices considers that the

person assisting them is not independent.

New section 141 provides that the Public Advocate may, after

considering a notification received under section 140(5), refer the

matter to the Senior Practitioner, initiate an application to VCAT

to review the specified decisions, or disclose information about

the use or proposed use of a regulated restrictive practice to the

Secretary or to the NDIA or the NDIS Quality and Safeguards

Commission, as applicable. Subsection (2) clarifies that these

powers are in addition to the Public Advocate's powers under the

Guardianship and Administration Act 2019.

New section 142 outlines requirements regarding the provision of

information in relation to the use of regulated restrictive

practices. This includes a requirement that the Authorised

Program Officer provide the Senior Practitioner a copy of the

person's behaviour support plan or NDIS behaviour support plan,

21

the name and details of the independent person who assisted the

person, and, if applicable, any information provided to the NDIS

Quality and Safeguards Commission in relation to the use of a

regulated restrictive practice that is not included in the person's

NDIS behaviour support plan. It also requires a disability service

provider or registered NDIS provider to give and explain a notice

to the person on whom a regulated restrictive practice will be

used. The notice must be explained in accordance with section 7

of the Disability Act 2006 and must confirm that authorisation or

approval was obtained for the use of a regulated restrictive

practice, and outline that the person may seek review of the

authorisation or approval.

New section 143 provides for the approval of the use of the

regulated restrictive practices specified in subsection (1) by the

Senior Practitioner upon being satisfied of the matters in

subsection (2), including, among other things, that the use is

necessary, the least restrictive form possible in the circumstances,

and the use is included and is in accordance with the behaviour

support plan or NDIS behaviour support plan. Under subsection

(3), an approval is in force until it is revoked, the person's

behaviour support plan or NDIS behaviour support plan expires,

or the person is given a new behaviour support plan or NDIS

behaviour support plan. Subsection (4) enables the Senior

Practitioner to lodge evidence with the NDIS Commissioner or

the registered NDIS provider that the proposed use of a regulated

restrictive practice on an NDIS participant or a DSOA client is

authorised by the Authorised Program Officer and if required,

approved by the Senior Practitioner.

New section 144 provides for reviews by VCAT. Subsection (1)

enables a person to whom Part 7 applies to apply to VCAT for a

review of an Authorised Program Officer's decision under

section 136 to authorise the use of a regulated restrictive practice

on the person, or if the use also requires approval of the Senior

Practitioner, a review of the Authorised Program Officer's

decision under section 136 and the Senior Practitioner's decision

to approve that use under section 143. Subsection (2) enables a

disability service provider or registered NDIS provider to apply

to VCAT for a review of a decision by the Senior Practitioner not

to approve the use of a regulated restrictive practice under

section 143. Subsection (3) provides the timing within which an

application for review must be made. Subsections (4), (5), (6)

22

and (7) provide for VCAT's powers upon an application under

subsection (1) or (2).

New section 145 sets out the criteria which must be satisfied for a

registered NDIS provider or disability service provider to use

regulated restrictive practices on persons to whom Part 7 applies

who do not have a behaviour support plan or an NDIS behaviour

support plan which provides for the proposed use of restrictive

practices, or who have a plan in which the use of restrictive

practices has not been authorised by the Authorised Program

Officer or approved by the Senior Practitioner, as required. If the

provider intends to continue to use a regulated restrictive

practice, the provider must appoint an Authorised Program

Officer under Part 6A if the provider has not already done so,

subject to obtaining the necessary authorisation from the

Authorised Program Officer and approval from the Senior

Practitioner (if required).

New section 146 provides that the Senior Practitioner may give a

written direction to the providers specified in subsection (2) in

relation to the specified matters including the approval,

regulation or prohibition of the use of restrictive practices.

Subsection (3) enables the Senior Practitioner to require a

registered NDIS provider to provide a report to the Senior

Practitioner on the use of restrictive practices by the registered

NDIS provider.

New section 147 requires that the Authorised Program Officer for

a disability service provider must, on a monthly basis, give a

report to the Senior Practitioner regarding the emergency use of

regulated restrictive practice by disability service providers under

section 145. The report must include the matters specified in

subsection (2).

New section 148 requires the Senior Practitioner to monitor

whether the use of a regulated restrictive practice by a disability

service provider is in accordance with Part 7 and advise the

Authorised Program Officer as to the intervals, not exceeding

12 months, in which a report is required regarding the

implementation of a person's behaviour support plan or NDIS

behaviour support plan. The report must meet the requirements

specified in subsection (2) and under subsection (3), the Senior

Practitioner may make and issue guidelines in relation to

preparation of the reports, including the provision of a

consolidated report by multiple providers.

23

New section 149 provides for certain offences. Under subsection

(1), it is an offence for a disability service provider or a registered

NDIS provider to use regulated restrictive practices unless it is in

accordance with the specified sections. Under subsection (2),

except in accordance with section 145 (regarding the use of

regulated restrictive practices in the case of emergencies), it is an

offence for a disability service provider or a registered NDIS

provider to use restrictive practices if the Senior Practitioner has

not approved the appointment of the provider's Authorised

Program Officer. Failure to comply with either of these offences

is punishable by a maximum penalty of 240 penalty units.

Clause 48 inserts new subsections (2) and (3) into section 150A of the

Disability Act 2006 regarding the restriction on liberty or

freedom of movement.

New subsection (2) provides that a registered NDIS provider

must not detain a person with an intellectual disability otherwise

than in accordance with Part 8.

Subsection (3) provides that a disability service provider or a

registered NDIS provider must not use compulsory treatment on

a person if the Senior Practitioner has not approved the

appointment of the provider's Authorised Program Officer.

Failure to comply with either section 150A(2) or (3) is an offence

punishable by a maximum penalty of 240 penalty units.

Clause 49 amends section 153 of the Disability Act 2006 to adopt gender

inclusive language.

Clause 50 amends section 159(1) of the Disability Act 2006 so that the

requirement for a resident detained in a residential treatment

facility, or absent from one on leave, to be subject to security

conditions considered necessary by the Authorised Program

Officer is subject to new section 159A being inserted by this Bill,

which provides when security conditions must be approved by

the Secretary.

Clause 51 inserts a new section 159A into the Disability Act 2006 to

require that the Secretary approve a security condition that is a

restrictive practice and which will apply to all residents detained

in a residential treatment facility. The Secretary may approve

such a security condition if it is for the purpose of the supervision

of residents or security of the residential treatment facility. The

24

Secretary must consult the Senior Practitioner before making a

decision.

Clause 52 amends section 163(3) of the Disability Act 2006 to adopt

gender inclusive language.

Clause 53 amends section 165(3) of the Disability Act 2006 to adopt

gender inclusive language.

Clause 54 amends section 167(2) and (2A) of the Disability Act 2006 to

adopt gender inclusive language.

Clause 55 amends the note at the foot of section 184(2) of the Disability

Act 2006 to substitute "section 201B(2)" with the words

"Division 6". This is because section 201B(2) is being repealed

and the new Division 6 will regulate the use of restrictive

practices on persons subject to supervised treatment orders.

Clause 56 substitutes sections 185 to 191 of the Disability Act 2006 and

inserts new sections 191A, 191B and 191C. This is because the

Secretary will no longer be approving the ability for disability

services to use restrictive practices or their Authorised Program

Officers, so these sections 185 to 190 are no longer required.

New section 185 inserts a new requirement that if a person is

subject to a supervised treatment order, only a disability service

provider or a registered NDIS provider may provide disability

services or services under the NDIS (as the case requires) to that

person.

New section 186 provides that an Authorised Program Officer for

a primary service provider must ensure that any supervised

treatment used in the provision of a disability service or services

under the NDIS by the primary service provider is administered

in accordance with Division 5 of Part 8 of the Disability

Act 2006.

New section 187 provides a new power for the Senior

Practitioner to approve accommodation at which supervised

treatment may be provided on application by a disability service

provider or registered NDIS provider. The Senior Practitioner

must not approve accommodation unless satisfied that the

accommodation is provided by, on behalf of, or by arrangement

with, the applicant, that the Authorised Program Officer for the

applicant has obtained, applied for or intends to apply for a

supervised treatment order in respect of the person, that the

25

applicant will provide the supervised treatment to the person, and

that the accommodation is suitable for persons to reside in for the

purposes of receiving supervised treatment. The Senior

Practitioner may at any time in writing impose, vary or revoke a

condition on the approval of accommodation, or revoke the

approval of accommodation. The Residential Tenancies

Act 1997 does not apply in respect of accommodation approved

under this section.

Section 188 provides that the Senior Practitioner must notify the

Public Advocate of their approval of accommodation under

section 187 within 7 days of that approval (providing the expiry

date of that approval if applicable). Similarly, the Senior

Practitioner must notify the Public Advocate of any revocation of

approval under section 187 within 7 days of making the

revocation.

Section 189 provides requirements for treatment plans required

under section 191. The treatment plan must include provisions to

specify the treatment that will be provided; the expected benefit

to the person; any restrictive practices to be used; details of each

provider that will be providing services to the person and the

nature of those services; the level of supervision which will be

required to ensure the person participates in the treatment; and a

proposed process for the transition of the person to lower levels

of supervision and, if appropriate, to living in the community

without a supervised treatment order being required. A treatment

plan prepared under this section for an NDIS participant must be

prepared in accordance with the requirements of Part 8 and the

NDIS (Restrictive Practices and Behaviour Support) Rules and is

taken to be the NDIS participant's NDIS behaviour support plan.

Section 190 provides that, if a treatment plan has been prepared

under section 189 and approved by the Senior Practitioner, the

Authorised Program Officer for a primary service provider must,

before applying for a supervised treatment order under section

191(1), ensure that the treatment plan is explained in accordance

with section 7 and given to that person and the person's guardian

(if any).

Section 191 provides for applications to be made to VCAT by an

Authorised Program Officer for a supervised treatment order.

26

Subsection (1) provides that the Authorised Program Officer for a

primary service provider may apply to VCAT for a supervised

treatment order if: the person has an intellectual disability; the

person is residing in an accommodation type specified in

subsection (1)(b); the Senior Practitioner has approved a

treatment plan prepared by or on behalf of the applicant under

section 189; and the Authorised Program Officer considers that

the person meets the criteria in section 193(1A).

Subsection (2) provides that the Senior Practitioner may direct

the Authorised Program Officer for a primary service provider to

make an application under subsection (1) if the Senior

Practitioner considers that the person has an intellectual

disability, is residing in accommodation of the type specified in

subsection (1)(b) and is being detained to prevent a significant

risk of serious harm to another person without a supervised

treatment order applying.

Section 191A provides for certain information to be included in

an application for a supervised treatment order under

section 191(1).

Subsection (1) requires an application to include a certificate

given by the Senior Practitioner which specifies that the person

subject to the application has an intellectual disability; is residing

in accommodation of a type specified in section 191(1)(b); poses

a significant risk of serious harm to another person which cannot

be substantially reduced by using other less restrictive means

other than a supervised treatment order; and has a treatment plan

that has been approved by the Senior Practitioner. It also

requires an application to include the risk assessment reviewed

by the Senior Practitioner to inform the assessment of significant

risk of serious harm to others.

Subsection (2) provides that if an application is made in respect

of a person who is residing in accommodation approved by the

Senior Practitioner under section 187, the application must

include a copy of the written approval.

Subsection (3) provides that an application may include

information informing the treatment plan or any risk assessment

prepared for the person in respect of whom the application is

being made.

27

Subsection (4) provides that VCAT, in a proceeding relating to

an application under section 191(1), may order the applicant or

the Senior Practitioner to produce information described in

subsection (3) or arrange additional assessments of the person in

respect of whom the application for a supervised treatment order

is made (except as to whether or not the person has an intellectual

disability) and produce a report of that additional assessment.

Section 191B requires the Senior Practitioner to give written

notice to the NDIS Commissioner that a certificate referred to in

section 191A(1)(a) has been given by the Senior Practitioner in

relation to an NDIS participant.

Section 191C provides requirements regarding notifications and

parties to applications for a supervised treatment order under

section 191(1). Subsection (1) requires an applicant to give

notice of an application under section 191(1) to the person in

respect of whom the supervised treatment order is proposed to be

made, the Senior Practitioner, and the Public Advocate.

Subsection (2) provides that the person in respect of whom the

supervised treatment order is proposed to be made is a party to a

proceeding. Subsections (3) and (4) provide that on the

application of the Senior Practitioner or the Public Advocate,

VCAT must join them as a party to a proceeding. Subsection (5)

provides that if the Senior Practitioner or Public Advocate is

joined as a party to a proceeding, they are a party to a proceeding

relating to any other application under section 191(1) concerning

the person in respect of whom the supervised treatment order is

proposed to be made.

Clause 57 amends the heading to section 192 of the Disability Act 2006 to

reflect that the Authorised Program Officer will be the entity

requesting interim supervised treatment orders instead of a

disability service provider or registered NDIS provider.

Clause 58 amends section 193 of the Disability Act 2006.

Subclause (1), which provides the power for VCAT to make a

supervised treatment order, amends section 193(1)(a), (b) and (c)

of the Disability Act 2006 to update section references regarding

matters that VCAT must be satisfied of on an application under

section 191, which are now specified in section 193(1A) and

191C(1)(a) to (c).

28

Subclause (2) inserts a new section 193(1A) into the Act to

provide the matters for which VCAT must be satisfied before

making a supervised treatment order. These are that the person

has previously exhibited a pattern of violent or dangerous

behaviour causing serious harm or exposing another person to a

serious risk of harm; there is a significant risk of serious harm to

another person which cannot be substantially reduced by using

less restrictive means; the services to be provided to the person in

accordance with the treatment plan will be of benefit to the

person and substantially reduce the significant risk of serious

harm to another person; the person is unable or unwilling to

consent to voluntarily complying with a treatment plan to

substantially reduce the significant risk of serious harm to

another person; and if it is necessary to detain the person to

ensure compliance with the treatment plan and prevent a

significant risk of serious harm to another person.

Subclause (3) substitutes section 193(2A) of the Disability

Act 2006 and inserts a new section 193(2B). New section

193(2A) provides that on an application under section 191(1) for

an NDIS participant whose treatment plan is to be used as the

person's NDIS behaviour support plan who will be subject to

restrictive practices by a registered NDIS provider, VCAT must

not specify that the treatment plan of an NDIS participant be

varied with respect to any regulated restrictive practices or in

such a manner that the treatment plan would not be able to be

implemented. This is required as NDIS behaviour support plans

must be prepared in accordance with the NDIS (Restrictive

Practices and Behaviour Support) Rules. New section 193(2B)

provides that in deciding whether to make a supervised treatment

order, VCAT may consider any relevant information, including

the specified information.

Subclause (4) inserts reference to the primary service provider in

section 193(3)(a) of the Disability Act 2006 so that the

supervised treatment order must specify that the Authorised

Program Officer of a primary service provider is responsible for

implementing the order. It also substitutes section 193(3)(b) of

the Disability Act 2006 to provide that a supervised treatment

order must require the person to whom the supervised treatment

order applies to reside in accommodation of the type specified in

the certificate referred to section 191A(1)(a) or of a type

specified in section 191(1)(b) and approved in writing by the

29

Senior Practitioner. Presently, section 193(3)(b) refers solely to

residents in a residential service or an SDA enrolled dwelling.

