Disability Rights, Inclusion and Safeguarding Act 2024

Disability Rights, Inclusion and Safeguarding Act 2024

An Act to advance and safeguard the human rights of people with disability and to advance the full and effective inclusion of people with disability in the Tasmanian community

Be it enacted by Her Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Disability Rights, Inclusion and Safeguarding Act 2024 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Objects of Act

The objects of this Act are to advance and safeguard the rights of all people with disability and to advance the full and effective inclusion of all people with disability, including by –

(a) recognising the responsibility of the State and the community to support people with disability in exercising their human rights; and

(b) supporting and effecting –

(i) the human rights of people with disability under international treaties including, but not limited to, the United Nations Convention on the Rights of Persons with Disabilities; and

(ii) Australia’s Disability Strategy; and

(c) establishing a framework for a whole-of-government approach to accountability and transparency in relation to disability inclusion; and

(d) regulating the use of restrictive practices by disability services providers; and

(e) establishing the positions of Disability Commissioner and Senior Practitioner; and

(f) establishing the Disability Inclusion Advisory Council; and

(g) providing for a community visitor scheme; and

(h) enabling the provision of funding to support the above objects.

4.   Act binds Crown

This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities.

5.   Interpretation

In this Act, unless the contrary intention appears –

accessible format means a format that presents a document or other communication in a manner that enables the document or communication to be accessible by people with disability;

appointed program officer, for a disability services provider, means a person whose appointment as an appointed program officer for that provider is approved by the Senior Practitioner under section 62 ;

Australia’s Disability Strategy means the document, Australia’s Disability Strategy 2021-2031, published by the Commonwealth of Australia (Department of Social Services) in 2021, as amended from time to time;

authorised officer means a person authorised to enter premises under section 70 ;

behaviour support plan means a plan prepared in consultation with a person with disability that specifies the evidence-informed strategies to be used in supporting the person's behaviour, including proactive strategies to build on the person's strengths and increase their life skills;

behaviour support practitioner means a person who is an NDIS behaviour support practitioner within the meaning of the NDIS Rules;

carer has the same meaning as in the Carer Recognition Act 2023 ;

Commissioner means a person appointed as the Disability Commissioner under section 27 ;

community visitor means a person appointed as a community visitor under the regulations;

defined entity – see section 6 ;

disability, in relation to a person, includes long-term physical, mental, cognitive, intellectual or sensory impairments which in interaction with various barriers may hinder the person’s full and effective participation in society on an equal basis with others;

disability inclusion means actions taken to achieve equity between persons with disability and other members of the Tasmanian community;

disability inclusion action plan, in respect of an entity, means the disability inclusion action plan for that entity prepared under section 12 ;

Disability Inclusion Advisory Council means the Disability Inclusion Advisory Council established by section 23 ;

disability service means a service specifically for the support of people with disability including, but not limited to, supports and services provided to a person with disability under the NDIS;

disability services provider – see section 7 ;

disability support grant means a grant of financial assistance under section 69 ;

employee, in relation to a disability services provider, means –

(a) an employee or agent of the provider; or

(b) a person providing services voluntarily on behalf of the provider;

exempt information means information of a kind prescribed to be exempt information;

governing body, in relation to a defined entity, means a board of directors, board of trustees, committee of management, council or other governing authority of the defined entity;

grant recipient means –

(a) a person or organisation that is receiving a disability support grant; or

(b) a participant, within the meaning of the NDIS Act, who receives funds under the NDIS Act, however managed;

human rights includes, but is not limited to, rights and freedoms under –

(a) the United Nations Convention on the Rights of Persons with Disabilities; and

(b) the International Covenant on Civil and Political Rights, Australian Treaty Series 1980 No. 23; and

(c) the International Covenant on Economic, Social and Cultural Rights, Australian Treaty Series 1976 No. 5; and

(d) the United Nations Convention on the Rights of the Child, Australian Treaty Series 1991 No. 4; and

(e) the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Australian Treaty Series 1989 No. 21;

independent person means a person –

(a) who volunteers to assist a person with disability to understand –

(i) the use of restrictive practices on the person with disability; and

(ii) the rights of the person with disability regarding the review of decisions in relation to the imposition of restrictive practices; and

(b) who is appointed as an independent person for that person under section 66 ;

intersectionality means the multi-layered experiences of people with disability in relation to the personal attributes of a person or group of persons that create interconnected and interdependent systems of disadvantage or discrimination;

NDIS means the National Disability Insurance Scheme within the meaning of the NDIS Act;

NDIS Act means the National Disability Insurance Scheme Act 2013 of the Commonwealth;

NDIS Commissioner means the Commissioner of the NDIS Quality and Safeguards Commission referred to in section 181C of the NDIS Act;

NDIS provider has the same meaning as in the NDIS Act and includes registered NDIS providers, within the meaning of that Act, and NDIS providers that are not registered;

NDIS Quality and Safeguards Commission means the NDIS Quality and Safeguards Commission established by section 181A of the NDIS Act;

NDIS Rules means –

(a) the National Disability Insurance Scheme (Restrictive Practices and Behaviour Support) Rules 2018 of the Commonwealth, as in force from time to time, under the NDIS Act; or

(b) if the rules referred to in paragraph (a) are revoked or replaced by rules made under the NDIS Act dealing with restrictive practices, those rules, as in force from time to time;

personal attribute means an attribute specified in section 16 of the Anti-Discrimination Act 1998 ;

person-centred means services and supports that are centred on an individual and their strengths, needs, interests and goals;

principles – see section 8 ;

private grant recipient means a person who is receiving a disability support grant under section 69(3)(a) ;

progress report means a report prepared by a defined entity under section 14(1) ;

regulations means the regulations made under this Act;

restrictive practice means a practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability that is –

(a) a regulated restrictive practice within the meaning of the NDIS Rules; or

(b) a practice or intervention determined by the Senior Practitioner under section 45 to be a restrictive practice;

Secretary means the Secretary of the Department;

Senior Practitioner means the Senior Practitioner appointed under section 43 ;

Tasmanian Disability Inclusion Plan means the Tasmanian Disability Inclusion Plan prepared under section 9 , as in force from time to time;

trauma-informed approach means an approach that acknowledges the possibility of trauma for any person and that recognises the signs and symptoms of trauma, enables pathways for recovery and actively seeks to avoid re-traumatisation;

Tribunal means the Tasmanian Civil and Administrative Tribunal established by the Tasmanian Civil and Administrative Tribunal Act 2020 ;

United Nations Convention on the Rights of Persons with Disabilities means the United Nations Convention on the Rights of Persons with Disabilities, done at New York on 13 December 2006, as in force for Australia;

universal design means the design of a building, facility, product or environment so that it is accessible to all members of the Tasmanian community to the greatest extent possible without the need for adaptation or specialised design;

universal service means a service or support provided to the Tasmanian community by a defined entity, other than a service or support that is funded or provided under the NDIS.

6.   Meaning of defined entity

(1)  For the purposes of this Act, an entity is a defined entity if that entity is –

(a) an Agency, within the meaning of the State Service Act 2000 ; or

(b) an agent or instrumentality of the Crown, if that agent or instrumentality administers funding or services to the disability sector; or

(c) a Government Business Enterprise, within the meaning of the Government Business Enterprises Act 1995 ; or

(d) any other person or body, or class of persons or bodies, prescribed as a defined entity.

(2)  For the purposes of this Act, defined entity does not include a person or body, or class of persons or bodies, prescribed as being excluded from the definition of defined entity.

7.   Meaning of disability services provider

(1)  For the purposes of this Act, disability services provider means –

(a) a person or organisation that receives funding under the NDIS or this Act to provide a service specifically for the support of people with disability; or

(b) a person or body, or class of persons or bodies, prescribed as a disability services provider.

(2)  For the purposes of this Act, disability services provider does not include the following:

(a) a person with disability who is in receipt of a disability support grant for the purpose of obtaining care, support or assistance;

(b) a relative or friend of a person with disability who provides disability supports to that person;

(c) a person or body, or class of persons or bodies, prescribed as being excluded from the definition of disability services provider.

8.   Principles

(1)  The following principles, which reflect the United Nations Convention on the Rights of Persons with Disabilities, are to be observed in the operation, administration and enforcement of this Act:

(a) people with disability have the same right as other members of Australian society to realise their potential for physical, social, emotional and intellectual development;

(b) people with disability have the right to participate in, and contribute to, social and economic life on an equal basis with others, and have the right to be supported to enjoy this right;

(c) people with disability and their families and carers have the right to certainty that people with disability will receive the care and support that they need over their lifetime;

(d) people with disability have the right to be supported to exercise choice, including in relation to taking reasonable risks, in the pursuit of their goals and the planning and delivery of their supports;

(e) people with disability have the same right as other members of Australian society to be respected for their worth and dignity and to live free from violence, abuse, neglect, coercion and exploitation;

(f) people with disability have the same right as other members of Australian society to pursue any grievance;

(g) people with disability have the same right as other members of Australian society to be able to make their own decisions, including the right to exercise choice and control in decisions that affect their lives, to the full extent of their capacity;

(h) people with disability have the right to be supported in all their dealings and communications so that their capacity to exercise choice and control is maximised in a way that is appropriate to their circumstances and cultural needs;

(i) people with disability who require support in decision-making are to be provided with access to the support necessary to enable those persons –

(i) to participate in those decisions; and

(ii) to express their will and preferences in relation to those decisions; and

(iii) to develop their decision-making ability;

(j) people with disability have the right to receive innovative, high-quality, best-practice, contemporary and effective supports that are person-centred and trauma-informed;

(k) people with disability have the right to have their privacy and dignity respected;

(l) the role of families, carers and other significant persons in the lives of people with disability is to be acknowledged and respected;

(m) people with disability have the right to access disability advocacy which plays an essential role in fostering the full and equal enjoyment of human rights, enabling community participation and the inclusion of people with disability by ensuring that their rights are maintained, promoted and valued;

(n) the voices of people with disability are central to the development of practical, effective and targeted services and programs;

(o) the voices of families, friends and carers of people with disability are to be considered in the development of practical, effective and targeted services and programs;

(p) consultation with people with disability should be –

(i) designed and delivered in collaboration with people with disability; and

(ii) adaptable to provide for the range of different ways that people with disability may use to participate;

(q) positive personal and social development of people with disability, including children and young people, is to be promoted.

(2)  In addition to any other principles set out in this section, if this Act requires or permits an act or thing to be done by or in relation to a person with disability by another person, the act or thing is to be done, so far as is practicable, in accordance with the following principles:

(a) people with disability have the right to make their own decisions and to access support to enable them to make decisions;

(b) people with disability are to be encouraged to engage in the life of the community;

(c) people with disability have the right to have their own individual freedom of expression, self-determination and decision-making respected;

(d) the intersectionality of an individual’s circumstances are to be considered in the development of practical, effective and targeted services and programs;

(e) the supportive relationships, friendships and connections, with others, of people with disability are to be recognised;

(f) restrictive practices should only be used in very limited and specific circumstances as a last resort and utilising the least restrictive practice and for the shortest period of time possible in the circumstances;

(g) restrictive practices should only be used where they are proportionate and justified in order to protect the rights or safety of the person with disability or others.

(3)  In addition to any other principles set out in this section, if this Act requires or permits an act or thing to be done by or in relation to a child with disability by another person, the act or thing is to be done, so far as is practicable, in accordance with the following principles:

(a) the evolving capacities of the child are to be respected;

(b) the right of the child to preserve the child’s identity is to be respected;

(c) the wishes of the child, however expressed, are to be taken into account;

(d) the child is to be provided with disability and age-appropriate support in decision-making;

(e) regard is to be had, and appropriate weight given to, the views of the child;

(f) the best interests of the child are paramount, and full consideration must be given to the need to –

(i) protect the child from harm; and

(ii) promote the child’s development; and

(iii) strengthen, preserve and promote positive relationships between the child and the child’s parents, family members and other people who are significant in the life of the child.

(4)  Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles set out in this section.

PART 2 - Disability Inclusion Planning

Division 1 - Tasmanian Disability Inclusion Plan

9.   Requirement for Tasmanian Disability Inclusion Plan

(1)  The Minister must ensure that a Tasmanian Disability Inclusion Plan is prepared –

(a) within 12 months of the commencement of this Act; and

(b) on a 4-yearly basis thereafter.

(2)  A Tasmanian Disability Inclusion Plan must –

(a) set out whole-of-government policies and measures for achieving the objects of this Act and advancing the principles; and

(b) provide for collaboration and coordination among defined entities and other entities in the provision of universal services to people with disability.

(3)  In preparing a Tasmanian Disability Inclusion Plan, the Minister –

(a) must have regard to the objects of this Act and the principles; and

(b) must consider the varied needs and experiences of people with disability and the strategies that may be required in response to those needs and experiences; and

(c) must consult with, in accordance with any prescribed requirements –

(i) the Disability Inclusion Advisory Council; and

(ii) the Commissioner; and

(iii) people with disability; and

(iv) disability advocacy organisations, disability peak bodies and disability representative organisations; and

(v) defined entities; and

(vi) the public; and

(d) may consult with any other person or body that the Minister considers appropriate.

(4)  The Minister must cause a copy of a Tasmanian Disability Inclusion Plan to be published on a website operated by, or on behalf of, the Department –

(a) as soon as reasonably practicable after it is prepared; and

(b) in accessible formats.

(5)  The Minister is to cause a copy of a Tasmanian Disability Inclusion Plan to be tabled in each House of Parliament within 10 sitting-days of that House after the publication of that plan under subsection (4) .

10.   Amendment of Tasmanian Disability Inclusion Plan

(1)  The Minister may, at any time –

(a) amend a Tasmanian Disability Inclusion Plan; or

(b) revoke and substitute a Tasmanian Disability Inclusion Plan.

(2)  Section 9(2) , (3) , (4) and (5) apply, with any necessary modification, to the amendment or revocation and substitution of a Tasmanian Disability Inclusion Plan in the same way as they apply to the preparation of a Tasmanian Disability Inclusion Plan.

11.   Tasmanian Disability Inclusion Plan Progress Report

(1)  The Minister must prepare and publish a Tasmanian Disability Inclusion Plan Progress Report –

(a) within 12 months after the publication of a Tasmanian Disability Inclusion Plan; and

(b) on a yearly basis thereafter.

(2)  A Tasmanian Disability Inclusion Plan Progress Report under subsection (1) must include an assessment of progress in the previous 12 months in relation to the implementation of the Tasmanian Disability Inclusion Plan.

(3)  For the purposes of subsection (1) , the Minister must cause a copy of a Tasmanian Disability Inclusion Plan Progress Report to be published on a website operated by, or on behalf of, the Department –

(a) as soon as reasonably practicable after it is prepared; and

(b) in accessible formats.

(4)  The Minister is to cause a copy of a Tasmanian Disability Inclusion Plan Progress Report to be tabled in each House of Parliament within 10 sitting-days of that House after publication of the report under this section.

Division 2 - Disability inclusion action plans for defined entities

12.   Requirement for disability inclusion action plan

(1)  A defined entity must ensure that a disability inclusion action plan is prepared for that entity –

(a) within 6 months after the publication of the initial Tasmanian Disability Inclusion Plan prepared under section 9(1)(a); and

(b) on a 4-yearly basis thereafter.

(2)  The purpose of a disability inclusion action plan is to support the implementation of the Tasmanian Disability Inclusion Plan by –

(a) promoting the inclusion and participation of people with disability in the community; and

(b) reducing, removing and preventing barriers to people with disability in accessing universal services; and

(c) reducing, removing and preventing barriers to people with disability obtaining and maintaining employment; and

(d) realising meaningful change in attitudes and practices that discriminate against people with disability; and

(e) coordinating and integrating universal services with services and supports that are funded or provided under the NDIS.

(3)  A disability inclusion action plan for a defined entity must include –

(a) strategies and measures for the defined entity to promote disability inclusion; and

(b) actions to be taken and outcomes to be measured by the defined entity to advance disability inclusion.

(4)  In preparing a disability inclusion action plan, a defined entity must have regard to the following matters:

(a) the objects of this Act;

(b) the principles;

(c) the priorities, outcomes and measures in the current Tasmanian Disability Inclusion Plan;

(d) any guidelines issued under section 30 ;

(e) any prescribed matters.

(5)  In preparing a disability inclusion action plan, a defined entity –

(a) must consult with –

(i) people with disability; or

(ii) the Disability Inclusion Advisory Council; or

(iii) disability advocacy organisations, disability peak bodies and disability representative organisations; and

(b) may consult with any other persons whom the entity considers relevant.

(6)  Within a reasonable time after preparing a disability inclusion action plan, a defined entity must –

(a) cause the disability inclusion action plan to be published on a website operated by, or on behalf of, the defined entity in accessible formats; and

(b) submit a copy of the disability inclusion action plan to the Commissioner.

13.   Amendment of disability inclusion action plan

(1)  A defined entity may amend its disability inclusion action plan at any time if it considers that the amendment is necessary.

(2)  Section 12(2) , (3) , (4) and (5) apply, with any necessary modification, to the amendment of a disability inclusion action plan in the same way as they apply to the preparation of a disability inclusion action plan.

(3)  Within a reasonable time after amending a disability inclusion action plan, a defined entity must –

(a) cause the amended disability inclusion action plan to be published on a website operated by, or on behalf of, the defined entity in accessible formats; and

(b) submit a copy of the amended disability inclusion action plan to the Commissioner.

14.   Review of disability inclusion action plan

(1)  A defined entity must prepare a progress report on the implementation of the defined entity’s disability inclusion action plan –

(a) within 12 months after the publication of a disability inclusion action plan under section 12(6)(a) ; and

(b) on a yearly basis thereafter.

(2)  A progress report under subsection (1) must include an assessment of progress in the previous 12 months in relation to the implementation of the disability inclusion action plan.

(3)  Within a reasonable time after preparing a progress report under subsection (1) , a defined entity must –

(a) cause the progress report to be published on a website operated by, or on behalf of, the defined entity in accessible formats; and

(b) submit a copy of the progress report to the Commissioner.

15.   Register of disability inclusion action plans

(1)  The Commissioner is to maintain a register of –

(a) all disability inclusion action plans submitted to the Commissioner; and

(b) all progress reports submitted to the Commissioner.

(2)  The register may be kept in such form, including electronic form, as the Commissioner considers appropriate.

16.   Disability Action Evaluation Report

(1)  The Commissioner must submit to the Minister, by 1 November in each year, an annual report evaluating the progress of defined entities in advancing disability inclusion during the previous financial year as set out in –

(a) the disability inclusion action plans of defined entities; and

(b) the progress reports of defined entities.

(2)  The Commissioner must cause the annual report submitted under subsection (1) to be published on a website operated by, or on behalf of, the Commissioner in accessible formats.

Division 3 - Disability consultation

17.   Consultation by defined entities

(1)  A defined entity is to consult with people with disability when developing or reviewing any policy of, or program or service provided by, the entity that has a direct and significant impact on the public.

(2)  In consulting with people with disability in relation to a policy, program or service, the defined entity is to consider the following:

(a) the effects that the policy, program or service may have on people with disability;

(b) how the policy, program or service may be developed or varied in order to –

(i) ensure accessibility; and

(ii) promote universal design; and

(iii) reduce, remove and prevent barriers to disability inclusion; and

(iv) promote disability inclusion;

(c) any barriers to disability inclusion that may be compounded by intersectionality;

(d) the principles.