Clause 59 amends section 194 of the Disability Act 2006.

Subclause (1) inserts reference to primary service providers in

section 194(1)(a) of the Disability Act 2006 so that the Public

Advocate's power to apply for a specified order relates to whether

the Authorised Program Officer of the primary service provider

applied for a supervised treatment order.

Subclause (2) inserts new sections 194(1A), (1B) and (1C) into

the Disability Act 2006. Section 194(1A) provides that the

Public Advocate must notify the Senior Practitioner of an

application under subsection (1). Section 194(1B) provides that

both the person in respect of whom the supervised treatment

order is proposed to be made and the Authorised Program Officer

for the person's primary service provider are parties to a

proceeding relating to an application under subsection (1).

Section 194(1C) provides that on the application of the Senior

Practitioner, VCAT must join the Senior Practitioner as a party to

a proceeding relating to an application under subsection (1).

Clause 60 inserts new sections 194A, 194B and 194C into the Disability

Act 2006.

New section 194A provides the responsibilities of Authorised

Program Officers for primary service providers, including

requirements to notify, within the specified timeframes, disability

service providers or registered NDIS providers specified in the

treatment plan of the conditions and requirements of the

supervised treatment order. It also requires the Authorised

Program Officer to notify the Senior Practitioner as soon as

practicable after becoming aware that a disability service

provider or a registered NDIS provider specified in a treatment

plan is not complying with a condition of the supervised

treatment order or is allowing the person who is subject to the

supervised treatment order to contravene the order.

New section 194B provides the responsibilities of disability

service providers and registered NDIS providers specified in a

treatment plan who are not the primary service provider. Those

disability service providers and registered NDIS providers must

take reasonable steps to ensure that they do not cause the person

who is subject to the supervised treatment order to contravene

30

that order, and notify the Senior Practitioner and the primary

service provider as soon as practicable after becoming aware that

the person who is subject to the supervised treatment order has

contravened a condition of the order. The notification may be

given verbally.

New section 194C provides that an Authorised Program Officer

for a disability service provider or a registered NDIS provider

specified in a treatment plan under a supervised treatment order

(other than the primary service provider) must ensure that the

provider implements any part of the treatment plan that concerns

the provision of services by that provider.

Clause 61 amends section 195 of the Disability Act 2006.

Subclause (1) inserts reference to a primary service provider in

section 195(2) of the Disability Act 2006 to specify that it is the

Authorised Primary Officer for a primary service provider that is

required to provide a report on the implementation of a

supervised treatment order to the Senior Practitioner.

Subclause (2) inserts new sections 195(2A) and (2B) into the Act

to require the provision of a report to the Senior Practitioner on

the implementation of the treatment plan. Subsection (2A)

requires the Authorised Program Officers for a disability service

provider or a registered NDIS provider specified in a treatment

plan who is not the primary service provider to provide a report if

requested to do so by the Senior Practitioner. The report must be

provided at the intervals requested. Subsection (2B) requires an

Authorised Program Officer for a disability service provider or a

registered NDIS provider specified in a treatment plan to provide

a report at the intervals, not exceeding 6 months, specified by the

Senior Practitioner.

Subclauses (3) and (4), regarding material changes to treatment

plans, amend the application of section 195(4) and (5) of the

Disability Act 2006 by specifying they are subject to subsections

(5A) and (5B).

Subclause (5) substitutes section 195(5A) of the Disability

Act 2006 to provide that in the case of an NDIS participant who

will be subject to the use of restrictive practices by a registered

NDIS provider under a treatment plan, if a material change to a

treatment plan relates to an increase in the level of supervision or

restriction, the Senior Practitioner must not approve the change.

Instead, the Authorised Program Officer must apply to VCAT for

31

a variation of the treatment plan (if the proposed variation is to

the treatment plan and does not relate to a regulated restrictive

practice) or a review of the supervised treatment order

(if, following a review of the NDIS participant's treatment plan, a

material change is made to that plan relating to the use of a

regulated restrictive practice).

Subclause (6) amends section 195(5B) of the Disability Act 2006

so that despite subsection (5) and subsection (5A), the process in

section 195(5B) for approval of material changes in an

emergency applies to an NDIS participant who will be subject to

the use of restrictive practices by a registered NDIS provider

under a treatment plan attached to a supervised treatment order

(which is the person's NDIS behaviour support plan). Currently,

this process applies despite subsection (5A) for a person subject

to a supervised treatment order, with a treatment plan that has an

NDIS behaviour support plan attached to it, obtained by an

Authorised Program Officer of a registered NDIS provider.

Subclause (7) inserts a new section 195(5C) into the Act to

provide that a change to the disability service providers and

registered NDIS providers (other than the primary service

provider) specified in a treatment plan may be made with the

approval of the Senior Practitioner.

Subclause (8) inserts a new section 195(7) into the Act to provide

that any disability service provider or registered NDIS provider

providing disability services or services under the NDIS to the

person who is subject to the treatment plan may make a request

to the Senior Practitioner to make a material change to that

treatment plan.

Clause 62 amends section 196 of the Disability Act 2006 in relation to

applications for review, variation or revocation of supervised

treatment orders or treatment plans.

Subclause (1) amends section 196(1) of the Disability Act 2006

to provide that an application is to be made by the Authorised

Program Officer of the primary service provider. It also limits

the ability to apply for a variation if new section 196(2) applies.

Subclause (2) substitutes section 196(2) of the Disability

Act 2006 to provide that an application to vary a supervised

treatment order or treatment plan may not be made if the person

who is subject to the supervised treatment order is an NDIS

participant, the treatment plan is also to be used as the NDIS

32

participant's behaviour support plan, a registered NDIS provider

will administer the restrictive practices, and the proposed

variation includes any regulated restrictive practices or would

result in the treatment plan being unable to be implemented.

Presently, section 196(2) provides notification requirements

which are now captured in new section 196(4A).

Subclause (3) inserts new section 196(4A), (4B), (4C), (4D), (4E)

and (4F) into the Act.

Section 196(4A) requires that the applicant under section 196(1)

notify the Senior Practitioner and the Public Advocate of their

application.

Section 196(4B) confirms the parties to a proceeding for an

application under section 196(1) are the person who is the subject

to the supervised treatment order and the Authorised Program

Officer for the person's primary service provider.

Section 196(4C) and (4D) provide that if the Senior Practitioner

and/or Public Advocate were parties to a proceeding under

section 191 or 194, they are parties to a proceeding relating to an

application under section 196(1).

Section 196(4E) and (4F) require VCAT to join the Senior

Practitioner and/or the Public Advocate as a party to the

proceeding under section 196(1) on their application.

Subclause (4) amends section 196(5) of the Disability Act 2006

so that VCAT must be satisfied with the matters in sections

191(1)(a) to (c) and 193(1A) before making the specified orders.

This reflects new numbering. Further, subclause (4) substitutes

section 196(5)(a)(ii) of the Disability Act 2006 so that VCAT

may confirm the supervised treatment order or treatment plan

subject to any variation VCAT considers appropriate, unless the

order is for an NDIS participant who will be subject to the use of

restrictive practice by a registered NDIS provider, the person's

treatment plan is also their NDIS behaviour support plan, and the

proposed variation relates to: any regulated restrictive practices

or would result in the NDIS participant's treatment plan being

unable to be implemented.

Subclause (5) substitutes section 196(7)(b) of the Disability

Act 2006 with a new section 196(7)(b) and (c) to provide that

VCAT must not confirm a variation or a supervised treatment

order or treatment plan unless satisfied that—

33

• if the supervised treatment order is for an NDIS

participant who will be subject to the use of restrictive

practices by a registered NDIS provider and the

treatment plan is also to be used as the NDIS

participant's NDIS behaviour support plan, the proposed

variation does not relate to any regulated restrictive

practices; and would not result in the NDIS participant's

treatment plan being unable to be implemented; and

• if the proposed variation is to change the primary

service provider stated in the supervised treatment

order, the proposed new primary service provider

satisfies the requirements in section 3C(1) or (2) of the

Disability Act 2006.

Subclause (6) amends section 196(8)(a) and (b) of the Disability

Act 2006 to substitute the reference to sections 191(1) or (1A) to

reflect that the matters which VCAT is to be satisfied of on an

application for revocation of a supervised treatment order are

now provided in sections 191(1)(a) to (c) and 193(1A).

Subclause (7) amends section 196(9)(a) of the Disability

Act 2006 to provide that VCAT must not confirm a supervised

treatment order, or confirm it subject to variations, on an

application to revoke the order unless satisfied that the relevant

provider can implement the order or variation. It also substitutes

section 196(9)(b) so that VCAT must not confirm a supervised

treatment order, or confirm an order with a variation under

section 196(8)(b) if the supervised treatment order is for an NDIS

participant who will be subject to the use of restrictive practices

by a registered NDIS provider and the treatment plan is also the

person's NDIS behaviour support plan, unless satisfied that the

proposed variation does not relate to any regulated restrictive

practices, does not relate to the NDIS participant's treatment plan

being unable to be implemented.

Clause 63 substitutes section 196A of the Disability Act 2006 to replace the

current process to apply to VCAT for a determination regarding

the expiry of a supervised treatment order. New section 196A

will require the Authorised Program Officer for the primary

service provider to notify the person who is subject to the

supervised treatment order, the Public Advocate, the Senior

Practitioner and any disability service provider or registered

NDIS provider specified in the treatment plan under the

34

supervised treatment order of specified matters no less than

60 days before the expiry of a supervised treatment order.

The specified matters include the expiry date of the supervised

treatment order, whether the Authorised Program Officer intends

to apply under section 191(1) of the Disability Act 2006 for

another supervised treatment order in respect of the person, and,

if the Authorised Program Officer is not eligible to apply for

another supervised treatment order, for the purposes of an

application under section 191(1), whether the Authorised

Program Officer considers that a supervised treatment order is

necessary.

The Senior Practitioner may make a direction to, and the Public

Advocate may apply to VCAT for an order, directing the

Authorised Program Officer of a primary service provider to

make an application under section 191(1) if they consider that a

supervised treatment order continues to be required to prevent a

significant risk of serious harm to another person. Sections

196A(5) to (8) of the Disability Act 2006 provide for procedures

in relation to an application to VCAT by the Public Advocate,

including providing for the parties to the proceeding and the

power for VCAT to make orders directing that the Authorised

Program Officer make an application under section 191(1).

Clause 64 amends section 197 of the Disability Act 2006 regarding

applications to VCAT for a rehearing of an application under this

Division.

Subclause (1) inserts a reference to the primary service provider

in section 197(1) of the Disability Act 2006 to specify that it is

the Authorised Program Officer for a primary service provider

that can make an application to VCAT.

Subclause (2) inserts new sections 197(6), (7), (8) and (9) into the

Act to specify the parties to a proceeding under section 197(1).

New section 197(6) requires an applicant under section 197(1) to

notify the Senior Practitioner and the Public Advocate of an

application.

New section 197(7) provides that the parties to a proceeding

relating to an application under section 197(1) include the person

who is subject to the supervised treatment order, the Authorised

Program Officer for the person's primary service provider, and

the Senior Practitioner and the Public Advocate if they were

35

parties to the proceeding for which the application for a rehearing

relates.

New sections 197(8) and (9) require VCAT to join the Senior

Practitioner or the Public Advocate as a party to a proceeding

relating to an application under section 197(1) on their

application.

Clause 65 amends section 199 of the Disability Act 2006 regarding the

Senior Practitioner's ability to make an assessment order.

Subclause (1) inserts reference to a primary service provider in

section 199(1) of the Disability Act 2006 to specify that it is the

Authorised Program Officer for a primary service provider that

may apply to the Senior Practitioner for an assessment order.

Subclause (2) substitutes section 199(2)(b) of the Disability

Act 2006 to provide that the Authorised Program Officer may

make an application to the Senior Practitioner for an assessment

order if they consider that the person is residing in

accommodation of a type specified in section 191(1)(b).

Presently, section 199(2)(b) requires the Authorised Program

Officer to consider that the person is receiving residential

services or is an SDA resident living in an SDA enrolled

dwelling provided under an SDA residency agreement.

Clause 66 amends section 201 of the Disability Act 2006 regarding the

apprehension of a person subject to a supervised treatment order

absent without approval.

Subclause (1) substitutes a new section 201(1) to provide a

revised list of the persons who may apprehend a person who is

subject to a supervised treatment order who is absent without

approval from the accommodation that the person is required to

reside in under the order at any time for the purpose of returning

them to that accommodation. Those persons are—

• a police officer; or

• the person in charge of the disability service provider

providing disability services at the accommodation; or

• the person in charge of the registered NDIS provider

providing daily independent living supports at the

accommodation; or

36

• a person who is employed or engaged by, or who is

providing disability services or services under the NDIS

at the accommodation for or on behalf of, the disability

service provider or registered NDIS provider referred to

above and who is authorised by the person in charge of

the disability service provider or registered NDIS

provider to apprehend persons subject to supervised

treatment orders in the course of their duties.

Subclause (2)(a) amends section 201(2) of the Disability

Act 2006 to provide that the power to apprehend a person applies

if they are absent from the accommodation at which the person is

required to reside. Presently, section 201(2) only refers to

residential services or SDA enrolled dwellings.

Subclause (2)(b) inserts reference to the primary service provider

in section 201(2)(c) of the Disability Act 2006 to specify that it

is the Authorised Program Officer for a primary service provider

who must have been required to give the prior approval for an

absence where approval is required.

Clause 67 amends the heading to Division 6 of Part 8 of the Disability

Act 2006 to remove reference to disability service providers and

instead provide that the Division relates to the general use of

restrictive practices in implementing treatment plans.

Clause 68 amends section 201A of the Disability Act 2006.

Subclause (1) substitutes section 201A(1) of the Disability

Act 2006 to provide that Division 6 of Part 8 applies in respect of

persons for whom a disability service provider, or the Authorised

Program Officer for a disability service provider or a registered

NDIS provider has prepared or is required to prepare a treatment

plan.

Subclause (2) provides for a grammatical change in section

201A(2) of the Disability Act 2006, substituting "to whom" with

the words "in respect of whom".

Subclause (3) substitutes the note at the foot of section 201A(2)

of the Disability Act 2006 to reflect that corresponding

protective provisions in relation to other persons with a disability

and other NDIS participants are contained in Part 7.

37

Subclause (4) substitutes section 201A(3) of the Disability

Act 2006 and inserts new section 201A(3A) and (3B). New

subsection (3) provides that each disability service provider and

registered NDIS provider using restrictive practices on a person

in respect of whom this Part applies must comply with Division 6

of Part 8. However, new subsection (3A) provides that a

registered NDIS provider is authorised to use regulated restrictive

practices on, and is not required to comply with Division 6 of

Part 8 in relation to, an NDIS participant who is subject to a

treatment plan that is prepared by or on behalf of the Authorised

Program Officer for a disability service provider that is not in

accordance with the requirements of the NDIS (Restrictive

Practices and Behaviour Support) Rules if one of the conditions

in subsection (3B) are met. New subsection (3B) provides the

conditions: if the use of the regulated restrictive practice is in

accordance with section 135 and is authorised under sections 136

or the use if authorised under section 145.

Subclause (5) substitutes section 201A(4) of the Disability

Act 2006 and inserts new section 201A(5).