(3)  In consulting with people with disability in relation to a policy, program or service, the defined entity is to conduct the consultation –

(a) in an equitable way so that people with disability have as much say in the planning and development of policies, programs and services as other members of the community; and

(b) through the use of flexible approaches to suit individuals and groups, taking into account access and communication needs, respecting difference and giving people with disability an equal opportunity to contribute.

Division 4 - Compliance notices

18.   Compliance notices

(1)  Subject to subsection (2) , the Commissioner may issue a compliance notice to a defined entity if the Commissioner reasonably believes that the entity, without reasonable excuse, has failed to comply with this Act by not doing one or more of the following as required by this Act:

(a) submitting a disability inclusion action plan to the Commissioner;

(b) publishing a copy of a disability inclusion action plan;

(c) submitting a progress report on the implementation of a disability inclusion action plan to the Commissioner;

(d) publishing a copy of a progress report on the implementation of a disability inclusion action plan;

(e) making reasonable and material progress in implementing a disability inclusion action plan.

(2)  Before issuing a compliance notice, the Commissioner must take reasonable steps to resolve the matter informally.

(3)  A compliance notice may require a defined entity to do one or more of the following:

(a) submit a disability inclusion action plan to the Commissioner;

(b) publish a disability inclusion action plan;

(c) submit a progress report on the implementation of a disability inclusion action plan to the Commissioner;

(d) publish a progress report on the implementation of a disability inclusion action plan;

(e) take any other action reasonably required to comply with this Act.

(4)  A defined entity must comply with a compliance notice.

19.   Form and content of compliance notices

(1)  A compliance notice issued to a defined entity must –

(a) state each requirement of this Act with which the Commissioner believes that the entity has failed to comply; and

(b) state the basis for the Commissioner's belief that the entity has failed to comply with that requirement; and

(c) state the action that the entity must take to comply with that requirement; and

(d) specify the date by which the entity must take that action; and

(e) state the further action that the Commissioner may take if the entity does not comply with the notice; and

(f) state that the entity may disagree with the notice within 14 days after receiving the notice.

(2)  For the purposes of subsection (1)(d) , the date specified in the compliance notice must be –

(a) for a requirement to prepare a disability inclusion action plan, not less than 60 days after the notice is issued; or

(b) in any other case, not less than 14 days after the notice is issued.

(3)  The Commissioner, by further written notice, may extend the date specified in a compliance notice under subsection (1)(d) by a period of up to 24 months.

20.   Defined entity may disagree with compliance notice

(1)  If a defined entity disagrees with a compliance notice, the entity may give a written response to the Commissioner, within 14 days after receiving the notice, setting out the entity's reasons for disagreeing with the notice.

(2)  The Commissioner must consider a response given under subsection (1) and, by written notice, may –

(a) withdraw the compliance notice; or

(b) vary the compliance notice; or

(c) affirm the compliance notice.

(3)  If the Commissioner varies or affirms a compliance notice, the notice under subsection (2) must specify the date by which the defined entity must take the action required to comply.

(4)  A defined entity must comply with a compliance notice as varied or affirmed.

21.   Commissioner may take action following non-compliance

(1)  If a defined entity does not comply with a compliance notice by the date specified in the notice, the Commissioner may do one or more of the following:

(a) accept a written undertaking by which the entity commits to take certain action to comply with this Act;

(b) send the Minister a report on the entity’s failure to comply with the Act;

(c) recommend that the Minister take any action that the Commissioner considers appropriate to ensure the entity's compliance with this Act;

(d) publish on the Commissioner's website the name of the entity and the requirement of this Act with which the entity has failed to comply.

(2)  If the Minister receives a report from the Commissioner under subsection (1)(b) the Minister is to cause a copy of the report to be tabled in each House of Parliament within 5 sitting-days of that House after the Minister has received that report.

22.   Enforceable undertakings

(1)  This section applies if the Commissioner accepts a written undertaking by which a defined entity commits to take certain action to comply with this Act.

(2)  The defined entity may withdraw or vary the undertaking with the Commissioner's consent.

(3)  While the undertaking is in effect and the defined entity is complying with the undertaking, the Commissioner must not –

(a) take any further action under section 21 ; or

(b) issue any further compliance notices in respect of the subject matter of the undertaking.

PART 3 - Disability Inclusion Advisory Council

23.   Establishment of Disability Inclusion Advisory Council

(1)  The Disability Inclusion Advisory Council is established.

(2)  The Disability Inclusion Advisory Council consists of at least 9 but not more than 11 persons appointed by the Minister on the recommendation of the Commissioner.

(3)  In appointing the members of the Disability Inclusion Advisory Council, the Minister is to ensure that –

(a) a majority of the members of the Disability Inclusion Advisory Council are people with disability; and

(b) the Disability Inclusion Advisory Council reflects the diversity of backgrounds and experiences of people with disability; and

(c) the Disability Inclusion Advisory Council has members with appropriate skills, knowledge and experience in matters relevant to the interests of people with disability.

(4)  Without limiting the persons that may be appointed to the Disability Inclusion Advisory Council, members may include –

(a) family members of people with disability; and

(b) carers of people with disability; and

(c) representatives of disability advocacy organisations, disability peak bodies and disability representative organisations.

(5)  The Minister is to appoint a member of the Disability Inclusion Advisory Council who is a person with disability as chairperson.

(6)  The members of the Disability Inclusion Advisory Council are to elect a deputy chairperson from the members of the Disability Inclusion Advisory Council.

(7)  If the office of chairperson is vacant, the deputy chairperson is to act as chairperson during the vacancy and, while so acting, may perform the functions and exercise the powers of the chairperson as fully and effectively as the chairperson.

(8)  Before appointing a person as a member of the Disability Inclusion Advisory Council, the Minister is to publicly invite, by diverse and accessible means, expressions of interest in the appointment.

(9)  The Minister need not comply with subsection (8) if re-appointing a person as a member of the Disability Inclusion Advisory Council for a consecutive term.

(10)  Schedule 1 has effect in respect of the membership and meetings of the Disability Inclusion Advisory Council.

24.   Functions of Disability Inclusion Advisory Council

(1)  The Disability Inclusion Advisory Council has the following functions:

(a) to communicate effectively with people with disability, including consultation to inform the development of the Tasmanian Disability Inclusion Plan;

(b) to raise awareness of the rights and contributions of people with disability;

(c) to promote the role of the Tasmanian community, including the business and community sectors, in furthering the rights of people with disability;

(d) to provide advice to the Commissioner and the Minister in respect of –

(i) government policy direction, strategic planning and the implementation of initiatives in relation to people with disability; and

(ii) barriers to inclusion and participation in the Tasmanian community of people with disability; and

(iii) strategies for the identification, reduction, removal and prevention of those barriers; and

(iv) strategies for the reduction, removal and prevention of violence against, and the abuse, neglect and exploitation of, people with disability; and

(v) any matter relating to disability, or disability inclusion, referred to the Disability Inclusion Advisory Council by the Commissioner or Minister;

(e) to provide advice to the Minister regarding the development of the Tasmanian Disability Inclusion Plan and to participate in the monitoring and implementation of the plan;

(f) to provide such information and advice to the Commissioner as the Disability Inclusion Advisory Council considers relevant to the performance of the Commissioner's functions under this Act or any other Act;

(g) to provide advice to defined entities regarding the development and implementation of disability inclusion action plans;

(h) to consult and work with other disability inclusion advisory councils or bodies, whether at a national, state or local government level;

(i) such other functions as are imposed on the Disability Inclusion Advisory Council under this or any other Act.

(2)  For the purpose of performing its functions under this Act, the Disability Inclusion Advisory Council may request that a defined entity provide to the Disability Inclusion Advisory Council, within the period specified in the request, reasonable information or advice.

(3)  A defined entity to which a request for information or advice is made under subsection (2) is authorised and required to comply with the request.

25.   Powers of Disability Inclusion Advisory Council

The Disability Inclusion Advisory Council has the power to do all things necessary, or convenient, to be done in connection with the performance of the Disability Inclusion Advisory Council’s functions, and the exercise of the Disability Inclusion Advisory Council’s powers, under this or any other Act.

26.   Annual Report

(1)  The Disability Inclusion Advisory Council must, by 1 October in each year, give the Commissioner a report on the performance of the functions and the exercise of the powers of the Disability Inclusion Advisory Council under this Act during the previous financial year.

(2)  The Commissioner is to include a copy of the report given by the Disability Inclusion Advisory Council under subsection (1) in respect of a financial year in the Commissioner’s report under section 33 for that financial year.

PART 4 - Disability Commissioner

Division 1 - General functions

27.   Appointment of Commissioner

(1)  The Governor, on the recommendation of the Minister, is to appoint a person as the Disability Commissioner.

(2)  A person recommended by the Minister under subsection (1) is to be a person with disability.

(3)  The Minister, before recommending a person for appointment as Commissioner under subsection (1) , may consult with the Disability Inclusion Advisory Council in relation to the recommendation.

(4)  Schedule 2 has effect in respect of the Commissioner and the Commissioner’s appointment.