New section 201A(4) provides that if a provider is both a

disability service provider or a registered NDIS provider for a

person, the provider is required to comply with Division 6 of

Part 8 in relation to a person either in their capacity as a disability

service provider or a registered NDIS provider, but not both, or if

the provider uses restrictive practices when providing NDIS

services to the person, then the provider acts in their capacity as a

registered NDIS provider.

New section 201A(5) provides that a disability service provider is

not required to comply with sections 201B to 201E of the

Disability Act 2006 in applying a security condition if the

Secretary has approved the security condition under

section 159A.

Clause 69 amends section 201B of the Disability Act 2006, regarding the

use of restrictive practices. Subclause (1) inserts a reference to

registered NDIS providers to reflect that Division 6 of Part 8 now

applies to them in addition to disability service providers. It also

inserts a new section 201B(1)(c) which provides that providers

must not use a regulated restrictive practice unless new

sections 201D and 201E of the Disability Act 2006 are complied

with.

38

Subclause (2) repeals sections 201B(2), (3) and (4) of the

Disability Act 2006, relating to use of restrictive practices on

NDIS participants by disability service providers.

Clause 70 substitutes section 201C of the Disability Act 2006.

New subsection (1) provides that an Authorised Program Officer

for a disability service provider must ensure that any restrictive

practices used on a person in respect of whom this Division

applies by the disability service provider that appointed the

officer are administered in accordance with Division 6 of Part 8

and a person's treatment plan. Presently, section 201C only

requires administration in accordance with the Division.

New subsection (2) requires an Authorised Program Officer for a

registered NDIS provider to ensure that any restrictive practice

used on an NDIS participant is used in accordance with

Division 6 of Part 8, the NDIS Act, any regulations, instruments

or rules made under the NDIS Act, and the NDIS participant's

treatment plan.

New section 201C no longer provides that a disability service

provider must advise the Senior Practitioner of the name and

qualifications of any person appointed as an Authorised Program

Officer, and that the Senior Practitioner must keep a register of

the same for each Authorised Program Officer; these are now

addressed by section 132ZJ.

Clause 71 amends section 201D of the Disability Act 2006 to provide for

the use of regulated restrictive practices.

Subclause (1)(a) inserts reference to registered NDIS providers

so that the requirements for use of regulated restrictive practices

now also apply to registered NDIS providers to reflect that

Division 6 of Part 8 now also applies to them in addition to

disability service providers.

Subclause (1)(b) repeals section 201D(a)(ii) of the Disability

Act 2006, so that regulated restrictive practices can no longer be

used to prevent the person from destroying property where to do

so could involve the risk of harm to themselves or any other

person.

Subclause (1)(c) substitutes section 201D(c)(iii) of the Disability

Act 2006 to ensure the regulated restrictive practice is not

applied longer than necessary under section 201D(a).

39

Subclause (1)(d) inserts a new section 201D(ca) into the Act to

ensure the treatment plan is prepared in accordance with

section 201E and, if the person is an NDIS participant and the

treatment plan is also to be used as the person's NDIS behaviour

support plan, the requirements of the NDIS (Restrictive Practices

and Behaviour Support) Rules.

Subsection (2) substitutes the note at the foot of section 201D of

the Disability Act 2006 to refer to section 135 rather than 140 as

the corresponding provision in relation to other persons with a

disability and other NDIS participants. This is to reflect the

amendments made by this Bill.

Clause 72 amends section 201F of the Disability Act 2006.

Subclause (1) amends section 201F(1) of the Disability Act 2006

to provide that the Senior Practitioner must monitor the use of

regulated restrictive practices by disability service providers, and

advise Authorised Program Officers for a disability service

provider as to the intervals the Authorised Program Officer must

provide the report under this section.

Subclause (2) repeals section 201F(3) of the Disability Act 2006,

which relates to the making and issuing of guidelines, because

this is now addressed by section 201H. Consequently, the

changes in subclause (1) also remove reference to

section 201F(3).

Clause 73 repeals section 201FA of the Disability Act 2006, as this relates

to the Senior Practitioner's power to issue guidelines and

directions, which is now addressed by section 201H.

Clause 74 substitutes section 201G of the Disability Act 2006 to make it an

offence for a disability service provider or a registered NDIS

provider to use a regulated restrictive practice on a person in

respect of whom Division 6 of Part 8 applies, except in

accordance with sections 201A(3A), (4) or (5) or 201B of the

Disability Act 2006. Failure to comply is punishable by a

maximum penalty of 240 penalty units.

Clause 75 substitutes section 201H of the Disability Act 2006. Presently,

section 201H addresses the use of restrictive practices that are not

regulated restrictive practices, including the provision of reports

to the Senior Practitioner, the development of guidelines, and

giving written directions prohibiting or regulating their use. This

40

section is no longer required, as these provisions are addressed

elsewhere throughout the Act.

The new section 201H provides a list of the matters in relation to

which the Senior Practitioner may issue guidelines and standards

and give written directions to disability service providers and

registered NDIS providers specified in subsection (3). This

includes making guidelines and standards, or issuing directions

about, the use of restrictive practices, the development of

treatment plans, reporting requirements on the implementation of

plans and use of restrictive practices, and any prescribed matter.

Clause 76 substitutes section 201I of the Disability Act 2006. Currently,

section 201I provides the ability for the Senior Practitioner to

issue directions, which is now addressed by section 201H. The

new section 201I provides that the Senior Practitioner may lodge

evidence with the NDIS Commissioner or the registered NDIS

provider that the use of regulated restrictive practices is

authorised under Division 6 of Part 8.

Clause 77 repeals Division 7 of Part 8 of the Disability Act 2006. This is

because Division 7 relates to the use of restrictive practices by

registered NDIS providers on NDIS participants, which is now

addressed in Division 6 of Part 8 alongside disability service

providers.

Clause 78 amends section 204(2) of the Disability Act 2006 so that the

Secretary may also delegate powers, duties or functions that

relate to or affect DSOA clients, in addition to NDIS participants

and persons with a disability.

Clause 79 inserts reference to a contracted service provider and a funded

service provider in section 205(1) of the Disability Act 2006, to

ensure that the Secretary's powers regarding the provision of staff

extend only to disability services which are provided, contracted

or funded by the Secretary.

Clause 80 amends section 209 of the Disability Act 2006 to adopt gender

inclusive language.

Clause 81 amends section 213 of the Disability Act 2006 to adopt gender

inclusive language.

Clause 82 amends section 217(3)(a) and (b) of the Disability Act 2006 to

adopt gender inclusive language.

41

Clause 83 inserts a new section 218(3) into the Disability Act 2006 to

provide that the Senior Practitioner may also bring proceedings

for an offence under Part 6A, 7 or 8.

Clause 84 inserts a new Division 6 into Part 10 of the Disability Act 2006,

to provide for transitional provisions following commencement

of the Disability Amendment Act 2022.

New section 246 defines commencement day in this Division as

meaning the day on which Division 1 of Part 2 of the Disability

Amendment Act 2022 comes into operation.

New section 247 provides that if an Authorised Officer's

appointment is approved by the Secretary before Division 1 of

Part 2 comes into operation, on and from that day the Senior

Practitioner is taken to have approved the appointment under

section 132ZJ.

New section 248 provides that if immediately before the

commencement day, a decision under section 50 as to whether a

person has a disability is in effect, on and from the

commencement day that decision is taken to have been made in

accordance with section 50 as substituted by the Disability

Amendment Act 2022.

New section 249 provides that the Senior Practitioner may

approve accommodation under section 187 as substituted by the

Disability Amendment Act 2022 for a person in respect of

whom a supervised treatment order, or an application for a

supervised treatment order, was made before the commencement

day.

New section 250 provides for matters with respect to applications

before VCAT immediately before the commencement day.

Subsection (1) provides that on and from the commencement

day, an application for a supervised treatment order is taken to be

made in accordance with section 191 as substituted. Except as

provided for in subsections (3) and (5), the Disability Act 2006

as amended applies to the determination of an application under

sections 191, 194 and 196, and where the application is under

section 197 for a re-hearing of an application under section

191(1) or 196(1), The Disability Act 2006 as in force

immediately before amendment continues to apply in respect of

an application under the old section 196A, and a request for a

decision under section 50(1) or application for review under

42

section 50(7) which are not determined immediately before the

commencement day.

New section 251 provides for matters with respect to supervised

treatment orders and interim orders in force immediately before

the commencement day. For those orders, they will continue

until the order expires or is revoked, the Disability Act 2006 as

amended applies, and disability service provider or registered

NDIS provider that appointed the Authorised Program Officer

stated in the supervised treatment order is taken to be the primary

service provider.

New section 252 provides for matters with respect to treatment

plans, and treatment plans with an attached NDIS behaviour

support plan, in force immediately before the commencement day

for persons subject to a supervised treatment order or an

application for such an order. Those treatment plans, or

treatment plan and attached NDIS behaviour support plan, are

taken to be a treatment plan made under section 189 as

substituted.

New section 253 provides for the transition of guidelines,

directions and standards issued before the commencement day.

Any directions issued under section 135(6) or 186(6) are taken to

be directions issued under the amended section 132ZO. Any

guidelines or directions issued under section 132ZY, 147A or

150 are taken to be issued under the substituted section 146. Any

guidelines, directions or standards issued under section 201FA,

201H or 201I are taken to be issued under the substituted

section 201H.

New section 254 provides that if an offence against this Act is

alleged to have been committed between 2 dates, one before and

one after the commencement day, the offence is alleged to have

been committed before the commencement day.

New section 255 provides that an authorisation or approval for

the use of a regulated restrictive practice under sections

132ZR(1) or 145, 132ZV or 145A that are in force immediately

before the commencement day, they are taken to be approved or

authorised under substituted sections 136 or 143, as applicable.

Subsection (4) provides that a person who has a right to apply to

VCAT for a review of a decision under sections 132ZW or 146

immediately before the commencement day can apply for the

review under substituted section 144. Subsection (5) preserves

43

applications before VCAT immediately before the

commencement day.

New section 256 provides for the preservation of behaviour

support plans in place under section 141 immediately before the

commencement day. They will be taken to be a behaviour

support plan under section 138 as substituted.

New section 257 provides for the transition of reports made by

the independent person to the Public Advocate under current

section 132ZS(4) or 143(2). If a report is made more than

28 days before the commencement day, the Disability Act 2006

as in force immediately before the commencement day will

continue to apply in respect of the report (including current

section 132ZT and 144). Otherwise, if made within 28 days

before the commencement day, the Disability Act 2006 as

amended will apply in respect of the report (including new

section 141).

New section 258 provides that if a security condition that is a

restrictive practice was imposed on the residents of a residential

treatment facility under section 159 immediately before the

commencement day, despite section 159A, the Secretary's

approval of the security condition is not required until 30 days

after the commencement day.

New section 259 provides that for residential statements in effect

immediately before the commencement day, on and from the

commencement day, the Disability Act 2006 as in force

immediately before the commencement day will continue to

apply until the earlier of the end of the statement or 12 months

after the commencement day.

New section 260 provides that the Governor in Council may

make regulations containing provisions of a transitional nature,

including matters of an application or savings nature arising as a

result of the enactment of the Disability Amendment Act 2022.

This section is repealed on the second anniversary of the day on

which it comes into operation.

Division 2—Further amendments to the Disability Act 2006

Subdivision 1—Residential tenancies

Clause 85 amends section 3 of the Disability Act 2006.

44

Subclause (1)(a) inserts a new definition of SDA dwelling, which

has the same meaning as in section 498BA of the Residential

Tenancies Act 1997.

Subclause (1)(b) and (1)(d) substitute the definitions of SDA

provider and SDA resident to adopt the definitions of those terms

in the Residential Tenancies Act 1997.

Subclause (1)(c) amends the definition of SDA residency

agreement to refer to an SDA dwelling rather than an SDA

enrolled dwelling. This amendment is due to changes being

made in the Residential Tenancies Act 1997, to reflect the

intention that the protections for SDA enrolled dwellings are now

extended to similar accommodation and support arrangements.

Subclause (1)(e) amends short-term accommodation and

assistance dwelling to omit "and assistance" to reflect new

terminology used in the industry.

Subclause (2) repeals the definitions of group home, notice of

intention to vacate, notice of temporary relocation and notice to

vacate which relate to provisions in Division 2 of Part 5 which

are being repealed, and it also repeals the definitions of SDA

recipient, NDIS dwelling and Supported Independent Living

provider.

Clause 86 substitutes a reference to "NDIS dwelling" with "SDA dwelling,

or a short-term accommodation dwelling" in section 27(2)(ab) of

the Disability Act 2006, so that the Senior Practitioner's power to

visit and inspect any place where services are provided under the

NDIS excludes private residences that are not SDA dwellings or

short-term accommodation dwellings, rather than NDIS

dwellings as is currently the case.

Clause 87 amends section 30A of the Disability Act 2006 to change

terminology to "short-term accommodation and assistance

dwelling", and as a result of the new definition of SDA dwelling

which captures SDA enrolled dwellings and other dwellings to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Subclause (1) substitutes "NDIS dwellings" with the words

"SDA dwellings or short-term accommodation dwellings" in the

heading to section 30A of the Disability Act 2006.

45

Subclause (2) substitutes "SDA enrolled dwelling” with

"SDA dwelling” in section 30A(1) of the Disability Act 2006

and provides that in subsection 30A(1)(c), (d) and (g),

requirements to comply with the NDIS Act relate to NDIS

participants or DSOA clients.

Subclause (3) substitutes "short-term accommodation and

assistance dwelling” with short-term accommodation dwelling"

in section 30A(2) of the Disability Act 2006.

Subclause (4) substitutes "SDA enrolled dwelling” with

"SDA dwelling” in section 30A(3) and (4) of the Disability

Act 2006.

Clause 88 amends section 34(1) of the Disability Act 2006 by substituting

the phrase "NDIS dwellings" with the words ", SDA dwellings or

short-term accommodation dwellings", to reflect the change

introduced in this Bill that community visitors visit SDA

dwellings or short-term accommodation dwellings, not NDIS

dwellings. The phrase "NDIS dwelling" will no longer be used

as not all SDA dwellings are provided under the NDIS.

Clause 89 amends section 56 of the Disability Act 2006 to refer to the new

defined term of "SDA dwelling", rather than "SDA enrolled

dwelling", to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 90 repeals Division 2 of Part 5 of the Disability Act 2006, which

relates to group homes. Group homes will transition from the

Disability Act 2006 to the Residential Tenancies Act 1997.

Clause 91 amends the heading to section 129 of the Disability Act 2006 by

substituting "NDIS dwelling" with "SDA dwelling and short-term

accommodation dwelling", to reflect the change introduced in

this Bill that the phrase "NDIS dwelling" will no longer be used

given that not all SDA dwellings are provided under the NDIS.

It also amends section 129 to use the new defined term of

"SDA dwelling", rather than "SDA enrolled dwelling", to reflect

the intention that the protections for SDA enrolled dwellings are

now extended to similar accommodation and support

arrangements, and "short-term accommodation dwelling" rather

than "short-term accommodation and assistance dwelling"

(to reflect industry terminology).