28.   Functions of Commissioner

The Commissioner has the following functions:

(a) to provide advice and assistance to, and advocate systemically for, people with disability;

(b) to undertake research into any matter related to the operation and objects of this Act;

(c) to advise, and make recommendations to, the Minister, on the Commissioner’s own initiative or at the request of the Minister, on any matters arising from the performance of the Commissioner's functions;

(d) to promote, monitor and review the wellbeing of people with disability;

(e) to provide leadership, foster inclusion and promote accessibility across government and universal services, including monitoring and reporting in relation to the Tasmanian Disability Inclusion Plan;

(f) to support defined entities to comply with this Act;

(g) to promote the rights of people with disability, including rights relating to disability inclusion, accessibility, individual autonomy, self-determination and choice and control;

(h) to support the capacity-building of people with disability to participate in activities for the purposes of this Act;

(i) to establish and monitor safeguarding mechanisms that address violence against, and the abuse, neglect, coercion and exploitation of, people with disability;

(j) to raise awareness in relation to, and education about the rights of, people with disability;

(k) to take action, where appropriate, in relation to allegations of violence against, or the abuse, neglect, coercion, or exploitation of, people with disability, whether on the basis of a report made to the Commissioner or on the Commissioner’s own initiative, including by referring matters to appropriate persons or bodies and by conducting investigations;

(l) to inquire into and report on systemic issues relating to the protection and promotion of the rights of people with disability;

(m) to consult with the Disability Inclusion Advisory Council, people with disability and disability representative organisations on matters relating to the objects of this Act;

(n) any other functions that are conferred or imposed on the Commissioner by or under this or any other Act;

(o) any other prescribed functions.

29.   Powers of Commissioner

(1)  In this section –

de-identified information means information in relation to a person that does not –

(a) contain identifying details for the person; or

(b) enable the identity of the person to be ascertained or discovered.

(2)  The Commissioner has the power to do all things necessary, or convenient, to be done in connection with the performance of the Commissioner’s functions, and the exercise of the Commissioner’s powers, under this or any other Act.

(3)  Without limiting subsection (2) , the Commissioner may –

(a) require de-identified information and data for the purposes of –

(i) collating, studying, interpreting and maintaining information in relation to the wellbeing of people with disability in the State; and

(ii) identifying and monitoring trends in respect of the wellbeing of people with disability in the State; and

(b) investigate, and make recommendations in respect of, the functions of the Commissioner; and

(c) investigate, and make recommendations in respect of, the systems, policies and practices of organisations, government or non-government, that provide services that affect people with disability; and

(d) advise and make recommendations, in relation to the rights and wellbeing of people with disability, to the Minister or defined entities; and

(e) provide information to other organisations and persons in accordance with this Act or any other Act; and

(f) report publicly on the wellbeing of people with disability in the State; and

(g) exercise such other powers as are prescribed.

(4)  In performing a function, or exercising a power, under this Act, the Commissioner –

(a) may regulate any proceedings held under this Act in any manner that the Commissioner considers appropriate; and

(b) is not bound by the rules of evidence but may inform themself of any matter in any manner that the Commissioner thinks fit; and

(c) is not required to hold a hearing as part of an investigation or review, or as part of the performance of any other function, under this Act; and

(d) may investigate, or review, a matter in any manner that the Commissioner considers appropriate; and

(e) may hold an investigation, or review, under this Act in public or in private.

(5)  The Right to Information Act 2009 does not apply to information, as defined in that Act, in the possession of the Commissioner or a person required, or engaged by, the Commissioner to do or not to do a thing, unless the information relates to the administration of a public authority within the meaning of that Act.

30.   Guidelines relating to obligations of defined entities

(1)  The Commissioner may issue guidelines for the purpose of assisting defined entities in respect of their obligations under this Act.

(2)  Without limiting the matters in respect of which the Commissioner may issue guidelines under subsection (1) , guidelines may include matters relating to the following:

(a) complying with the principles and objects of this Act;

(b) the preparation of disability inclusion action plans;

(c) the preparation of progress reports;

(d) any other matter that the Commissioner considers appropriate.

(3)  In preparing guidelines under this section, the Commissioner must consult with the Disability Inclusion Advisory Council.

(4)  A defined entity must have regard to the guidelines issued under subsection (1) .

(5)  The Commissioner may vary, substitute or revoke guidelines under this section.

(6)  The Commissioner must cause guidelines issued under this section to be published on a website operated by, or on behalf of, the Commissioner.

31.   Delegation by Commissioner

The Commissioner, in writing, may delegate any of the functions or powers of the Commissioner other than this power of delegation.

32.   Staff

(1)  The Commissioner may make arrangements with the Head of a State Service Agency for a State Service officer or State Service employee employed in that Agency to be made available to the Commissioner to enable the Commissioner to perform the Commissioner’s functions under this Act or any other Act.

(2)  Subject to and in accordance with the State Service Act 2000 , a person may be employed for the purpose of enabling the Commissioner to perform the Commissioner’s functions under this Act or any other Act.

(3)  Officers and employees made available under subsection (1) , or employed under subsection (2) , may serve the Commissioner in any capacity in conjunction with State Service employment.

33.   Annual report

(1)  The Commissioner must, by 1 November in each year, give the Minister a report on the performance of the functions and the exercise of the powers of the Commissioner under this Act and any other Act during the previous financial year.

(2)  The Minister, in writing, may direct the Commissioner to report on specified matters in the annual report.

(3)  The Commissioner must cause the annual report to be published on a website operated by, or on behalf of, the Commissioner in accessible formats.

(4)  The Minister is to cause a copy of the annual report to be laid before each House of Parliament within the first 5 sitting-days of that House after the Minister receives the report under subsection (1) .

Division 2 - Investigations

34.   Interpretation of Division

In this Division –

report means a report made to the Commissioner under section 36 or a matter that the Commissioner decides to deal with as a report under that section.

35.   Initiation of investigation

The Commissioner may, of the Commissioner’s own motion or in response to a report, investigate any matter relating to the objects of this Act including, but not limited to, the provision of services to people with disability.

36.   Making of reports

(1)  Any person may make a report to the Commissioner concerning any matter relating to the objects of this Act.

(2)  A report does not need to be in writing.

(3)  The Commissioner may make preliminary inquiries for the purpose of deciding how to deal with a report and may request further information from the person making the report.

(4)  Without limiting subsection (1) , a person may make a report about the following:

(a) matters relating to a person with disability if the person has reasonable grounds to believe that the person with disability is subject to or at risk of violence, abuse, neglect, coercion or exploitation;

(b) circumstances that the person has reasonable grounds to believe will result in violence against, or the abuse, neglect, coercion or exploitation of, a person with disability.

(5)  Without limiting subsection (1) , a person with disability may make a report if the person has reasonable grounds to believe that the person is subject to, or at risk of, violence, abuse, neglect, coercion or exploitation.

(6)  The Commissioner may, on the Commissioner’s own initiative, decide to deal with a matter as a report if the matter relates to a person with disability that the Commissioner has reasonable grounds to believe is subject to, or at risk of, violence, abuse, neglect, coercion or exploitation.

(7)  In order to conduct an investigation into a report of violence, abuse, neglect, coercion or exploitation of a person with disability, the Commissioner must obtain the consent of the person, unless the Commissioner is of the opinion that –

(a) the person is incapable of giving consent, despite having been provided with the appropriate support for the purposes of making such a decision; or

(b) it is not necessary to obtain consent due to the seriousness of the allegation or the risk to the personal safety of the person; or

(c) any other circumstances prescribed by the regulations exist.

37.   Investigation of reports

(1)  The Commissioner may do any one or more of the following in respect of a report:

(a) conduct an investigation;

(b) make a referral under section 38 to another person or body;

(c) decline to take action on the report.

(2)  The Commissioner may decline to take action on a report under subsection (1) if –

(a) the Commissioner considers that the report is –

(i) frivolous; or

(ii) vexatious; or

(iii) misconceived; or

(iv) lacking in substance; or

(b) the matter to which the report relates has already been determined by a court, board or tribunal and does not raise any matter or issue that was not considered in that determination; or

(c) the matter to which the report relates is being considered by a court, board or tribunal; or

(d) the report relates to an incident which occurred more than 12 months before the report was made and the Commissioner considers that the person who made the report has not shown a good reason for the delay; or

(e) the Commissioner considers that the Commissioner does not have the jurisdiction to consider the report under this Act; or

(f) the Commissioner considers that the report raises issues which require investigation by another person, court, board or tribunal.

(3)  The Commissioner is to notify the person, who made a report to the Commissioner, of the decision made in relation to that report under subsection (1) as soon as practicable after making that decision.

38.   Referral of report or investigation

(1)  If the Commissioner is of the opinion that a matter that is the subject of a report or investigation constitutes a complaint that may be made to any of the following persons or bodies, the Commissioner must refer the matter to the person or body:

(a) the Anti-Discrimination Commissioner appointed under the Anti-Discrimination Act 1998 ;

(b) the Health Complaints Commissioner appointed under the Health Complaints Act 1995 ;

(c) the Commissioner for Children and Young People appointed under the Commissioner for Children and Young People Act 2016 ;

(d) the Independent Regulator appointed under the Child and Youth Safe Organisations Act 2023 ;

(e) the NDIS Quality and Safeguards Commission;

(f) the Australian Health Practitioner Regulation Agency established by section 23 of the Health Practitioner Regulation National Law (Tasmania);

(g) any other prescribed person or body.

(2)  The Commissioner may conduct an investigation of a matter that the Commissioner has referred to another person or body under subsection (1) , if the Commissioner is of the opinion that conducting an investigation may be necessary to protect a person with disability from violence, abuse, neglect, coercion or exploitation.

(3)  If the Commissioner is of the opinion that a report or investigation may provide evidence of the commission of a criminal offence, the Commissioner must refer the report or investigation, or part of the report or investigation, to the Commissioner of Police or the Director of Public Prosecutions.

(4)  The Commissioner must refuse to conduct an investigation if the matter that is the subject of the investigation is the subject of, or would prejudice, any criminal proceedings or criminal investigations.