46

Clause 92 amends section 130(2)(a) of the Disability Act 2006 to use the

new defined term of "SDA dwelling", rather than "SDA enrolled

dwelling", as introduced by this Bill. It also substitutes the term

"short-term accommodation and assistance dwelling" in section

130(2)(b) of the Disability Act 2006 with "short-term

accommodation dwelling". It also substitutes "NDIS dwelling"

in section 130(3)(d) of the Disability Act 2006 with

"SDA dwelling or short-term accommodation dwelling" to reflect

that the phrase "NDIS dwelling" will no longer be used as not all

SDA dwellings are provided under the NDIS.

Clause 93 amends terminology in section 131A of the Disability Act 2006,

including its heading. Currently section 131A provides for

requests for a community visitor to see an NDIS resident.

"NDIS resident" is currently defined as an SDA resident living in

an SDA enrolled dwelling or a person living in a short-term

accommodation and assistance dwelling. The amendments

change section 131A to—

• reflect use of the new defined term "SDA dwelling"

instead of "SDA enrolled dwelling" to reflect the

intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation

and support arrangements; and

• reflect the use of "short-term accommodation dwelling"

instead of "short-term accommodation and assistance

dwelling"; and

• replace "NDIS resident" with "NDIS participant, DSOA

client or SDA resident" as applicable given that the term

"NDIS resident" will no longer be used as not all

residents in SDA dwellings are NDIS participants; and

• replace references to "Supported Independent Living Provider" given that term is being repealed.

Clause 94 amends terminology in section 132(2) and (3) of the Disability

Act 2006. These currently relate to reporting requirements for

providers of SDA enrolled dwellings and short-term

accommodation and assistance dwellings for "NDIS residents".

"NDIS resident" is currently defined as an SDA resident living in

an SDA enrolled dwelling or a person living in a short-term

accommodation and assistance dwelling. The amendments

change terminology in section 132(2) and (3) to—

47

• reflect the new defined term "SDA dwelling" instead of

"SDA enrolled dwelling" to reflect the intention that the

protections for SDA enrolled dwellings are now

extended to similar accommodation and support

arrangements; and

• reflect the use of "short-term accommodation dwelling"

instead of "short-term accommodation and assistance

dwelling"; and

• replace "NDIS resident" with NDIS participant, DSOA

client or SDA resident given that that term will no

longer be used as not all residents in SDA dwellings are

NDIS participants; and

• replace references to "Supported Independent Living

provider" given that term is being repealed and replaced

with "the provider who provides daily independent

living supports at the SDA dwelling".

Clause 95 amends new section 191(1)(b)(ii) of the Disability Act 2006 as

substituted by clause 56 (regarding the accommodation in which

a person subject to a supervised treatment order application may

reside) to use the new defined term of "SDA dwelling", rather

than "SDA enrolled dwelling", to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 96 amends the regulation making power in section 221(1)(fc) of the

Disability Act 2006 to use the new defined term of

"SDA dwelling", rather than "SDA enrolled dwelling", to reflect

the intention that the protections for SDA enrolled dwellings are

now extended to similar accommodation and support

arrangements.

Clause 97 inserts a new Division 7 into Part 10 of the Disability Act 2006.

This provides for transitional provisions as a consequence of the

amendments made under Division 2 of Part 2 of this Bill.

New section 264 provides that in Division 7 of Part 10, the

commencement day means the day on which Division 2 of Part 2

of the Disability Amendment Act 2022 comes into operation.

New section 265 provides for matters relating to supervised

treatment orders and interim supervised treatment orders if

immediately before the commencement day, a person resides in a

48

residential service that is a group home or an SDA enrolled

dwelling and is subject to a supervised treatment order or an

interim supervised treatment order. On and from the

commencement day, such orders are taken to comply with

section 193(3)(b) and the disability service provider or registered

NDIS provider of the Authorised Program Officer that is

specified in the order, or for an interim order, who applied for the

order, is the primary service provider. It is intended that the

person still be required to reside at the same accommodation.

New section 266 provides for matters relating to applications for

a supervised treatment order or an interim treatment order before

VCAT, where the person in respect of whom the application is

made resides in a residential service that is a group home or an

SDA enrolled dwelling. New section 266(2) provides that on and

from the commencement day the application will be taken to be

made in accordance with section 191, and a certificate given by

the Senior Practitioner under section 191(3) as in force

immediately before the day on which Division 1 of Part 2 of the

Disability Amendment Act 2022 comes into operation is taken

to be a certificate under section 191A(1), and to relate to

accommodation of a type specified in section 191(1)(b). Further,

the disability service provider or registered NDIS provider that

appointed the Authorised Program Officer that applied for the

order is the primary service provider.

New section 267 provides for matters relating to assessment

orders in force immediately before the commencement day in

respect of a person who resides in a residential service that is a

group home or an SDA enrolled dwelling. On and from the

commencement day, the assessment order is taken to enable the

person in respect of whom the order is made to be detained in an

SDA dwelling to enable a treatment plan to be prepared for that

person. It also provides that any assessment orders made before

the commencement day remain in force until the order expires or

is revoked and the disability service provider or registered NDIS

provider that appointed the Authorised Program Officer that

applied for the order is the primary service provider.

New section 268 provides that despite the repeal of Division 2 of

Part 5 by the Disability Amendment Act 2022, that Division as

in force immediately before that repeal continues to apply in

relation to a notice of increase, notice of temporary relocation,

notice to vacate, notice of intention to vacate, notice of

49

withdrawal, possession order or warrant of possession if the

specified notice, order or warrant was given or obtained before

the commencement day.

Subdivision 2—Secretary's powers and functions

Clause 98 amends section 8(2) of the Disability Act 2006 to provide that

the specified functions of the Secretary regarding setting policies

for, access to, and quality, monitoring, evaluation or review of,

disability services relate specifically to services provided,

contracted or funded by the Secretary. This amendment is

intended to reduce duplication of responsibilities and streamline

provisions by ensuring that the Secretary is only responsible for

services that they fund or contract under sections 9 and 10 of the

Disability Act 2006.

Clause 99 amends section 99(1) of the Disability Act 2006 so that the

power of the Secretary to issue directions applies only to those

disability service providers that are contracted service providers

or funded service providers, rather than to all disability service

providers. This amendment is clarify that the Secretary is only

responsible for disability services that the Secretary funds or

contracts under sections 9 and 10 of the Disability Act 2006.

Clause 100 amends section 100(1) of the Disability Act 2006 so that the

Secretary may only exercise the powers under section 100(2) for

those disability service providers that are contracted service

providers or funded service providers. rather than to all disability

service providers. This amendment is intended to clarify that the

Secretary is only responsible for disability services that the

Secretary funds or contracts under sections 9 and 10 of the

Disability Act 2006.

Clause 101 amends section 206 of the Disability Act 2006 so that the

Secretary may only exercise the powers under section 206 for

those disability service providers that are contracted service

providers or funded service providers rather than to all disability

service providers. This amendment is intended to clarify that the

Secretary is only responsible for disability services that the

Secretary funds or contracts under sections 9 and 10 of the

Disability Act 2006.

50

Clause 102 amends section 210 of the Disability Act 2006 to limit

authorised officers powers to those disability service providers

that are contracted service providers and funded service providers

as the Secretary's functions are amended to apply only to those

disability services which are provided, contracted or funded by

the Secretary. Section 210 is also amended to adopt gender

inclusive language.

Subdivision 3—Information sharing

Clause 103 amends section 39 of the Disability Act 2006 to repeal

subsections (2), (3), (3A), (4), (5), (6), (7), (8) and (9) relating to

information sharing. This is because the information sharing

provisions are being reenacted with amendments under

clause 105 of the Bill to become the new Part 8A of the

Disability Act 2006. Subsection (1) is retained as it relates to the

Secretary's obligation to ensure the Department maintain

information systems.

Clause 104 repeals section 39A of the Disability Act 2006. This provision is

reenacted under clause 105 of the Bill as new section 202AD in

the Disability Act 2006 with minor amendments.

Clause 105 inserts a new Part 8A after Part 8 of the Disability Act 2006

relating to the use and disclosure of information. These

provisions largely reenact the current sections 39(2), (3), (3A),

(4), (5), (6), (7), (8) and (9) and 39A of that Act, as repealed by

clauses 103 and 104 of the Bill, with some amendments.

New section 202AA provides the definitions of protected

information and relevant person for the purposes of new

Part 8A. Protected information is defined as information that is

gained by or given to a relevant person in their official capacity,

is either obtained during the course of providing disability

services to the person or obtained by a relevant person using

restrictive practices or implementing supervised treatment on a

person, and identifies (or is likely to lead to the identification of)

the person to whom the information relates. The definition for

relevant person provides for a list of people, and includes a

current or former disability service provider, registered NDIS

provider in certain circumstances, persons appointed, employed

or engaged by those providers, persons appointed to any office

under the Disability Act 2006 or employed or engaged under that

51

Act, persons who are public servants for the purposes of that Act,

and the Senior Practitioner.

New section 202AB(1) provides that a relevant person must not

disclose, use or transfer protected information unless the

disclosure, use or transfer is in the performance of a function or

exercise of a power under the Disability Act 2006 or any other

Act (including Commonwealth Acts), or unless required or

permitted by the Disability Act 2006 or any other Act

(including Commonwealth Acts). Failure to comply with new

section 202AB(1) is an offence punishable by a maximum

penalty of 20 penalty units. Subsections (2), (3) and (4) of new

section 202AB provide a list of people and bodies to whom, and

the circumstances in which, a relevant person may disclose

protected information.

Despite anything to the contrary in section 202AB(1), new

section 202AC authorises any person or body to use, transfer or

disclose the specified information to the NDIA, the NDIS Quality

and Safeguards Commission, an NDIS provider or any prescribed

person or body or prescribed class of person or body. The

disclosure, use or transfer of the specified information must be

for any purpose for or with respect to the NDIS or its

implementation.

Subsection (2) of new section 202AC provides that a person or

body to whom information is disclosed under subsection (1) is

authorised to use or transfer that information for any purpose for

or with respect to the NDIS or the implementation of the NDIS.

Under new section 202AC(3), it is an offence for a person or

body to whom information is disclosed under subsection (1) to

use, disclose or transfer that information unless the person or

body does so for the purpose for which the information has been

disclosed to the person or body; or the person or body is

authorised by or under an Act or other law to do so. Failure to

comply with new section 202AC(3) is an offence punishable by a

maximum penalty of 20 penalty units.

New section 202AD authorises the Secretary to transfer

information about worker screening, as defined in new section

202AD(3), to the specified entities including the NDIS Quality

and Safeguards Commission, Disability Worker Registration

Board, the Victorian Disability Worker Commission and its

Commissioner, the Secretary within the meaning of the Worker

Screening Act 2020, an NDIS worker screening unit within the

52

meaning of the Worker Screening Act 2020, and the relevant

provider. The Secretary may transfer or disclose information

about worker screening at their own initiative or on request of the

entity. Section 202AD reenacts the current section 39A, with one

amendment to reflect that information about worker screening

may also relate to the provision of disability services to DSOA

clients, as well as NDIS participants.

New section 202AE provides that sections 202AB, 202AC and

202AD have effect despite any other Act or law other than the

Charter of Human Rights and Responsibilities Act 2006 and

that new Part 8A is not intended to affect a relevant person's

obligations in relation to the disclosure, use and transfer of

information under the NDIS Act.

Clause 106 inserts a new paragraph (fd) in the regulation making power in

section 221(1) of the Disability Act 2006 to provide that the

Governor in Council has the power to prescribe persons and

bodies to which protected information may be disclosed under

new section 202AB(4) or 202AC(1), including persons or bodies

established, or performing functions or exercising powers under

the law of another State, a Territory or the Commonwealth.

Clause 107 inserts a new section 261 of the Disability Act 2006, which is a

transitional provision in relation to the use and disclosure of

information. It provides that on and from the day Subdivision 3

of Division 2 of Part 2 of the Disability Amendment Act 2022

comes into operation, Part 8A applies to any protected

information collected before that day that is disclosed, used or

transferred after that day.

Part 3—Further amendment of Disability Act 2006

Clause 108 inserts a new definition for forensic disability service provider

into section 3(1) of the Disability Act 2006, being a disability

service provider that is prescribed to operate a residential

treatment facility.

Clause 109 amends section 89 of the Disability Act 2006 by substituting a

new subsection (3). Section 89 of the Disability Act 2006

requires a disability service provider to provide relevant written

information to a person who commences using disability

services. Current section 89(3) provides that this requirement

does not apply if the person is a resident in a residential service

53

and the relevant information has been included in the residential

statement provided under section 57 of the Disability Act 2006.

New section 89(3) replicates current section 89(3) but adds an

additional situation where the information does not have to be

provided under section 89, being a situation where the

information has been provided to a person admitted to a

residential treatment facility in accordance with new

section 152A (inserted by clause 112 of the Bill).

Clause 110 amends section 151 of the Disability Act 2006, which provides

for the proclamation of residential treatment facilities.

Subclause (1) amends section 151(1) to enable premises, or

programs provided on premises, used by a forensic disability

service provider to provide residential services to be proclaimed

by the Governor in Council to be a residential treatment facility.

Currently, only premises, or programs provided on premises,

used by the Secretary can be proclaimed to be residential

treatment facilities. Subclause (2) inserts a note at the foot of

section 151(1) of the Disability Act 2006. The note states that

residential treatment facilities are no longer classified as

short-term or long-term residential treatment facilities, referring

to new section 262 (a transitional provision inserted by

clause 131 of the Bill). This reflects the repeal of current

section 151(2) by subclause (3).

Subclause (3) repeals section 151(2) of the Disability Act 2006.

Section 151(2) allows proclamations under section 151 to

classify residential treatment facilities as being short-term or

long-term. The repeal of section 151(2) of the Disability

Act 2006 will ensure a proclamation made under section 151(1)

of that Act no longer classifies a residential treatment facility as

short-term or long-term.

Subclause (4) amends section 151(4). Current section 151(4)

provides that subject to section 151(5), for the purposes of

Division 1 of Part 8 of the Disability Act 2006, a person with an

intellectual disability can only be admitted to a short-term

residential treatment facility for a period not exceeding 5 years.

The amendments to section 151(4) of the Disability Act 2006

made by subclause (4) make section 151(4) subject to new

section 152B (inserted by clause 113 of the Bill) in addition to

section 151(5), and also updates the terminology to reflect the

54

removal of the short-term and long-term classifications of

residential treatment facilities.

Subclause (5) omits the phrase "short-term" from section 151(5)

to reflect the removal of the short-term and long-term

classifications of residential treatment facilities.

Subclause (6) repeals section 151(6) of the Disability Act 2006.

Current section 151(6) relates to the classification of a particular

facility as a short-term residential treatment facility. Such

classifications are being removed by the Bill and thus

section 151(6) is no longer relevant.

Subclause (7) amends section 151(7) of the Disability Act 2006

to provide that a residential treatment facility can be operated by

either the Secretary through the Department or a forensic

disability service provider. Currently, only the Secretary through

the Department can operate a residential treatment facility.

Subclause (8) amends section 151(8) of the Disability Act 2006

to provide that the Secretary is required to appoint an Authorised

Program Officer only in respect of a residential treatment facility

that they operate. This is to account for the amendments to the

Disability Act 2006 made by the Bill which enable a forensic

disability service provider to operate a residential treatment

facility, as it is not intended that the Secretary be required to

appoint an Authorised Program Officer in respect of residential

treatment facilities not operated by the Secretary.