39.   Information for the purposes of an investigation

(1)  If the Commissioner has reason to believe that a person is capable of providing information or producing a document relevant to an investigation, the Commissioner may, by notice in writing provided to the person, require the person to do one or more of the following:

(a) provide that information to the Commissioner in writing signed by that person or, in the case of a body corporate, by an officer of the body corporate;

(b) produce that document to the Commissioner;

(c) attend before a person specified in the notice and provide information by answering questions relevant to the investigation.

(2)  A notice referred to in subsection (1) is to specify the period within which, or the day, time and place at which, the person is required to provide the information or document or attend to answer questions.

(3)  Nothing in this section authorises the Commissioner to require the provision of exempt information or that part of a document containing exempt information.

(4)  Where a document is produced in accordance with a requirement under this section, the Commissioner may take possession of, make copies of, or take extracts from, the document.

(5)  A person must not, without reasonable excuse, fail to comply with a requirement made of the person under subsection (1) .

Penalty:  Fine not exceeding 50 penalty units.

40.   Protection of persons making reports

(1)  The identity of a person who makes a report to the Commissioner in good faith, or information from which the identity of that person could be deduced, must not be disclosed by any person or body unless the disclosure is –

(a) made with the consent of the person who made the report; or

(b) necessary for the purposes of law enforcement; or

(c) otherwise permitted under this or any other Act; or

(d) necessary for any other purpose prescribed by the regulations.

(2)  If a person, acting in good faith, makes a report to the Commissioner in accordance with this Act, that person is not liable to any civil or criminal action, or any disciplinary action, for making the report.

41.   Procedure on completion of investigation

The Commissioner, as a result of an investigation, may take further action or make recommendations to such persons as the Commissioner thinks fit, including, but not limited to, disability services providers, defined entities and other persons and organisations that provide services that affect people with disability.

PART 5 - Disability Services Regulations

42.   Disability service standards

(1)  The regulations are to prescribe standards that are to apply in relation to the provision, by disability services providers, of supports and services for people with disability.

(2)  Regulations for the purposes of subsection (1) may prescribe standards that apply to –

(a) all disability services providers; or

(b) a particular class of disability services provider.

(3)  The regulations may adopt, either wholly or in part, and either specifically or by reference and with or without modification, any national disability standards, whether the standards are published or issued before or after the commencement of this Act.

PART 6 - Senior Practitioner

43.   Senior Practitioner to be appointed

(1)  The Secretary is to appoint a State Service employee or State Service officer to be the Senior Practitioner.

(2)  A person may only be appointed to be the Senior Practitioner if, in the opinion of the Secretary, the person has appropriate qualifications and experience to perform the functions and exercise the powers of the Senior Practitioner under this Act.

44.   Functions and powers of Senior Practitioner

(1)  The functions of the Senior Practitioner include the following:

(a) to authorise the use of restrictive practices by disability services providers;

(b) to oversee the use of restrictive practices in accordance with this Act;

(c) to report to the Secretary in relation to the authorisation and use of restrictive practices;

(d) to promote the reduction and elimination of the use of restrictive practices by disability services providers to the greatest extent possible;

(e) to ensure that –

(i) the rights of people who may be subject to restrictive practices are protected to the greatest extent possible; and

(ii) disability services providers comply with any applicable guidelines and standards on the use of restrictive practices;

(f) to develop guidelines and standards that are in accordance with best practice and the objects of this Act;

(g) to give directions to disability services providers about the use of restrictive practices;

(h) to provide education and information in relation to restrictive practices and the use of behaviour management techniques that may obviate or minimise the need for restrictive practices;

(i) to provide information in relation to the rights of people with disability who may be subject to restrictive practices;

(j) to give advice to disability services providers so as to –

(i) improve practices in relation to restrictive practices and the use of behaviour management techniques that may obviate or minimise the need for restrictive practices; and

(ii) enable the use of restrictive practices to be reduced and, where appropriate, eliminated;

(k) to undertake research in relation to restrictive practices and to make recommendations to the Secretary in respect of the need for research in relation to restrictive practices;

(l) to monitor and evaluate the use of restrictive practices;

(m) such other functions as are imposed on the Senior Practitioner under this or any other Act.

(2)  In addition to any other power that may be exercised by the Senior Practitioner under this Act, the Senior Practitioner has the power to do all things necessary, or convenient, to be done in connection with the performance of the Senior Practitioner’s functions, and the exercise of the Senior Practitioner’s powers, under this or any other Act.

45.   Senior Practitioner may determine restrictive practices

(1)  The Senior Practitioner may determine that a practice or intervention that has the effect of restricting the rights or freedom of movement of a person with disability is a restrictive practice for the purposes of this Act.

(2)  The Senior Practitioner is to ensure that notice of the making of a determination under subsection (1) is published on a website operated by, or on behalf of, the Senior Practitioner.

(3)  The Senior Practitioner is to ensure that a list of all practices and interventions determined under subsection (1) to be restrictive practices is published on a website operated by, or on behalf of, the Senior Practitioner.

46.   Senior Practitioner may issue guidelines

(1)  The Senior Practitioner may issue written guidelines relating to the performance and exercise of the Senior Practitioner’s functions and powers under this Act.

(2)  Without limiting subsection (1) , guidelines issued by the Senior Practitioner may be made in relation to the following matters:

(a) the authorisation of restrictive practices;

(b) the use of restrictive practices;

(c) the appointment and functions of appointed program officers;

(d) the appointment and role of independent persons in assisting and supporting people with disability;

(e) the handling of disputes between an independent person and an appointed program officer.

(3)  In developing guidelines under this section, the Senior Practitioner must consult as appropriate with relevant stakeholders and community members.

(4)  A guideline may apply, adopt or incorporate, either wholly or in part, any document as in force from time to time.

(5)  The Senior Practitioner is to ensure that a copy of any guidelines issued under this section is published on a website operated by, or on behalf of, the Senior Practitioner in accessible formats.

(6)  Guidelines made under this section are not statutory rules for the purposes of the Rules Publication Act 1953 .

47.   Annual report

(1)  The Senior Practitioner must provide to the Secretary, by 1 September in each year, a report consisting of –

(a) information on the performance of the functions, and the exercise of the powers, of the Senior Practitioner during the previous financial year; and

(b) data relating to the use of restrictive practices during the previous financial year; and

(c) observations on systemic issues in relation to restrictive practices.

(2)  A report provided to the Secretary under subsection (1) must not enable a person with disability to be identified.

(3)  The Secretary must ensure that a copy of the report provided to the Secretary under subsection (1) is published on a website operated by, or on behalf of, the Department –

(a) for at least 12 months after it is so provided; and

(b) in accessible formats.

48.   Delegation by Senior Practitioner

(1)  The Senior Practitioner may delegate to a State Service employee or State Service officer a power or function of the Senior Practitioner, other than this power of delegation.

(2)  The Senior Practitioner may only delegate a power or function under subsection (1) to a person who –

(a) in the opinion of the Senior Practitioner, has sufficient knowledge and expertise in respect of people with disability; and

(b) has appropriate skills and qualifications in respect of the power or function.

49.   Staff and contractors

(1)  The Senior Practitioner may make arrangements with the Head of a State Service Agency for a State Service officer or State Service employee employed in that Agency to be made available to the Senior Practitioner to enable the Senior Practitioner to perform the Senior Practitioner’s functions under this Act or any other Act.

(2)  Subject to and in accordance with the State Service Act 2000 , a person with appropriate expertise and experience may be employed for the purpose of enabling the Senior Practitioner to perform and exercise the Senior Practitioner’s duties, functions and powers under this Act or any other Act.

(3)  Officers and employees made available under subsection (1) , or employed under subsection (2) , may serve the Senior Practitioner in any capacity in conjunction with State Service employment.

(4)  Subject to the approval of the Secretary, the Senior Practitioner may enter into agreements or arrangements with a person or body for the purpose of obtaining appropriate expertise to assist the Senior Practitioner in the performance and exercise of the Senior Practitioner's powers, duties and functions under this Act.

50.   Persons to provide assistance to Senior Practitioner

(1)  The Senior Practitioner may require a disability services provider, or a member of the staff or management of a disability services provider, to provide the Senior Practitioner with any reasonable assistance that the Senior Practitioner may require to perform a function or exercise a power of the Senior Practitioner under this Act.

(2)  A disability services provider, or a member of the staff or management of a disability services provider, must –

(a) render assistance when reasonably required to do so under subsection (1) ; and

(b) give full and true answers to the best of the provider's, or member of staff or management’s, knowledge to any question asked by the Senior Practitioner in the performance or exercise of a function or power of the Senior Practitioner under this Act.

Penalty:  Fine not exceeding 200 penalty units.

PART 7 - Regulation of Restrictive Practices

Division 1 - Authorisation of restrictive practices by Senior Practitioner

51.   Application for authorisation to use restrictive practices

(1)  A disability services provider may apply to the Senior Practitioner for authorisation to use, in relation to a person with disability who is receiving disability services from that provider, such types of restrictive practices as are specified in the application.

(2)  An application under subsection (1) made in relation to a person with disability must –

(a) be in a form approved by the Senior Practitioner; and

(b) be accompanied by a behaviour support plan that is prepared for the person with disability in accordance with section 57 .

52.   Authorisation to use restrictive practices

(1)  The Senior Practitioner, after receiving an application under section 51(1) , may grant, or refuse to grant, written authorisation for the use, in relation to a person with disability, of such types of restrictive practice as are specified in the authorisation.

(2)  An authorisation granted under subsection (1) may authorise the use, in relation to a person with disability, of a type of restrictive practice –

(a) by the disability services provider who made the application; or

(b) by all disability services providers who provide disability services to the person with disability.