Subclause (9) inserts a new subsection (9) to section 151 of the

Disability Act 2006, which provides that a forensic disability

service provider must appoint an Authorised Program Officer in

respect of each residential treatment facility it operates. This is

to ensure that each residential treatment facility has an

Authorised Program Officer with appropriate oversight.

Clause 111 amends section 152 of the Disability Act 2006, which sets out

the circumstances in which a person can be admitted to a

residential treatment facility.

Subclause (1) amends the matters that the Secretary must be

satisfied of under section 152(1) before admitting a person to a

residential treatment facility. These matters currently include,

among other things, that the person has an intellectual disability

and that the person presents a serious risk of violence to another

person.

55

New matters that the Secretary must further be satisfied of are

that treatment is suitable for the person having regard to their

willingness to engage in and benefit from the treatment, that the

person is able to engage in the therapeutic environment at the

residential treatment facility, and that admission is appropriate

having regard to the person's vulnerability, any risks the person

may present to other residents, and the compatibility of the

person with other residents at the residential treatment facility.

The requirement in current section 152(1)(e) of the Disability

Act 2006 that the Secretary be satisfied that the Senior

Practitioner has been notified of the proposed admission is

removed. New requirements relating to the role of the Senior

Practitioner are provided for in new sections 152(1B)(a) and (b)

inserted by subclause (2).

The requirement in current section 152(1)(f) of the Disability

Act 2006 that the Secretary be satisfied that an order specified

under section 152(2) of that Act applies to the person is also

removed from section 152(1), though a similar provision is

inserted in new section 152B(1B)(b) by subclause (2).

Subclause (2) inserts new sections 152(1A) and 152(1B).

New section 152(1A) requires the Secretary to arrange for the

person to undergo an assessment prior to the person being

admitted to a residential treatment facility.

New section 152(1B) prohibits a person from being admitted to a

residential treatment facility unless the Secretary has consulted

and considered the advice of the Senior Practitioner about the

suitability of the treatment to be provided to the person, and

unless a specified order applies enabling compulsory treatment to

be provided to the person. New section 152(1B)(a) effectively

strengthens the role of the Senior Practitioner when compared to

current section 152(1)(e), which it replaces. New section

152(1B)(b) recasts current section 152(1)(f) by providing that a

person must not be admitted to a residential treatment facility

unless an order specified in section 152(2) applies to the person

enabling compulsory treatment to be provided. Current section

152(1)(f) provides that a person may be admitted if the Secretary

is satisfied that an order specified in section 152(2) applies to the

person enabling compulsory treatment to be provided.

Subclause (3) amends section 152(2) of the Disability Act 2006,

which specifies a list of orders.

56

Paragraph (a) substitutes "(1)(f)" with "(1B)(b)" in section

152(2), as a consequence of the amendments made to

section 152.

Paragraph (b) repeals section 152(2)(e) of the Disability

Act 2006 so that an extended supervision order made under the

Serious Sex Offenders Monitoring Act 2005 is no longer a

specified order for the purposes of new section 152(1B)(b).

Section 152(2)(e) is no longer required because the Serious Sex

Offenders Monitoring Act 2005 has been repealed and the

supervision orders under that Act have now expired.

Subclause (4) amends section 152(3) of the Disability Act 2006,

which requires the Secretary to provide a statement to a relevant

person or body in relation to certain orders specified in section

152(2) before a person can be admitted to a residential treatment

facility as a result of those orders. Paragraphs (a) to (c) make

various amendments to update section references and punctuation

in section 152(3) to reflect the amendments made to section 152

by the Bill. Paragraph (d) inserts a new section 152(3)(d), to add

a requirement for the Secretary's statement under this subsection

to specify that the Senior Practitioner has been consulted in

relation to the proposed admission.

Subclause (5) repeals section 152(4)(ab) of the Disability

Act 2006 to remove the Post Sentence Authority as a relevant

person or body for an order specified in section 152(2)(e), for the

purposes of section 152(3). This is because section 152(4)(ab) is

no longer required as current section 152(2)(e) is repealed by

subclause (3)(b).

Subclause (6) inserts new subsections (5), (6), (7), (8) and (9)

into section 152 of the Disability Act 2006.

New section 152(5) provides that, subject to subsections (6) and

(7) if the Secretary becomes aware that the matters in subsection

(1) or an order in subsection (2) may no longer apply to the

person residing at a residential treatment facility, the Secretary

must not allow the person to continue to reside at a residential

treatment facility unless they are satisfied of the matters in

subsection (1) or an order under subsection (2) continues to

apply.

New section 152(6) provides that the Secretary may allow a

person who is subject to an order specified in subsection (2) to

continue to reside at a residential treatment facility for up to

57

3 months after ceasing to be satisfied of a matter in

subsection (1).

New section 152(7) provides that the Secretary, after consulting

and considering any advice of the Senior Practitioner, may allow

a person who is subject to an order specified in subsection (2)(c)

requiring the person to be detained at a residential treatment

facility to reside at that facility until the order is varied or

revoked.

New section 152(8) requires that the Secretary notify the person,

body or court that made the order specified in subsection (2) if

the Secretary allows a person to continue to reside at a residential

treatment facility under new section 152(6).

New section 152(9) defines admission as including readmission

of a person to a residential treatment facility, and any period of

extension by the Secretary under section 152B, but does not

include a period during which the Secretary allows the person to

continue to reside in the residential treatment facility under

subsection (6) or (7).

Clause 112 inserts new section 152A into the Disability Act 2006, which

requires that the Secretary or a forensic disability service

provider (as applicable) provides a person being admitted to a

residential treatment facility with relevant written information

about the services to be provided to them. This includes any

conditions impacting them; their rights, entitlements and

obligations; their treatment plan; and information that they may

be apprehended under section 160 of the Act if absent from the

facility without leave of absence or special leave of absence.

The Secretary or forensic disability service provider is also

required to provide the person with details of any material update

to relevant information about security conditions to which the

person is subject and about the person's treatment plan. Any

information or details provided to the person must also be

explained to them in accordance with section 7 of the Disability

Act 2006 which sets out how information is to be given to a

person with a disability.

Clause 113 inserts new section 152B into the Disability Act 2006, which

relates to the Secretary's ability to extend the admission of person

to a residential treatment facility for up to 12 months at a time.

The Secretary must be satisfied that the person continues to meet

admission criteria, would benefit from further treatment, the

58

treatment continues to be appropriate, and that further treatment

is likely to result in a reduction to any risk of violence the person

presents to another person. The Secretary must arrange for the

person to undergo an assessment for the purpose of making a

decision to extend their admission, and must consult with the

Senior Practitioner and consider their advice. The Secretary may

have regard to operational demands in considering whether an

extension should be made. An extension cannot exceed the

period of the order specified in section 152(2) of the Disability

Act 2006 or any period specified in a direction given under that

order.

Clause 114 amends section 153 of the Disability Act 2006 which sets out

requirements for treatment plans made by an Authorised Program

Officer.

Subclause (1) omits ", 152(2)(d), 152(2)(e)" from section 153(1)

so that an Authorised Program Officer is only required to prepare

a treatment plan for persons admitted to a residential treatment

facility under an order specified in section 152(2)(a), 152(2)(b) or

152(2)(f). The reference to section 152(2)(d) is not required as

section 167 of the Disability Act 2006 provides that the

Secretary is responsible for preparing treatment plans in relation

to such persons. The reference to section 152(2)(e) is no longer

necessary as that section is repealed by clause 111(3) of the Bill.

Subclause (2) inserts new section 153(3)(aab), which requires the

Authorised Program Officer to explain the treatment plan to the

person with a disability in accordance with section 7 of the

Disability Act 2006 which sets out how information is to be

given to a person with a disability.

Clause 115 removes references to section 152(2)(e) in section 154(1) and (5)

of the Disability Act 2006 to reflect the repeal of section

152(2)(e) by clause 111(3). Section 154 provides for the annual

review of treatment plans.

Clause 116 removes the reference to section 152(2)(e) in section 155(5) of

the Disability Act 2006 to reflect the repeal of section 152(2)(e)

by clause 111(3). Section 155 provides for applications for

reviews of treatment plans.

Clause 117 amends section 156 of the Disability Act 2006, which provides

for a person's leave of absence from a residential treatment

facility.

59

Subclause (1) removes the reference to section 152(2)(e) in

section 156(1) to reflect the repeal of section 152(2)(e) by clause

111(3), and subclause (2) inserts new subsections (4A) and (4B)

into section 156 of the Disability Act 2006. New sections

156(4A) and (4B) provide new functions for the Secretary in

relation to a leave of absence.

New section 156(4A) requires an Authorised Program Officer of

a residential treatment facility operated by a forensic disability

service provider to obtain the approval of the Secretary before

allowing, extending or revoking a leave of absence.

New section 156(4B) provides the Secretary with the ability to

review a decision of the Authorised Program Officer to refuse to

grant or extend a leave of absence, or to revoke a leave of

absence.

Clause 118 amends section 157 of the Disability Act 2006 which sets out

special leave requirements for residents detained in a residential

treatment facility under a specified order.

Subclause (1) omits the reference to section 152(2)(e) in section

157(1) to reflect the repeal of section 152(2)(e) by clause 111(3).

Subclause (2) amends section 157(2) so that the Authorised

Program Officer's ability to grant an application for special leave

of absence is subject to new section 157(2A), inserted by

subclause (3).

Subclause (3) inserts new section 157(2A), which provides that if

the residential treatment facility is operated by a forensic

disability service provider, the Authorised Program Officer must

obtain the approval of the Secretary before granting an

application for special leave of absence.

Subclause (4) inserts new sections 157(3A) and (3B).

New section 157(3A) provides that the Secretary may, on the

application of the resident, review a decision of the Authorised

Program Officer to refuse to grant an application for special leave

of absence. This is a new function for the Secretary as current

sections 157(3) and (4) provide for the review of such decisions

by VCAT only.

New section 157(3B) provides that the resident may apply to

VCAT for review of the Secretary's decision to refuse to approve

a decision to grant special leave, or a decision to affirm a

60

decision to refuse to grant an application for special leave. This

ensures that the exercise of the Secretary's new decision-making

powers under new sections 157(2A) and (3A) are reviewable by

VCAT.

Subclause (5) inserts a reference to new section 157(3B) into

section 157(4), so that VCAT can make orders in relation to

applications for review under new section 157(3B).

Clause 119 amends section 158 of the Disability Act 2006, which provides

for the suspension of a leave of absence or a special leave of

absence.

Subclauses (1) and (2) amend section 158(1), which provides that

a suspension can only be granted if the Secretary or Authorised

Program Officer is satisfied that the safety of the person or public

will be seriously endangered without the suspension, and section

158(3), which provides that if the Secretary or Authorised

Program Officer is satisfied that the reason for the suspension no

longer exists they must lift the suspension immediately, so that

they are subject to new section 158(3A).

Subclause (3) inserts new section 158(3A), which provides that

the Authorised Program Officer of a residential treatment facility

operated by a forensic disability service provider must obtain the

approval of the Secretary before suspending, or lifting the

suspension of, leave of absence or special leave of absence. This

change accounts for amendments in the Bill enabling forensic

disability service providers (rather than just the Secretary) to

operate residential treatment facilities.

Clause 120 substitutes section 159(3) of the Disability Act 2006 so that the

resident detained in a residential treatment facility is regarded as

in the custody of the Secretary, rather than in the custody of the

person in charge of the residential treatment facility, as is the

current case. This change accounts for amendments in this Bill

enabling forensic disability service providers to operate

residential treatment facilities.

Clause 121 amends section 160 of the Disability Act 2006, which sets out

who can apprehend a resident detained in a residential treatment

facility absent from the residential treatment facility without

leave of absence or special leave of absence. Clause 121

substitutes section 160(b) and inserts new section 160(c) and (d).

61

New section 160(b) and (c) effectively replace current section

160(b). Current section 160(b) refers to the person in charge of

the residential treatment facility or any person employed under

the Public Administration Act 2004 and authorised by the

person in charge of the residential treatment facility. New

section 160(b) retains the reference to the person in charge of the

residential treatment facility. New section 160(c) replaces the

reference to any person employed under the Public

Administration Act 2004 and authorised by the person in charge

of the residential treatment facility, with a reference to a person

employed under the Public Administration Act 2004 and

authorised by the Secretary. This change accounts for

amendments in the Bill enabling forensic disability service

providers (rather than just the Secretary) to operate residential

treatment facilities.

New section 160(d) provides for an additional class of persons

who can apprehend residents under this section, being persons of

a prescribed class authorised by the Secretary.

Clause 122 amends section 162 of the Disability Act 2006, which provides

for the extended leave of a RTO resident from a residential

treatment facility. The amendments shift responsibilities under

this section from the Secretary to the Authorised Program

Officer.

Subclause (1) substitutes section 162(3)(b) to allow the

Authorised Program Officer, with the approval of the Secretary,

to make an application for extended leave for a RTO resident.

Under current section 162(3)(b), it is the Secretary who can make

the application.

Subclause (2) substitutes section 162(4) with a requirement that

the application include a leave plan prepared by the Authorised

Program Officer. Under current section 162(4) of the Disability

Act 2006, it is the Secretary who must prepare the plan.

Clause 123 amends section 163(2) of the Disability Act 2006, which

provides for appeals against grants of extended leave.

"The Secretary" is substituted with the words "The Authorised

Program Officer, with the approval of the Secretary" to provide

that the Authorised Program Officer (rather than the Secretary) is

responsible for appealing to the Court of Appeal against a grant

of extended leave and to reflect the change in the Secretary's

62

responsibility. It also amends the section to adopt gender

inclusive language.

Clause 124 amends section 164 of the Disability Act 2006, which provides

for the suspension and revocation of extended leave.

This clause replaces references to the Secretary with references to

the Authorised Program Officer, with the approval of the

Secretary. These amendments shift the responsibility for

determining whether extended leave should be suspended or

revoked, and the obligation to lift a suspension where the

underlying reason for it no longer exists, from the Secretary to

the Authorised Program Officer, and also reflects the change in

the Secretary's responsibility.

Clause 125 amends section 165(2) of the Disability Act 2006, which

concerns appeals regarding revocation of extended leave. It

replaces references to the Secretary with references to the

Authorised Program Officer to shift the responsibility for appeals

under this provision from the Secretary to the Authorised

Program Officer, though the Secretary's approval is required to

appeal.

Clause 126 amends section 167 of the Disability Act 2006, which provides

for the preparation of treatment plans for persons who have an

intellectual disability for the purposes of section 166 of the

Disability Act 2006. Section 166 provides for the transfer of a

person with an intellectual disability from a prison to a residential

treatment facility as a security resident.

Subclause (1)(a) amends section 167(2) so that the Secretary,

rather than the Authorised Program Officer, is required to give a

copy of the treatment plan to the person with an intellectual

disability within 2 days of the treatment plan being prepared.

Under section 167(1), the Secretary is responsible for preparing

treatment plans.

Subclause (1)(b) inserts new section 167(2)(aab) which requires

the Secretary to explain the treatment plan to the person with a

disability in accordance with section 7 of the Disability Act 2006

which sets out how information is to be given to a person with a

disability.

Subclause (2) replaces the reference to "An" Authorised Program

Officer with a reference to "The" Authorised Program Officer in

section 167(3).