(3)  The Senior Practitioner may only grant an authorisation under subsection (1) for the use of a type of restrictive practice if the Senior Practitioner or the Senior Practitioner’s nominee has consulted with –

(a) the person with disability in respect of whom the restrictive practice is to be used or a person nominated by that person; and

(b) persons, if any, who have expertise in the use of restrictive practices of that type –

and the Senior Practitioner has taken into account any matters raised in that consultation.

(4)  An authorisation for the use of a type of restrictive practice in relation to a person with disability may only be granted by the Senior Practitioner under subsection (1) if the Senior Practitioner is satisfied that –

(a) the type of restrictive practice will be used only for the primary purpose of ensuring the safety, health or wellbeing of the person or other persons; and

(b) the restrictive practice is the type of restrictive practice that is the least restrictive of the person's freedom of decision and action as is practicable in the circumstances.

(5)  In determining whether to grant an authorisation under this section for the use of a type of restrictive practice in relation to a person with disability, the Senior Practitioner must have regard to –

(a) the will and preferences of the person with disability; and

(b) the consequences to the person with disability if a restrictive practice of that type is used in relation to the person; and

(c) the consequences to the person with disability, or other persons, if a restrictive practice of that type is not used in relation to the person with disability; and

(d) any alternative method reasonably suitable and able to be used in relation to the person and which responds to the behaviour of concern for which the type of restrictive practice has been proposed; and

(e) the nature and degree of any significant risks to the person with disability if the restrictive practice is used; and

(f) whether, and the extent to which, use of the restrictive practice will promote or reduce the safety, health and wellbeing of the person with disability; and

(g) the behaviour support plan that has been prepared for the person with disability and submitted under section 51(2)(b) .

(6)  If the Senior Practitioner grants an authorisation for the use of a restrictive practice under subsection (1) , the Senior Practitioner must notify the Commissioner of that fact within 5 days after the granting of the authorisation.

53.   Provisions in respect of authorisations by Senior Practitioner

(1)  An authorisation under section 52 may be granted subject to any conditions or limitations specified in the authorisation.

(2)  Without limiting the generality of subsection (1) , an authorisation under section 52 may be granted on the condition that reports, in relation to the use of restrictive practices of the type permitted under the authorisation, are given to the Senior Practitioner, at the times, or in the circumstances, specified in the condition.

(3)  An authorisation granted under section 52 has effect for such period, not exceeding 12 months, as is specified in the authorisation.

(4)  Nothing in this Act is to be taken to prevent the granting of more than one authorisation under section 52 in relation to the same person with disability.

54.   Review, amendment and revocation of authorisation for the use of restrictive practices

(1)  If the Senior Practitioner has granted an authorisation under section 52 in respect of a person with disability, the Senior Practitioner may, at any time, review the authorisation –

(a) on the Senior Practitioner’s own motion; or

(b) on application by the person with disability; or

(c) on application by a disability services provider who provides disability services to the person with disability; or

(d) on application by an independent person for the person with disability.

(2)  The Senior Practitioner, after reviewing an authorisation granted under section 52 in respect of a person with disability, may, by notice in writing to –

(a) disability services providers who provide disability services to the person with disability; and

(b) the person with disability; and

(c) an independent person for the person with disability –

amend or revoke the authorisation.

(3)  The Senior Practitioner may only amend or revoke an authorisation granted by the Senior Practitioner under section 52 in respect of a person with disability if the Senior Practitioner is satisfied that consultation on the Senior Practitioner's behalf with –

(a) any disability services providers who provide disability services to the person with disability; and

(b) the person with disability; and

(c) an independent person for the person with disability –

has occurred and the Senior Practitioner has taken into account matters raised in that consultation.

(4)  If the Senior Practitioner amends or revokes an authorisation under subsection (2) , the Senior Practitioner must notify the Commissioner of that fact within 5 days after the amendment or revocation.

Division 2 - Use of unauthorised restrictive practices

55.   Use of prohibited practice

(1)  In this section –

prohibited practice means a practice or intervention including, but not limited to, specific forms of physical restraint and coercive and punitive approaches that is of a type, or class, of practice or intervention that is prescribed for the purposes of this definition.

(2)  A disability services provider must not use a prohibited practice in relation to a person with disability.

Penalty:  Fine not exceeding 200 penalty units.

56.   Use of unauthorised restrictive practice not permitted

(1)  A disability services provider must ensure that a type of restrictive practice is not used in relation to a person with disability unless –

(a) there is in force –

(i) an authorisation under section 52 or section 58(1)(g) for the use of the type of restrictive practice in relation to the person; or

(ii) an authorisation under the Mental Health Act 2013 or the Guardianship and Administration Act 1995 for the use of the type of restrictive practice in relation to the person; and

(b) the restrictive practice is used in accordance with any conditions or limitations specified in the authorisation; and

(c) the restrictive practice does not contravene a direction, if any, given under section 59 in relation to the use of the restrictive practice in relation to the person.

Penalty:  Fine not exceeding 200 penalty units.

(2)  It is a defence in proceedings for an offence under subsection (1) if the defendant establishes that –

(a) the use of the restrictive practice in relation to the person with disability was required to protect the person with disability, or another person, from harm, that was both serious and imminent; and

(b) the restrictive practice used was the least intrusive type of restrictive practice that would have protected the person with disability, or another person, from harm, that was both serious and imminent; and

(c) the Senior Practitioner was notified by the defendant within 5 business days after the restrictive practice was used.

Division 3 - Behaviour support plans

57.   Behaviour support plan to be prepared

If a disability services provider that is providing a disability service to a person with disability proposes to use a restrictive practice in relation to the person, the disability services provider must ensure that a behaviour support plan is prepared for the person with disability, by a behaviour support practitioner, that –

(a) states the circumstances in which the proposed type of restrictive practice is to be used for behaviour support; and

(b) explains how the use of a restrictive practice will be of benefit to the person with disability; and

(c) demonstrates that the use of a restrictive practice is the option which is the least restrictive of the person as is possible in the circumstances; and

(d) includes strategies to reduce or eliminate the need for a restrictive practice to be used on the person with disability; and

(e) takes into account any –

(i) previous behaviour assessments; and

(ii) other relevant assessments; and

(f) includes the changes to be made to the environment of the person to reduce or eliminate the need for the restrictive practice to be used on the person.

Division 4 - Investigations and directions

58.   Senior Practitioner to investigate use of restrictive practices

(1)  The Senior Practitioner has the following powers in relation to a disability services provider:

(a) to visit and inspect any place where disability services are being provided by the disability services provider;

(b) to see any person in relation to whom a restrictive practice has been, or is being, used by the disability services provider;

(c) to investigate, audit and monitor the use of restrictive practices by the disability services provider;

(d) to inspect and make copies of, or take extracts from, any document held by the disability services provider relating to any person in relation to whom a restrictive practice has been, or is being, used;

(e) to see, upon request, any person involved in the development, implementation or authorisation of any restrictive practice by the disability services provider;

(f) to request a disability services provider to provide information about any restrictive practice carried out by the provider;

(g) to give a written authorisation to the disability services provider for the use of a restrictive practice in relation to a person with disability.

(2)  The Senior Practitioner must, as soon as practicable after the occurrence of any of the following events, give notice in writing of that event to the person with disability affected by the event or a person nominated by that person with disability:

(a) an authorisation given under subsection (1)(g) or section 52 in respect of the person with disability;

(b) a direction given under section 59 in respect of the person with disability.

(3)  Notice of an event under subsection (2) must be given in a format which best supports the understanding of the person with disability affected by the event.

(4)  The Senior Practitioner may notify the NDIS Commissioner of any matter relating to an NDIS provider that has come to the Senior Practitioner's attention in the course of exercising a power or performing a function or duty under this Act.

(5)  The Senior Practitioner may, by notice in writing, prohibit the use of restrictive practices, or specified types of restrictive practice, in relation to a person with disability, or a class of people with disability, by –

(a) a disability services provider; or

(b) disability services providers belonging to a specified class of disability services provider.

(6)  Notice of a prohibition referred to in subsection (5) must be –

(a) given to each provider who is prohibited from using the restrictive practice specified in the notice; and

(b) published on a website operated by, or on behalf of, the Department.

(7)  The Senior Practitioner must provide a report to the Commissioner regarding the exercise of any power under subsection (1) in relation to a disability services provider within 28 days after exercising that power.

59.   Directions may be issued in relation to restrictive practices

(1)  The Senior Practitioner may, by notice in writing to a disability services provider, direct the provider to do any of the following:

(a) to discontinue a restrictive practice authorised under section 52 or section 58(1)(g) ;

(b) to discontinue or alter, as specified in the notice, a practice or procedure used by the provider;

(c) to follow a practice or procedure, specified in the notice, in the use of a restrictive practice that has been authorised under section 52 or section 58(1)(g) .

(2)  The Senior Practitioner may only give a direction under subsection (1) if the Senior Practitioner has considered the matters referred to in section 52(4) and (5) .

(3)  A disability services provider to whom a direction under subsection (1) is given must comply with the direction.

Penalty:  Fine not exceeding 200 penalty units.

(4)  If a direction is given under subsection (1) to discontinue a restrictive practice, or a practice or procedure used in a restrictive practice, the Senior Practitioner may provide assistance to identify alternative strategies or less restrictive practices for use in the management of the behaviour of the person in relation to whom the restrictive practice is to be discontinued.

(5)  The Senior Practitioner must, as soon as practicable after giving a direction under subsection (1) , give notice in writing of that direction to the person with disability affected by that event or a person nominated by that person with disability.

PART 8 - Appointed Program Officers

Division 1 - Role of appointed program officer

60.   Appointed program officer

(1)  An appointed program officer for a disability services provider must ensure that any restrictive practice used in relation to a person with disability by that disability services provider, under an authorisation under section 52 or section 58(1)(g)  –

(a) is used in accordance with –

(i) that authorisation; and

(ii) any guidelines issued by the Senior Practitioner in relation to restrictive practices under section 46 ; and

(iii) the person's behaviour support plan; and

(b) is the least restrictive of the person as is possible in the circumstances.

(2)  An appointed program officer must perform the appointed program officer’s functions in accordance with any guidelines issued by the Senior Practitioner under section 46 .

Division 2 - Appointment and approval of appointed program officer

61.   Disability services provider to appoint program officer

(1)  A disability services provider must appoint an appointed program officer if the disability services provider intends to use restrictive practices in relation to a person with disability under Part 7 .

(2)  More than one appointed program officer may be appointed by a provider under subsection (1) .

62.   Approval by Senior Practitioner for appointment of appointed program officer

(1)  A disability services provider who proposes to appoint an appointed program officer must apply to the Senior Practitioner for approval of the proposed appointment.

(2)  An application for approval must include –

(a) the name of the proposed appointed program officer; and

(b) the qualifications of the proposed appointed program officer; and

(c) such other information as the Senior Practitioner requires.

(3)  The Senior Practitioner may approve, or refuse to approve, the appointment of one or more appointed program officers.

(4)  An approval under subsection (3) may be subject to such conditions or limitations as the Senior Practitioner considers appropriate.

(5)  The Senior Practitioner must keep a register of the name and qualifications of each appointed program officer appointed under this Part.

63.   Revocation or amendment of approval

The Senior Practitioner may revoke or amend the approval of the appointment of an appointed program officer if the Senior Practitioner considers that it is appropriate to do so.

64.   Senior Practitioner to notify disability services provider before refusal, revocation or amendment

(1)  The Senior Practitioner must not refuse an application under section 62 , or revoke or amend the approval of the appointment of an appointed program officer under section 63 , unless the Senior Practitioner has given a written notice to the disability services provider in accordance with subsection (2) and has considered any submission made by the disability services provider in accordance with subsection (2)(b) .

(2)  The notice must specify –

(a) the proposed decision and the reasons for the proposed decision; and

(b) that the disability services provider may make a written submission to the Senior Practitioner within 14 days after the notice is given.

65.   Senior Practitioner may issue directions

(1)  The Senior Practitioner may issue directions to disability services providers in relation to –

(a) the minimum qualifications required to be held by persons who are appointed program officers; and

(b) training to be completed by appointed program officers; and

(c) any other matter in relation to appointed program officers; and

(d) any other prescribed matters.

(2)  The Senior Practitioner may direct a disability services provider to appoint an appointed program officer if the provider does not have an appointed program officer.

(3)  A direction issued by the Senior Practitioner under this section is to be published on a website operated by, or on behalf of, the Department.

PART 9 - Independent Persons

66.   Appointment of independent persons

(1)  If a provision of this Act requires that an independent person provide assistance to a person with disability, the appointed program officer for the disability services provider that is providing disability services to that person is to –

(a) identify, whilst taking into account the will and preference of the person with disability, a person who is suitable to be appointed as an independent person for the person with disability (such as a family member or friend); and

(b) submit the proposed appointment to the Senior Practitioner for approval.

(2)  For the purposes of this section, a person is suitable to be appointed as an independent person for a person with disability if that person –

(a) is able to explain to the person with disability –

(i) the proposed use of a restrictive practice on the person with disability; and

(ii) that the person with disability may seek a review of the Senior Practitioner’s decision to authorise the use of a restrictive practice; and

(b) is able to support the person with disability to express the person with disability’s will and preference.

(3)  For the purposes of this section, a person is not suitable to be appointed as an independent person for a person with disability if that person is –

(a) a disability services provider for the person with disability; or

(b) an employee or member of the governing body of a disability services provider for the person with disability; or

(c) a person with an interest in a disability services provider for the person with disability; or

(d) a person with responsibility for the development or review of the behaviour support plan for the person with disability.

(4)  A submission under subsection (1) made in relation to a person with disability must be in a form approved by the Senior Practitioner.

(5)  The Senior Practitioner, after receiving a submission under subsection (1) may approve, or refuse to approve, the appointment of an independent person for a person with disability.

(6)  An approval under subsection (5) may be subject to such conditions or limitations as the Senior Practitioner considers appropriate.

(7)  An appointed program officer must notify the Senior Practitioner if a person with disability who requires the assistance or support of an independent person under this Act –

(a) does not, in the opinion of the appointed program officer, have a person who is suitable to be appointed as an independent person for the person with disability; or

(b) advises the appointed program officer that they do not consider that the person who is appointed as an independent person for the person with disability is suitable to be so appointed.

(8)  If the Senior Practitioner receives a notification under subsection (7) , the Senior Practitioner must appoint as an independent person for the person with disability such a person who, in the opinion of the Senior Practitioner, is suitable to be so appointed.

(9)  The Senior Practitioner may revoke or amend the approval of the appointment of an independent person if the Senior Practitioner considers that it is appropriate to do so.

67.   Independent person to provide explanation in respect of restrictive practices

(1)  If a disability services provider is granted an authorisation under Part 7 to use a restrictive practice in relation to a person with disability, the appointed program officer for the disability services provider must ensure that an independent person explains to the person with disability –

(a) the proposed use of the restrictive practice in relation to the person with disability; and

(b) that the person may apply under section 54 for a review, amendment or revocation of the authorisation to use the restrictive practice in relation to that person with disability; and

(c) that the person may apply for a review under Part 13 of a decision of the Senior Practitioner to grant an authorisation for the use of a restrictive practice in relation to that person with disability.

(2)  Subject to subsection (3) , if a disability services provider proposes to change a behaviour support plan for a person with disability, an appointed program officer for the disability services provider must ensure that an independent person explains to the person for whom the behaviour support plan was prepared –

(a) the details of those changes; and

(b) if those changes involve the inclusion of a more restrictive type or use of restrictive practice, any matter related to the inclusion of the restrictive practice.

(3)  Subsection (2) does not apply in respect of proposed changes to a behaviour support plan if –

(a) it is not proposed, as a result of the review, that a more restrictive type or use of restrictive practice be included in the behaviour support plan; and

(b) the person for whom the behaviour support plan was prepared has had the plan reviewed by the disability services provider or a behaviour support practitioner in the last 12 months; and

(c) during that review, an independent person was available in accordance with this section.

(4)  An independent person for a person with disability must notify the Senior Practitioner if the independent person considers that –

(a) the person with disability is not able to understand a proposal to use a restrictive practice; or

(b) the requirements of this Act or any relevant requirements of the NDIS Act or NDIS Rules are not being complied with.

PART 10 - Community Visitor Scheme

68.   Community visitor scheme

(1)  The regulations may establish a scheme for a community visitor or visitors.

(2)  Without limiting the generality of subsection (1) , the regulations may make provision in relation to the following:

(a) the selection, appointment and removal of community visitors;

(b) conferring functions and powers on community visitors;

(c) providing for the delegation of the functions and powers of community visitors;

(d) requiring reports to be provided to the Minister on the operation of the community visitor scheme during a specified period, and requiring such reports to be laid before Parliament.

PART 11 - Funding

69.   Grants of financial assistance to promote objects of Act

(1)  The Minister may grant financial assistance for any purpose consistent with the objects of this Act.

(2)  The Minister must not grant financial assistance under this section unless satisfied that the grant would further the principles.

(3)  For the purposes of subsection (1) , financial assistance may be granted to any of the following persons or bodies:

(a) a person with disability, or a carer of such a person, for the purpose of obtaining the care, support or assistance that the person with disability or the carer may need;

(b) a disability advocacy organisation, disability peak body or disability representative organisation;

(c) a person or organisation carrying out research activities;

(d) a disability services provider.

(4)  Financial assistance granted under this section may be subject to such conditions, if any, as the Minister considers appropriate.

(5)  The Minister may at any time withdraw or vary financial assistance granted under this section.

PART 12 - Authorised Officers

70.   Secretary or Commissioner may authorise entry of premises

(1)  The Secretary or the Commissioner, in writing, may authorise a State Service employee or State Service officer to enter –

(a) the premises of a disability services provider; or

(b) the premises of a grant recipient; or

(c) premises where there are reasonable grounds for believing that there is on any such premises a person with disability who is subject to, or at risk of, serious abuse, neglect, coercion or exploitation.

(2)  An authorisation under this section may be subject to conditions or limitations specified in the authorisation.

71.   Rights of authorised officers to enter premises

(1)  An authorised officer who is authorised under section 70 to enter premises may enter the premises specified in the authorisation.

(2)  An entry of premises under subsection (1) may only be made for the purposes of –

(a) ensuring that people with disability who reside at, or receive disability services on, the premises are receiving the care and support that is necessary or desirable for their health and wellbeing; or

(b) ensuring the safety of people with disability who reside at, or receive disability services on, the premises.

(3)  An authorised officer may enter premises under subsection (1) at any time without prior warning to the owner of, or any occupier of, the premises.

(4)  An authorised officer who enters premises under subsection (1) must ensure that, if the authorised officer enters a part of the premises designated for the private use of a person with disability while the person is present in that part of the premises, the authorised officer immediately tells the person the purposes for which the authorised officer has entered the premises.

(5)  An authorised officer who enters premises under subsection (1) must, at the request of a person on the premises, show the person proof that the officer is authorised to enter the premises or leave the premises as soon as practicable after the request is made.

(6)  An authorised officer is not authorised to use force to enter premises under this Act.

(7)  A police officer may, at the request of an authorised officer who would only be able to enter premises for the purposes of this section by using force, use such force as is reasonably necessary to enable the authorised officer to enter the premises.

72.   Additional requirements where private grant recipient’s premises entered

(1)  An authorised officer may enter the premises of a private grant recipient only if the officer has made reasonable attempts to give at least 48 hours' prior notice to a person who resides at the premises.