63

Clause 127 amends sections 168(1) and (3)(c) of the Disability Act 2006 to

substitute references to Authorised Program Officer with the

Secretary instead, so that while a security order is in force, the

Secretary is required to apply to VCAT for an annual review of

the treatment plan and security order and so that the Secretary

may be required by VCAT to prepare a new treatment plan.

Clause 128 amends sections 169(1) and (3)(c) of the Disability Act 2006 to

substitute references to Authorised Program Officer with the

Secretary instead, so that the Secretary can apply to VCAT for

review of a treatment plan and so that the Secretary may be

required by VCAT to prepare a new treatment plan.

Clause 129 amends section 176 of the Disability Act 2006 to insert a

requirement for the person in charge of a residential treatment

facility to advise the Secretary as to the circumstances in which a

security resident death has occurred if the residential treatment

facility is operated by a forensic disability service provider.

Currently, section 176 of the Disability Act 2006 only requires

that the person in charge advise the Secretary to the Department

of Justice and Community Safety. The amendment to

section 176 accounts for amendments in the Bill enabling

forensic disability service providers (rather than just the

Secretary) to operate residential treatment facilities.

Clause 130 inserts new sections 221(1)(fe) and (ff) into the Disability

Act 2006, to provide for new regulation-making powers for the

Governor in Council.

New section 221(1)(fe) enables regulations to be made with

respect to prescribing a disability service provider to be a

forensic disability service provider. This is required to give

effect to the meaning of "forensic disability service provider", a

definition which is inserted into section 3(1) of the Disability

Act 2006 by clause 108 of the Bill, and therefore to enable

prescribed disability service providers to operate residential

treatment facilities in accordance with the Disability Act 2006 as

amended by the Bill.

New section 221(1)(ff) enables regulations to be made with

respect to prescribing classes of persons who may apprehend a

resident who is absent from a residential treatment facility

without leave. This gives effect to new section 160(d) which is

inserted into the Disability Act 2006 by clause 121.

64

Clause 131 inserts new sections 262 and 263 into the Disability Act 2006

which provide for transitional matters in relation to the

classification of residential treatment facilities. This is due to the

amendments made to section 151 by clause 110, which remove

the current classification of short-term and long-term residential

facilities.

New section 262 provides that if immediately before the day on

which Part 3 of the Disability Amendment Act 2022 comes into

operation a residential treatment facility is classified as a

short-term residential treatment facility or a long-term residential

treatment facility, then on and from that day the facility is taken

to be a residential treatment facility without further classification.

It also provides that the facility known as the Intensive

Residential Treatment Program of the Statewide Forensic Service

is taken to be a residential treatment facility without further

classification.

New section 263 provides that if a person has been admitted to a

residential treatment facility for a period of 5 or more years as at

the day on which Part 3 of the Disability Amendment Act 2022

comes into operation, the Secretary, within 12 months of that

day, must assess the person's circumstances to determine whether

the person continues to meet the criteria under the new section

152(1) for admission. If they do not meet the criteria, the

Secretary may, if the person is subject to an order specified in

section 152(2), allow the person to continue to reside at the

residential treatment facility for up to 6 months or, if the person

is subject to a custodial supervision order made under section 26

of the Crimes (Mental Impairment and Unfitness to be Tried)

Act 1997 requiring them to be detained at the facility, until that

order is varied. The Secretary must notify the person, body or

court who made the order requiring the person to reside at the

facility if they allow the person to continue to reside at the

residential treatment facility.

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Part 4—Amendment of Disability Service Safeguards Act 2018

and Residential Tenancies Act 1997

Division 1—Amendment of Disability Service Safeguards

Act 2018

Clause 132 amends section 151(3) of the Disability Service Safeguards

Act 2018 to allow the Disability Worker Registration Board of

Victoria to require an applicant seeking registration as a disability

worker to disclose their criminal history or if the applicant has a

current NDIS clearance, their NDIS clearance. This amendment

also allows the Disability Worker Registration Board to require

the applicant to authorise the Disability Worker Registration

Board to obtain the applicant's criminal history or NDIS

clearance or status of that clearance. This is because persons

who already have an NDIS clearance have had their criminal

history assessed; allowing an NDIS clearance to be obtained

instead of conducting a new criminal history check reduces the

cost and time of registration and renewal of registration whilst

still preserving safeguards.

Clause 133 substitutes section 152 of the Disability Service Safeguards

Act 2018 to allow the Disability Worker Registration Board of

Victoria, before deciding an application for registration, to obtain

a copy of an applicant's NDIS clearance (if held), as an

alternative to checking the applicant's criminal history, as is

currently required. This is because persons who already have an

NDIS clearance have had their criminal history assessed;

allowing an NDIS clearance to be obtained instead of conducting

a new criminal history check reduces the cost and time of

registration and renewal of registration whilst still preserving

safeguards.

Clause 134 amends section 156(b) of the Disability Service Safeguards

Act 2018 so that, in assessing whether an individual is not a

suitable person to hold general registration, the Disability Worker

Registration Board of Victoria may have regard to the status of

the individual's NDIS clearance (if the individual holds a current

clearance or has held an NDIS clearance), as an alternative to the

individual's criminal history. This is because persons who

already have an NDIS clearance have had their criminal history

assessed; allowing an NDIS clearance to be obtained instead of

conducting a new criminal history check reduces the cost and

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time of registration and renewal of registration whilst still

preserving safeguards.

Clause 135 amends section 159(b) of the Disability Service Safeguards

Act 2018 so that, in assessing whether an individual is not a

suitable person to hold limited registration, the Disability Worker

Registration Board of Victoria may have regard to the status of

the individual's NDIS clearance (if the individual holds a current

clearance, or has held an NDIS clearance), as an alternative to the

individual's criminal history. This is because persons who

already have an NDIS clearance have had their criminal history

assessed; allowing an NDIS clearance to be obtained instead of

conducting a new criminal history check reduces the cost and

time of registration and renewal of registration whilst still

preserving safeguards.

Clause 136 amends section 167(a) of the Disability Service Safeguards

Act 2018 so that, in assessing whether an individual is not a fit

and proper person to hold non-practicing registration, the

Disability Worker Registration Board of Victoria may have

regard to the status of the individual's NDIS clearance (if the

individual holds a current clearance, or has held an NDIS

clearance), as an alternative to the individual's criminal history.

This is because persons who already have an NDIS clearance

have had their criminal history assessed; allowing an NDIS

clearance to be obtained instead of conducting a new criminal

history check reduces the cost and time of registration and

renewal of registration whilst still preserving safeguards.

Clause 137 inserts new section 188(1)(ba) of the Disability Service

Safeguards Act 2018 providing that an annual statement

accompanying an application for renewal of registration under

section 186(3) must also include details of any suspension,

revocation or expiry or surrender of an NDIS clearance, if the

applicant holds an NDIS clearance. This is because an

application for an NDIS clearance requires a stringent assessment

process, and is therefore a strong indicator of whether it would be

appropriate for an applicant's registration to be renewed.

Clause 138 inserts new section 252(h) of the Disability Service Safeguards

Act 2018 to provide a further requirement for the Disability

Worker Registration Board of Victoria to keep a record of

information about the disability NDIS clearance (if any) of each

registered disability worker. This is because an application for an

67

NDIS clearance requires a stringent assessment process, and is

therefore a useful record to maintain for registered disability

workers.

Clause 139 amends section 257 of the Disability Service Safeguards

Act 2018.

Subclause (1) amends the heading to section 257 so that it refers

to a "Worker screening check", rather than an "NDIS worker

screening check". This is to reflect the new defined term

introduced at subclause (6) of this clause and used throughout

section 257.

Subclause (2) amends section 257(1)(a) and (b) to replace

references to "NDIS worker screening unit" and "NDIS worker

screening check" with "worker screening unit" and

"worker screening check" respectively. This is intended to align

with the new definitions of worker screening check and worker

screening unit at new section 257(4) introduced to cover both

NDIS checks and checks made under the Worker Screening

Act 2020, including by interstate worker screening units.

Subclause (3) substitutes a new section 257(2)(a) so that, for the

purposes of determining whether to register a person as a

disability worker or a disability student or to impose conditions,

endorse registration, or suspend or cancel registration, the

Disability Worker Registration Board of Victoria may request a

worker screening unit to give the Disability Worker Registration

Board information including in relation to any of the following—

• whether the disability worker has a current NDIS

clearance that remains in force;

• whether the disability worker has been given an NDIS

exclusion or interim NDIS exclusion;

• whether the disability worker has made an application

for an NDIS clearance and whether the application has

been withdrawn or reinstated; and

• whether the NDIS clearance of the disability worker has

been suspended, revoked or surrendered.

Subclauses (4) and (5) amend section 257(2)(b) and (3) to replace

references to "NDIS worker screening unit" and "NDIS worker

screening check" with "worker screening unit" and

"worker screening check" respectively. This is intended to align

68

with the new definitions of worker screening check and worker

screening unit at new section 257(4) introduced to cover both

NDIS checks and checks made under the Worker Screening

Act 2020, including by interstate worker screening units.

Subclause (6) inserts a new section 257(4) of the Disability

Service Safeguards Act 2018 to define worker screening check

and worker screening unit. These new definitions are required

to cover both NDIS checks and checks made under the Worker

Screening Act 2020, including by interstate worker screening

units.

Clause 140 inserts a new Part 18 into the Disability Service Safeguards

Act 2018 which provides for transitional matters as follows—

• New section 289 provides that Division 1 of Part 11 of

the Disability Service Safeguards Act 2018, as in force

on the commencement day, applies to an application for

registration made under that Division before the

commencement day that has not been determined by the

Disability Worker Registration Board of Victoria; and

• New section 290 provides that section 257, as in force

on the commencement day, applies to a disability

worker and a disability student registered before that

day.

When used in new Part 18, the term commencement day means

the day on which Division 1 of Part 4 of the Disability

Amendment Act 2022 comes into operation.

Division 2—Amendment of Residential Tenancies Act 1997

Subdivision 1—Residential tenancies

Clause 141 inserts and amends various definitions in section 3(1) of the

Residential Tenancies Act 1997.

Subclause (1) inserts the definition of DSOA client, which

replaces CoS supported accommodation client to capture a

broader class of persons and to account for changes to the name

of the Commonwealth Disability Support for Older Australians

program. The definition of SDA dwelling is also inserted as

defined in section 498BA.

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Subclause (1) also inserts a definition of specified entity or

program which means the Secretary to the Department of

Families, Fairness and Housing, the Transport Accident

Commission, Victorian WorkCover Authority, the NDIS, and the

Commonwealth Disability Support for Older Australians

program or a prescribed program. Transport Accident

Commission and Victorian WorkCover Authority are also

defined in relation to their establishing Acts.

Subclause (2) amends the definitions of SDA provider and SDA

resident so that the substantive definitions are provided for in

section 3(1). SDA provider means a person who is the owner or

leaseholder of an SDA dwelling if the premises are let under, or

are proposed to be let under an SDA residency agreement or

residential rental agreement, while SDA resident means a person

with a disability who receives, or is eligible to receive, funded

daily independent living support and who is residing, or proposes

to reside, in an SDA dwelling under an SDA residency agreement

or residential rental agreement.

Subclause (3) substitutes "2020" into the definition of SDA

enrolled dwelling, to refer to the most recent and in force

Commonwealth's National Disability Insurance Scheme

(Specialist Disability Accommodation) Rules.

Clause 142 inserts and amends definitions in section 498B of the Residential

Tenancies Act 1997, for the purposes of Part 12A of that Act,

addressing specialist disability accommodation.

Subclause (1) inserts a definition of SDA dwelling, which refers

to the meaning given by section 498BA. It also substitutes the

definition of support plan, which currently means an SDA

resident's plan that is in effect under section 37 of the National

Disability Insurance Scheme Act 2013 of the Commonwealth.

The substituted definition continues to mean an SDA resident's

plan that is in effect under section 37 of the National Disability

Insurance Scheme Act 2013 and to provide that it may also mean

an SDA resident's plan that is funded by a specified entity or

program. This is to reflect amendments being made throughout

the Bill to expand the application of protections in Part 12A of

the Residential Tenancies Act 1997.

Subclause (2) repeals the definitions of SDA resident (which is

now defined in section 3(1)—see clause 141), CoS Supported

accommodation client (which is now replaced by DSOA client),

70

SDA provider and Supported Independent Living provider

(as this term is no longer used).

Clause 143 inserts a new section 498BA into the Residential Tenancies

Act 1997, to define SDA dwelling. This term captures the

following dwellings—

• SDA enrolled dwellings (as currently defined); or

• any other permanent dwelling that provides long term

accommodation and where daily independent living

support is provided to one or more residents with a

disability funded by a specified entity or program and

may comprise of—

• an area or room exclusively occupied by an SDA

resident and common areas shared by other SDA

residents under an SDA residency agreement; or

• the dwelling as a whole occupied exclusively by

an SDA resident under an SDA residency

agreement; or

• the dwelling as a whole occupied under a

residential rental agreement by at least one SDA

resident and other occupants who may or may

not be SDA residents.

New section 498BA(2) provides that the following types of

accommodation are not SDA dwellings—

• premises that are not occupied under an SDA residency

agreement or a residential rental agreement;

• a premises occupied under a residential rental

agreement in relation to which the residential rental

provider and, if appropriate, the head renter of the

premises—

• do not receive funding from a specified entity or

program in relation to any disability support

provided at the premises; and

• have not entered into an agreement with a

specified entity or program in relation to any

disability support provided at the premises;

• a health or residential service;

71

• temporary crisis accommodation;

• a short-term accommodation dwelling or

accommodation that is used to provide respite or

transitional accommodation.

New section 498BA(3) provides for a definition of head renter

for the purposes of the section as a renter under the head

residential rental agreement who has granted another person

possession of the premises under a sub-residential rental

agreement.

Clause 144 inserts a new section 498DAA into the Residential Tenancies

Act 1997.

Subsection (1) states that this section applies to an SDA provider

if—

• immediately before the commencement day—

• a residential rental agreement is in force between

the SDA provider and an SDA resident in respect

of an SDA dwelling; and

• the SDA resident has not been given an

information statement under section 498D; and

• on or after the commencement day—

• the SDA resident has not been given a notice to

vacate under Division 9 of Part 2; or

• if the SDA resident has at any time been given a

notice to vacate under Division 9 of Part 2 of the

Residential Tenancies Act 1997, either—

• the SDA provider withdraws the notice

under section 91ZZQ of that Act; or

• the Tribunal determines that the notice to

vacate is not valid.

New section 498DAA(2) requires an SDA provider, within

6 months of the commencement day, to give the SDA resident an

information statement in the form approved by the Director under

section 498D of the Residential Tenancies Act 1997 and offer

the SDA resident the choice to enter into or establish an SDA

residency agreement with the SDA provider. Failure to comply

is an offence with a maximum penalty of 300 penalty units for a

72

natural person, or 750 penalty units for a body corporate

respectively.

A note is included under new section 498DAA(2) to remind

readers that section 498E of the Residential Tenancies Act 1997

imposes obligations on persons providing information to an SDA

resident under Part 12A of that Act to explain the contents of the

information to the SDA resident.

New section 498DAA(3) provides that if an SDA provider enters

into or establishes an SDA residency agreement with an SDA

resident in respect of an SDA dwelling that commences before

the term of a residential rental agreement between the SDA

provider and SDA resident in respect of that SDA dwelling ends,

that residential rental agreement is taken to terminate

immediately before the SDA residency agreement comes into

operation.

New section 498DAA(4) provides that for the purposes of

section 91B of the Residential Tenancies Act 1997, if a

residential rental agreement is taken to terminate under

subsection (3), it is taken to have been terminated in accordance

with Division 9 of Part 2 of that Act.

New section 498DAA(5) inserts a definition of commencement

day when used in new section 498DAA, being the day on which

section 144 of the Disability Amendment Act 2022 comes into

operation.

Clause 145 amends section 498T(2) of the Residential Tenancies Act 1997

to list a person employed and authorised by Transport Accident

Commission as an additional entity whose right of entry is

unaffected by Division 6 of Part 12A of that Act.

Clause 146 substitutes a reference in section 498ZV(6) of the Residential

Tenancies Act 1997 to "an SDA resident's Supported

Independent Living provider" with the words "the provider of the

SDA resident's daily independent living support", to remove

reference to the defined term being repealed by clause 142 and

broaden its application.

Clause 147 substitutes a reference in section 498ZX(9) of the Residential

Tenancies Act 1997 to "an SDA resident's Supported

Independent Living provider" with the words "the provider of the

SDA resident's daily independent living support", to remove

73

reference to the defined term being repealed by clause 142 and

broaden its application.

Clause 148 amends the definitions of former SDA provider and former SDA

resident in section 498ZZX of the Residential Tenancies

Act 1997 to increase the class of providers and residents to which

Division 12 of Part 12A of that Act rights and obligations apply.

The amended definition of former SDA provider defines it as an

SDA provider who, before the termination of an SDA residency

agreement, was the owner or leaseholder of an SDA dwelling.

This definition removes the requirement that the SDA provider

was registered under the NDIS to be a registered provider of

supports.

The amended definition of former SDA resident requires that,

before the termination of an SDA residency agreement, the

resident received funded daily independent living support in an

SDA dwelling, instead of funding under the NDIS to reside in an

SDA enrolled dwelling.

Clause 149 amends section 498ZZZPA of the Residential Tenancies

Act 1997 by omitting the word "enrolled" in the heading and in

the body of the section wherever occurring, so that a 6-month

prohibition on letting premises used for SDA enrolled dwellings

after a notice to vacate has been given applies to SDA dwellings

instead of only SDA enrolled dwellings. This is to reflect the

intention that the protections for SDA enrolled dwellings are now

extended to similar accommodation and support arrangements.

Clause 150 inserts a new Schedule 3 after Schedule 2 to the Residential

Tenancies Act 1997 to provide for transitional provisions in

relation to the commencement of the Disability Amendment

Act 2022 and the repeal of provisions relating to group homes

under the Disability Act 2006 and their transition to SDA

dwellings under the Residential Tenancies Act 1997.

New clause 1 sets out definitions of disability service provider,

group home and residential statement by reference to the

Disability Act 2006 for the purposes of Schedule 3.

New clause 2 provides for transitional matters as a consequence

of the repeal of Division 2 of Part 5 (Group homes) of the

Disability Act 2006 by clause 90 of the Bill. On and from the

commencement of clause 90 of the Bill, a group home will be

taken to be an SDA dwelling; and a group home resident will be

74

taken to be an SDA resident until the person enters into an SDA

residency agreement or residential rental agreement; and a

disability service provider operating a group home will be taken

to be an SDA provider (unless they are not the owner or

leaseholder of the group home, in which case the owner or

leaseholder is the SDA provider); and a residential statement

given to a resident of a group home by a disability service

provider before the commencement of clause 90 of the Bill is

taken on and from that commencement to be an SDA residency

agreement made in accordance with Division 3 of Part 12A of the

Residential Tenancies Act 1997. In relation to that residential

statement, the period specified under section 57(2)(a) of the

Disability Act 2006 will be taken to be the term of the SDA

residency agreement, the rent component of the residential charge

specified under section 57(2)(d) of the Disability Act 2006 will

be taken to be the rent for the purposes of section 498J(1)(b) of

the Residential Tenancies Act 1997 and the services component

of the residential charge specified under section 57(2)(d) of the

Disability Act 2006 will be taken to be the amount of utilities

charges in the SDA residency agreement.

New clause 3 imposes requirements on deemed SDA providers,

as deemed by new clause 2, in relation to the transition of group

home residents to SDA residents. New clause 2 provides that an

SDA provider must give an SDA resident an information

statement no later than 6 months after the commencement of

clause 90 of the Bill in an approved form in accordance with

section 498D(3) of the Residential Tenancies Act 1997, and

comply with section 498E of that Act to explain it. Failure to

comply is an offence with a maximum penalty of 300 penalty

units for a natural person, and 750 penalty units for a body

corporate. As soon as practicable after giving the SDA resident

the information statement, the SDA provider must make all

reasonable efforts to enter into an SDA residency agreement with

the SDA resident, or work with the SDA resident in accordance

with section 498G of the Residential Tenancies Act 1997 to

establish an SDA residency agreement, or enter into a residential

rental agreement in respect of the SDA dwelling. The SDA

provider must make all reasonable efforts to enter into such an

agreement before the end of the term of the SDA residency

agreement as determined under clause 2(5)(a).

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Subdivision 2—Notification of Public Advocate

Clause 151 amends section 498ZV of the Residential Tenancies Act 1997 in

relation to a notice of temporary relocation to omit the Public

Advocate in section 498ZV(4) so that the SDA provider is no

longer required to notify them of the details of a notice of

temporary relocation within 24 hours of the notice being given to

an SDA recipient. Notifying the Public Advocate will be

undertaken by the Director under new section 498ZV(5A) as

inserted by clause 230 of the Bill.

Clause 152 amends section 498ZX of the Residential Tenancies Act 1997 in

relation to a notice to vacate by an SDA provider to omit the

Public Advocate in section 498ZX(7) so that the SDA provider is

no longer required to notify them of the details of a notice to

vacate within 24 hours of the notice being given to an SDA

recipient. Notifying the Public Advocate will be undertaken by

the Director under new section 498ZX(8A) as inserted by

clause 231 of the Bill.

Clause 153 amends section 498ZZD of the Residential Tenancies Act 1997

in relation to a notice to vacate by a mortgagee in respect of an

SDA enrolled dwelling. This omits the Public Advocate in

section 498ZZD(3) so that the mortgagee is no longer required to

notify them of the details of a notice to vacate within 24 hours of

the notice being given to an SDA recipient. Notifying the Public

Advocate will be undertaken by the Director under new section

498ZZD(4A) as inserted by clause 232 of the Bill.

Subdivision 3—Consequential amendments

Clause 154 amends section 1(j) (purposes) of the Residential Tenancies

Act 1997 to use the new defined term of "SDA dwelling", rather

than "SDA enrolled dwelling", to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 155 amends various definitions in section 3(1) of the Residential

Tenancies Act 1997 to refer to SDA dwellings rather than SDA

enrolled dwellings to reflect the intention that the protections for

SDA enrolled dwellings are now extended to similar

accommodation and support arrangements, in the definitions of

fair wear and tear, health or residential service, notice of

76

intention to vacate, notice to vacate, rooming house and urgent

repairs.

Clause 156 amends the note at the foot of section 23 of the Residential

Tenancies Act 1997 to use the new defined term of "SDA

dwelling" to reflect the amendment made in the definition of

health or residential service by clause 155.

Clause 157 amends note 2 at the foot of section 26 of the Residential

Tenancies Act 1997 to use the new defined term of

"SDA dwelling" to reflect the amendments made to Part 12A by

the Bill.

Clause 158 amends the note at the foot of section 29 of the Residential

Tenancies Act 1997 to use the new defined term of

"SDA dwelling" to reflect the amendments made to Part 12A by

the Bill.

Clause 159 amends section 446(bc) of the Residential Tenancies Act 1997

to use the new defined term of "SDA dwelling" to reflect the

intention that the protections for SDA enrolled dwellings are now

extended to similar accommodation and support arrangements.

Clause 160 amends the heading to section 486B of the Residential

Tenancies Act 1997 to use the new defined term of

"SDA dwelling" to reflect the intention that the protections for

SDA enrolled dwellings are now extended to similar

accommodation and support arrangements.

Clause 161 amends section 486C of the Residential Tenancies Act 1997 to

use the new defined term of "SDA dwelling" to reflect the

intention that the protections for SDA enrolled dwellings are now

extended to similar accommodation and support arrangements.

Clause 162 amends definitions in section 498B of the Residential Tenancies

Act 1997 to use the new defined term of "SDA dwelling" as

inserted by clause 142 of the Bill in the definitions of rent and

SDA residency agreement, rather than "SDA enrolled dwelling".

Clause 163 amends section 498C of the Residential Tenancies Act 1997,

including its heading, to use the new defined term of

"SDA dwelling", rather than "SDA enrolled dwelling", to reflect

the intention that the protections for SDA enrolled dwellings are

now extended to similar accommodation and support

arrangements.

77

Clause 164 amends section 498D(2) and (3) of the Residential Tenancies

Act 1997 to use the new defined term of "SDA dwelling" to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 165 amends the definition of relevant person in section 498EA(6) of

the Residential Tenancies Act 1997 to use the new defined term

of "SDA dwelling" to reflect the intention that the protections for

SDA enrolled dwellings are now extended to similar

accommodation and support arrangements.

Clause 166 amends section 498F of the Residential Tenancies Act 1997,

including its heading, to make SDA residency agreements

applicable to the new broader term of SDA dwelling, rather than

SDA enrolled dwelling, to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 167 amends section 498H of the Residential Tenancies Act 1997 to

use the phrase "SDA dwelling", to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 168 amends section 498J of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 169 amends section 498LA of the Residential Tenancies Act 1997,

including its heading, to refer to SDA dwellings rather than SDA

enrolled dwellings, to reflect the intention that the protections for

SDA enrolled dwellings are now extended to similar

accommodation and support arrangements.

Clause 170 amends section 498LB of the Residential Tenancies Act 1997 to

substitute the phrase "SDA recipient" with the words

"SDA resident" to expand the cohort who is entitled to receive

information from an SDA provider before entering an SDA

residency agreement, and to refer to SDA dwellings rather than

SDA enrolled dwellings, to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

78

Clause 171 amends section 498LC(3) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 172 amends section 498M of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 173 amends section 498N of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 174 amends section 498Q of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 175 amends section 498S(1) of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 176 amends section 498T of the Residential Tenancies Act 1997 to

use the phrase "SDA dwelling", to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 177 amends section 498U of the Residential Tenancies Act 1997,

including its heading, to refer to SDA dwellings rather than SDA

enrolled dwellings, to reflect the intention that the protections for

SDA enrolled dwellings are now extended to similar

accommodation and support arrangements.

Clause 178 amends section 498V of the Residential Tenancies Act 1997,

including its heading, to refer to SDA dwellings rather than SDA

enrolled dwellings, to reflect the intention that the protections for

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SDA enrolled dwellings are now extended to similar

accommodation and support arrangements.

Clause 179 amends section 498W(b) of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 180 amends section 498X(2) of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 181 amends section 498Y of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 182 amends section 498Z of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 183 amends section 498ZE(5)(a) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 184 amends section 498ZI(2) of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 185 amends section 498ZL(4) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

80

Clause 186 amends section 498ZM and the example at the foot of section

498ZM(2) of the Residential Tenancies Act 1997 to refer to

SDA dwellings rather than SDA enrolled dwellings, to reflect the

intention that the protections for SDA enrolled dwellings are now

extended to similar accommodation and support arrangements.

Clause 187 amends section 498ZN of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 188 amends the definition of duty provision in section 498ZO of the

Residential Tenancies Act 1997 to refer to SDA dwellings

rather than SDA enrolled dwellings, to reflect the intention that

the protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 189 amends section 498ZP(2A) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 190 amends section 498ZR(2) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 191 amends section 498ZV of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 192 amends section 498ZW(1) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 193 amends section 498ZWA of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

81

dwellings are now extended to similar accommodation and

support arrangements.

Clause 194 amends section 498ZX of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 195 amends section 498ZY(2) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 196 amends section 498ZZA(2)(b) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 197 amends section 498ZZB(2) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 198 amends section 498ZZCA(1) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 199 amends section 498ZZD(1) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 200 amends section 498ZZE of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

82

Clause 201 amends section 498ZZF(1) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 202 amends section 498ZZH of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 203 amends section 498ZZHA(d) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 204 amends section 498ZZJ of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 205 amends section 498ZZL of the Residential Tenancies Act 1997,

including its heading, to refer to SDA dwellings rather than SDA

enrolled dwellings, to reflect the intention that the protections for

SDA enrolled dwellings are now extended to similar

accommodation and support arrangements.

Clause 206 amends section 498ZZM of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 207 amends section 498ZZN of the Residential Tenancies Act 1997,

including its heading, to refer to SDA dwellings rather than SDA

enrolled dwellings, to reflect the intention that the protections for

SDA enrolled dwellings are now extended to similar

accommodation and support arrangements.

Clause 208 amends section 498ZZR of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

83

dwellings are now extended to similar accommodation and

support arrangements.

Clause 209 amends section 498ZZU of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 210 amends section 498ZZV of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 211 amends section 498ZZW of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 212 amends definitions in section 498ZZX of the Residential

Tenancies Act 1997.

Subclause (1) repeals the definition of SDA enrolled dwelling

owner.

Subclause (2) inserts the definition of SDA dwelling owner,

which, in relation to an SDA dwelling in respect of which an

SDA residency agreement has been terminated, means the former

SDA provider and either the owner of the SDA dwelling or a

mortgagee who has secured a mortgage against the SDA

dwelling.

Subclause (3) amends the definition of stored goods in section

498ZZX of the Residential Tenancies Act 1997 to refer to SDA

dwellings rather than SDA enrolled dwellings.

Clause 213 amends section 498ZZY of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

84

Clause 214 amends section 498ZZZ(1) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 215 amends section 498ZZZA(2) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 216 amends section 498ZZZC of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 217 amends section 498ZZZD of the Residential Tenancies

Act 1997, including its heading, to refer to SDA dwellings rather

than SDA enrolled dwellings, to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 218 amends section 498ZZZF of the Residential Tenancies

Act 1997, including its heading, to refer to SDA dwellings rather

than SDA enrolled dwellings, to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 219 amends section 498ZZZG(3) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 220 amends section 498ZZZI(b) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 221 amends section 498ZZZJ of the Residential Tenancies Act 1997

to refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

85

dwellings are now extended to similar accommodation and

support arrangements.

Clause 222 amends section 498ZZZK of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 223 amends section 498ZZZL of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 224 amends section 498ZZZM of the Residential Tenancies

Act 1997, including its heading, to refer to SDA dwellings rather

than SDA enrolled dwellings, to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 225 amends section 498ZZZO of the Residential Tenancies

Act 1997, including its heading, to refer to SDA dwellings rather

than SDA enrolled dwellings, to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 226 amends section 498ZZZP of the Residential Tenancies

Act 1997, including its heading, to refer to SDA dwellings rather

than SDA enrolled dwellings, to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Clause 227 amends section 505C of the Residential Tenancies Act 1997 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Clause 228 amends section 506(3A)(b)(i) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

86

Clause 229 amends section 511(1)(hb) of the Residential Tenancies

Act 1997 to refer to SDA dwellings rather than SDA enrolled

dwellings. It also inserts additional items with respect to which

the Governor in Council may make regulations, namely,

prescribing programs for the purposes of the definitions of DSOA

client and specified entity or program in section 3(1).

Subdivision 4—Notification of Director

Clause 230 substitutes section 498ZV(5) of the Residential Tenancies

Act 1997 and inserts new sections 498ZV(5A), 498ZV(5B) in the

Residential Tenancies Act 1997.

New section 498ZV(5) requires the SDA provider to notify the

Director of the details of a notice of temporary relocation within

24 hours after the notice has been given to an SDA resident who

is not an SDA recipient. This removes the obligation to notify

the Public Advocate, and broadens the class of relevant

recipients; currently, the provision relates to notices given to a

CoS supported accommodation client. Failure to comply is an

offence with a maximum penalty of 60 penalty units.

New section 498ZV(5A) requires the Director to provide details

of the notice of temporary relocation to the Public Advocate.

This shifts the onus of notifying the Public Advocate from SDA

providers to the Director.

New section 498ZV(5B) requires the Director to provide details

of the notice of the temporary relocation to the Transport

Accident Commission or the Victorian WorkCover Authority, if

the SDA resident is a person whose daily independent living

support is funded by the Transport Accident Commission or the

Victorian WorkCover Authority.

Clause 231 substitutes section 498ZX(8) and inserts new sections

498ZX(8A) and 498ZX(8B) in the Residential Tenancies

Act 1997.

New section 498ZX(8) requires the SDA provider to notify the

Director of the details of a notice to vacate within 24 hours after

the notice has been given to an SDA resident who is not an SDA

recipient. This removes the obligation to notify the Public

Advocate, and broadens the class of relevant recipients;

currently, the provision relates to notices given to a CoS

87

supported accommodation client. Failure to comply is an offence

with a maximum penalty of 60 penalty units.

New section 498ZX(8A) requires the Director to provide details

of the notice to vacate to the Public Advocate. This shifts the

onus of notifying the Public Advocate from SDA providers to the

Director.

New section 498ZX(8B) requires the Director to provide the

details of the notice to vacate to the Transport Accident

Commission or the Victorian WorkCover Authority (as the case

requires) if the SDA resident is a person whose daily independent

living support is funded by the Transport Accident Commission

or the Victorian WorkCover Authority.

Clause 232 substitutes section 498ZZD(4) and inserts new sections

498ZZD(4A) and 498ZZD(4B) in the Residential Tenancies

Act 1997.

New section 498ZZD(4) requires the mortgagee to notify the

Director of the details of a notice to vacate within 24 hours after

the notice has been given to an SDA resident who is not an SDA

recipient. This removes the obligation to notify the Public

Advocate, and broadens the class of relevant recipients;

currently, the provision relates to notices given to a CoS

supported accommodation client. Failure to comply is an offence

with a maximum penalty of 60 penalty units.

New section 498ZZD(4A) requires the Director to provide details

of the notice to vacate to the Public Advocate. This shifts the

onus of notifying the Public Advocate from mortgagees to the

Director.

New section 498ZZD(4B) requires the Director to provide the

details of the notice to vacate to the Transport Accident

Commission or the Victorian WorkCover Authority (as the case

requires) if the SDA resident is a person whose daily independent

living support is funded by the Transport Accident Commission

or the Victorian WorkCover Authority.

88

Part 5—Amendment of other Acts

Division 1—Amendment of Crimes Act 1958

Clause 233 amends the definition of residential service in section 52A of the

Crimes Act 1958 to include accommodation approved for

supervised treatment under section 187 of the Disability

Act 2006.

Division 2—Amendment of Guardianship and Administration

Act 2019

Clause 234 amends section 17(7) of the Guardianship and Administration

Act 2019. Clause 234 amends the definition of institution in

section 17(7) of the Guardianship and Administration

Act 2019 to include accommodation approved for supervised

treatment under section 187 of the Disability Act 2006.

Division 3—Amendment of Independent Broad-based

Anti-corruption Commission Act 2011

Clause 235 amends section 3(1) of the Independent Broad-based

Anti-corruption Commission Act 2011 to insert a paragraph

referring to accommodation approved for supervised treatment

under section 187 of the Disability Act 2006 in the definition of

detained person.

Division 4—Amendment of Medical Treatment Planning and

Decisions Act 2016

Clause 236 amends the definition of health facility in section 3(1) of the

Medical Treatment Planning and Decisions Act 2016 to insert

a new paragraph (cb) which refers to accommodation approved

for supervised treatment under section 187 of the Disability

Act 2006.

Division 5—Amendment of Residential Tenancies Act 1997

Clause 237 inserts an additional paragraph to the definition of health or

residential service to section 3(1) of the Residential Tenancies

Act 1997 so that accommodation approved for supervised

treatment under section 187 of the Disability Amendment

Act 2006 is also included within the definition.

89

Division 6—Amendment of Social Services Regulation Act 2021

Clause 238 amends the definition of supported residential service in section

214(1) of the Social Services Regulation Act 2021 to include

accommodation approved for supervised treatment under

section 187 of the Disability Act 2006

Clause 239 amends section 294(2)(zp) of the Social Services Regulation

Act 2021 by substituting “240(1)” for "239(1)" to amend a

referencing error, so that section 294(2) correctly refers to the

offence of requesting certain payments in section 240(1); there is

no offence in section 239(1) of the Social Services Regulation

Act 2021.

Clause 240 repeals section 353(4) of the Social Services Regulation

Act 2021. Section 354(3) repeals the definitions of register of

disability service providers and support plan in the Disability

Act 2006, which will already be repealed by the Disability

Amendment Act 2022. This subsection is therefore redundant

and unnecessary.

Clause 241 inserts new section 354A of the Social Services Regulation

Act 2021, which provides for the insertion of a new

paragraph (da) to section 33 of the Disability Act 2006 to include

the Social Services Regulator as a person the Community

Visitors Board can refer a matter reported by a community visitor

to where appropriate. This is to reflect the new responsibilities of

the Social Services Regulator upon commencement of the Social

Services Regulation Act 2021.

Clause 242 repeals section 359 of the Social Services Regulation Act 2021.

Section 359 of that Act amends section 60(2)(f) of the Disability

Act 2006, which is being amended by the Bill. Section 359 of

the Social Services Regulation Act 2021 is therefore redundant

and unnecessary.

Clause 243 inserts new sections 367A and 367B of the Social Services

Regulation Act 2021 to make amendments to sections 132ZL

and 141 of the Disability Act 2006. The amendments will

replace references to the Secretary with references to the Social

Services Regulator, to reflect the transfer of responsibilities from

the Secretary to the Social Services Regulator.

90

Under the amended section 132ZL, the Senior Practitioner will

be required to give written notice to the Social Services

Regulator, not the Secretary, if they refuse to approve, or revoke

the appointment, of an Authorised Program Officer.

Under the amended section 141(c)(i), the Public Advocate will be

permitted to disclose information about the use or proposed use

of a regulated restrictive practice to the Social Services

Regulator, instead of the Secretary.

Division 7—Amendment of Supported Residential Services

(Private Proprietors) Act 2010

Clause 244 amends section 5(1) of the Supported Residential Services

(Private Proprietors) Act 2010 to include accommodation

approved for supervised treatment under section 187 of the

Disability Act 2006.

Division 8—Amendment of Victorian Inspectorate Act 2011

Clause 245 amends the definition of detained person in section 3(1) of the

Victorian Inspectorate Act 2011 to include a person approved

for supervised treatment under section 187 of the Disability

Act 2006 in that definition.

Part 6—Further Amendment of other Acts

Division 1—Residential tenancies

Clause 246 amends the definition of supported accommodation in section

99AAA(1) of the Accident Compensation Act 1985 to refer to

SDA dwellings rather than SDA enrolled dwellings, to reflect the

intention that the protections for SDA enrolled dwellings are now

extended to similar accommodation and support arrangements.

Clause 247 amends the definition of residential service in section 52A of the

Crimes Act 1958 to substitute SDA dwellings rather than SDA

enrolled dwellings, to reflect the intention that the protections for

SDA enrolled dwellings are now extended to similar

accommodation and support arrangements and to insert a new

paragraph (ac) into that definition that refers to short term

accommodation dwelling within the meaning of the Disability

Act 2006.

91

Clause 248 amends the note at the foot of the definition of school boarding

premises in section 1.1.3(1) of the Education and Training

Reform Act 2006 to substitute a reference for "NDIS dwelling"

with "SDA dwelling" to reflect the changes being introduced by

this Bill and to add a reference to short term accommodation

dwelling within the meaning of the Disability Act 2006.

Clause 249 amends the definition of institution in section 17(7) of the

Guardianship and Administration Act 2019.

Subclause (a) substitutes references to "short-term

accommodation and assistance dwelling" with "short-term

accommodation dwelling" to reflect industry terminology.

Subclause (b) substitutes SDA dwellings rather than SDA

enrolled dwellings in the definition of institution, to reflect the

intention that the protections for SDA enrolled dwellings are now

extended to similar accommodation and support arrangements.

Clause 250 amends the definition of detained person in s 3(1) of the

Independent Broad-based Anti-corruption Commission

Act 2011 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Clause 251 amends the Land Tax Act 2005 as a result of the new term

"SDA dwelling" being introduced by the Bill.

Subclause (1) substitutes the definition of SDA enrolled dwelling

in section 3(1) to refer to SDA dwelling instead.

Subclause (2) amends section 56(1A)(b)(iia) of the Land Tax

Act 2005 to refer to SDA dwellings rather than SDA enrolled

dwellings, to reflect the intention that the protections for SDA

enrolled dwellings are now extended to similar accommodation

and support arrangements.

Subclause (3) amends section 76A of the Land Tax Act 2005 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

dwellings are now extended to similar accommodation and

support arrangements.

Subclause (4) amends section 78A of the Land Tax Act 2005 to

refer to SDA dwellings rather than SDA enrolled dwellings, to

reflect the intention that the protections for SDA enrolled

92

dwellings are now extended to similar accommodation and

support arrangements.

Clause 252 amends the definition of health facility in section 3(1) of the

Medical Treatment Planning and Decisions Act 2016 to refer

to a short term accommodation dwelling within the meaning of

the Disability Act 2006, and SDA dwellings rather than SDA

enrolled dwellings, to reflect the intention that the protections for

SDA enrolled dwellings are now extended to similar

accommodation and support arrangements.

Clause 253 amends the Social Services Regulation Act 2021.

Subclause (1) repeals section 360 of the Social Service

Regulation Act 2021. This is because section 360 of the Social

Service Regulation Act 2021 repeals section 74(10) of the

Disability Act 2006. Section 74(10) of the Disability Act 2006

is being amended by the Bill thereby making section 360 of the

Social Service Regulation Act 2021 redundant and unnecessary.

Subclause (2) amends section 369(1) of the Social Services

Regulation Act 2021 to make a technical amendment to that Act

to ensure an amendment made by that Act to the Disability

Act 2006 is effective.

Clause 254 amends the definition of supported accommodation in

section 3(1) of the Transport Accident Act 1986 to refer to

SDA dwellings rather than SDA enrolled dwellings, to reflect the

intention that the protections for SDA enrolled dwellings are now

extended to similar accommodation and support arrangements.

Clause 255 amends Schedule 2 to the Victorian Civil and Administrative

Tribunal Act 1998 to omit the phrase "Form and content of a

warrant of possession under section 85B of the Disability

Act 2006". This is because section 85B of the Disability

Act 2006 will be repealed by the Bill.

Clause 256 amends section 3(1) of the Victorian Inspectorate Act 2011 to

refer to SDA dwellings rather than SDA enrolled dwellings in the

definition for detained person, to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

93

Clause 257 amends the definition of supported accommodation in section

223(1)(c) of the Workplace Injury Rehabilitation and

Compensation Act 2013 to refer to SDA dwellings rather than

SDA enrolled dwellings, to reflect the intention that the

protections for SDA enrolled dwellings are now extended to

similar accommodation and support arrangements.

Division 2—Information sharing

Clause 258 substitutes the reference in item 4 of Schedule 7 to the Child

Wellbeing and Safety Act 2005 to section 39 of the Disability

Act 2006 to sections 202AB and 202AC of the Disability

Act 2006. This is because sections 39(2)–(9), which relate to the

use, transfer and disclosure of certain information, are being

repealed by this Bill, and the relevant subject matter will instead

be provided for in new sections 202AB and 202AC.

Clause 259 amends the Social Services Regulation Act 2021.

Subclause (1) substitutes references in section 207(2)(d) of the

Social Services Regulation Act 2021 to sections 39, 39A and

132ZC of the Disability Act 2006 to sections 132ZC, 202AB,

202AC and 202AD of the Disability Act 2006. This is because

sections 39(2)–(9) and 39A, which relate to the use, transfer and

disclosure of certain information and to the disclosure of worker

screening information respectively, are being repealed by the

Bill, and the relevant subject matter will instead be provided for

in new sections 202AB, 202AC and 202AD.

Subclause (2) substitutes a new section 355 and inserts a new

section 355A to the Social Services Regulation Act 2021.

New section 355 inserts the Social Services Regulator in section

202AB(4) of the Disability Act 2006, so that the Social Services

Regulator may receive protected information from a relevant

person. This is to reflect the new responsibilities of the Social

Services Regulator upon commencement of the Social Services

Regulation Act 2021.

New section 355A amends the type of information which any

person or body is authorised to use, transfer or disclose under

section 202AC. Prior to the commencement of section 355 of the

Social Services Regulation Act 2021, any person or body is

authorised to use, transfer or disclose information about

compliance by current and former disability service providers

94

with the relevant standards determined by the Minister under

section 97 for the purposes of section 202AC. On

commencement of section 355A, the information will be

restricted to information about compliance with the relevant

standards determined under section 97 as in force immediately

before the commencement of Part 4 of the Social Services

Regulation Act 2021.

Subclause (3) substitutes the reference in section 356 of the

Social Services Regulation Act 2021 from section 39A(1)(b) of

the Disability Act 2006 to section 202AD(1)(b) of the Disability

Act 2006. This is because section 39A is being repealed by the

Bill, and the relevant subject matter will instead be provided for

in section new section 202AD.

Division 3—Residential treatment facilities

Clause 260 inserts a new section 360A of the Social Services Regulation

Act 2021 which repeals Division 1 of Part 6 of the Disability

Act 2006. Division 1 of Part 6 of the Disability Act 2006

contains one provision—section 89 relating to the obligation of

the disability service provider to provide information on its

services to the person with a disability. This obligation is

proposed to be included in the regulations to be made under the

Social Services Regulation Act 2021 upon the commencement

of that Act.

Division 4—Worker Screening Act 2020

Clause 261 inserts a new subsection (1A) after section 141(1) of the Worker

Screening Act 2020 to permit the Secretary to make a disclosure

under section 141(1) of matters relating to screening checks and

clearances, either on request by a relevant entity or on the

Secretary's own initiative.

Part 7—Repeal of this Act

Clause 262 provides for the automatic repeal of the Act (the Bill) on

30 September 2024. The repeal of the Act does not affect in any

way the continuing operation of the amendments made by the

Act (see section 15(1) of the Interpretation Legislation

Act 1984).