(2)  Despite subsection (1) , an authorised officer is not required to make reasonable attempts to give at least 48 hours' prior notice, to a person who resides at the premises of a private grant recipient, if the officer is reasonably of the opinion that it is necessary to enter the premises without notice in order to ascertain whether –

(a) a person with disability is receiving the care and support that is necessary or desirable for the person's health and wellbeing; or

(b) a person with disability is safe.

(3)  An authorised officer may only enter the premises of a private grant recipient before 7 a.m., or after 7 p.m., if it is reasonably necessary to do so in order to ascertain whether –

(a) a person with disability is receiving, at the premises, or from a person who resides at the premises, the care and support that is necessary or desirable for the health and wellbeing of the person; or

(b) a person with disability is safe.

(4)  An authorised officer who enters the premises of a private grant recipient must as soon as is practicable tell a person on the premises, and any person with disability on the premises, the purposes for which the authorised officer has entered the premises.

73.   Rights of authorised officers after entry of premises

(1)  An authorised officer who enters premises under section 71 may take any of the following actions on the premises, in so far as it is necessary to do so for the purposes for which, under section 71 , the officer has entered the premises:

(a) inspect the premises;

(b) open any container, filing cabinet or storage facility that is on the premises;

(c) request a person on the premises to provide documents or records to the officer;

(d) inspect any documents or records on the premises;

(e) take copies of, or request a person on the premises to make copies of, any documents or records that are on the premises or provided to the officer.

(2)  An authorised officer who enters premises under section 71 may request the following persons to answer questions in relation to the provision of disability services or other goods or services or the carrying out of research under a disability support grant:

(a) any employee of a disability services provider or grant recipient;

(b) a private grant recipient;

(c) any person with disability, or other person, who is on the premises.

(3)  A person with disability who is requested under subsection (2) to answer questions has the right to –

(a) request that another person be present when the person with disability answers the questions; and

(b) have another person be present, and to be assisted by that other person, when answering the questions.

(4)  If an authorised officer has entered premises under section 71 , the disability services provider or grant recipient (other than a person with disability) or any employee of the disability services provider or grant recipient –

(a) must permit the authorised officer to ask employees of the disability services provider or grant recipient, or any person who is on the premises, questions in relation to –

(i) the provision of disability services or other goods or services; or

(ii) the carrying out of research; and

(b) must not –

(i) prohibit a person of whom a question is asked under paragraph (a) from answering the question; or

(ii) threaten or punish a person of whom a question is asked under paragraph (a) if the person answers or were to answer such a question; and

(c) must permit an authorised officer to speak in private with employees of the provider or grant recipient or any person who is on the premises.

Penalty:  Fine not exceeding 50 penalty units.

(5)  A disability services provider, grant recipient (other than a person with disability) or any employee of a disability services provider or grant recipient must not impede an authorised officer from performing or exercising the authorised officer's functions or powers under this Act.

Penalty:  Fine not exceeding 50 penalty units.

(6)  If a grant recipient or an employee of a grant recipient fails to comply with a requirement of this section, that failure may be taken into account in determining whether or not the grant may be terminated or refused.

PART 13 - Review of Decisions

74.   Definitions

In this Part –

reviewable decision means any of the following decisions:

(a) a decision to approve, or refuse to approve, the appointment of an appointed program officer under section 62 ;

(b) a decision to impose any conditions or limitations on an approval to appoint an appointed program officer under section 62 ;

(c) a decision to amend or revoke an approval to appoint an appointed program officer under section 63 ;

(d) a decision to approve, or refuse to approve, the appointment of a person as an independent person under section 66 ;

(e) a decision to impose any conditions or limitations on an approval to appoint an independent person under section 66 ;

(f) a decision to amend or revoke an approval to appoint an independent person under section 66 ;

(g) a decision to authorise, or refuse to authorise, the use of a type of restrictive practice, or a restrictive practice, in relation to a person with disability under section 52 or 58 ;

(h) a decision to impose any condition or limitation on the grant of an authorisation for the use of a type of restrictive practice in relation to a person with disability under section 53 ;

(i) a decision to amend or revoke under section 54 an authorisation granted under section 52 ;

(j) a decision to give a direction under section 59 ;

(k) a decision prescribed by the regulations.

75.   Internal review

(1)  The Senior Practitioner must prepare and implement a process for the internal review of reviewable decisions.

(2)  A person aggrieved by a reviewable decision of the Senior Practitioner, or by a reviewable decision of a delegate of the Senior Practitioner, may apply in writing for an internal review of that decision by the Senior Practitioner or delegate.

(3)  If a person aggrieved by a reviewable decision applies for an internal review under subsection (2) , the Senior Practitioner –

(a) is to undertake and complete the internal review in accordance with the process prepared and implemented under subsection (1) ; and

(b) in undertaking the internal review, is to –

(i) observe the rules of natural justice; and

(ii) ensure that any delegate of the Senior Practitioner who is engaged in the review process was not involved in the making of the decision under review.

(4)  An application for the internal review of a reviewable decision does not, of itself, affect the operation of the decision or prevent the taking of action to implement the decision.

(5)  The Senior Practitioner is to notify the person who applied for the internal review of a reviewable decision of the result of that review as soon as practicable after the review has been completed.

76.   External review

(1)  If the Senior Practitioner, or a person acting as the delegate of the Senior Practitioner, makes a reviewable decision, and an internal review of that decision has been completed in accordance with section 75 , a person aggrieved by the outcome of the internal review may apply to the Tribunal for a review of the reviewable decision.

(2)  Unless otherwise accepted by the Tribunal, an application under subsection (1) is to be made  –

(a) in writing; and

(b) within 28 days of the person who is making the application being informed of the result of the internal review.

(3)  Subject to any order made by the Tribunal, an application for the review of a reviewable decision does not, of itself, operate to stay or suspend the decision to which the application relates.

(4)  Unless otherwise specified in this Act, the provisions of the Tasmanian Civil and Administrative Tribunal Act 2020 apply to an application to the Tribunal under this Act.

PART 14 - Offences

77.   Offences relating to intimidation

Without reasonable excuse, a person must not persuade or attempt to persuade by threat or intimidation another person to –

(a) refrain from making to the Commissioner, the Senior Practitioner or any other person a report or a complaint; or

(b) withdraw a report or a complaint; or

(c) fail to cooperate with the Commissioner, the Senior Practitioner or any other person who is performing or exercising a function or power under this Act; or

(d) fail to provide information or a document to the Commissioner, Senior Practitioner or any other person who is performing a function or exercising a power under this Act; or

(e) provide information or a document that is false or misleading in a material particular, or to provide information or a document in a manner that will make the information or document false or misleading in a material particular, to the Commissioner, the Senior Practitioner or any other person performing a function or exercising a power under this Act.

Penalty:  Fine not exceeding 100 penalty units.

78.   Offences relating to reprisals

(1)  A person must not take, attempt to take or conspire to take a reprisal against another person because, or in the belief that, any person has –

(a) made or may make a report to the Commissioner, the Senior Practitioner or any other person who performs a function or exercises a power under this Act; or

(b) cooperated, may cooperate or is cooperating with the Commissioner, the Senior Practitioner or any other person who performs a function or exercises a power under this Act; or

(c) provided, may provide or is providing documents or information, by answering questions or otherwise, to the Commissioner, Senior Practitioner or any other person who performs a function or exercises a power under this Act.

Penalty:  Fine not exceeding 100 penalty units.

(2)  Without limiting subsection (1) , the following are examples of a reprisal:

(a) failing to employ a person;

(b) dismissing a person from employment;

(c) penalising or discriminating against a person in the course of the person’s employment.

(3)  It is sufficient for a contravention of subsection (1) if a ground specified in subsection (1) is a significant factor in inducing the person to take, attempt to take or conspire to take a reprisal.

(4)  An attempt to take a reprisal includes an attempt to induce a person to take a reprisal.

79.   Offences relating to obstruction, &c.

A person must not obstruct, hinder, resist or improperly influence, or attempt to obstruct, hinder, resist or improperly influence, a person who is performing a function or exercising a power under this Act.

Penalty:  Fine not exceeding 50 penalty units.

80.   Offences relating to provision of information, &c.

(1)  Without reasonable excuse, a person who is required to do so under this Act must not refuse or fail to –

(a) attend before a person for the purpose of providing information; or

(b) be sworn or make an affirmation; or

(c) provide information by answering a question or otherwise; or

(d) produce a document.

Penalty:  Fine not exceeding 50 penalty units.

(2)  A person must not –

(a) provide to the Commissioner, the Senior Practitioner or any other person who is performing or exercising a function or power under this Act information that the person knows is false or misleading in a material particular; or

(b) refuse or fail to include, in information provided to a person who is performing or exercising a function or power under this Act, other information without which the information provided is, to the knowledge of the person, false or misleading in a material particular.

Penalty:  Fine not exceeding 50 penalty units.

(3)  A person must not provide to the Commissioner, the Senior Practitioner or any other person performing or exercising a function or power under this Act a document containing information that the person knows is false or misleading in a material particular without –

(a) indicating that the document is false or misleading and the manner in which it is false or misleading; and

(b) giving correct information if the person has, or can reasonably obtain, the correct information.

Penalty:  Fine not exceeding 50 penalty units.

(4)  Without limiting subsection (1) , it is a reasonable excuse to refuse or fail to provide information by answering a question or otherwise or to produce the whole or part of a document if to do so would disclose or provide exempt information.

(5)  A person is not liable to any penalty under the provisions of any other Act because the person, when required to do so under this Act –

(a) provided information that is not exempt information; or

(b) produced a document that does not contain exempt information; or

(c) answered a question if the answer does not disclose exempt information.

81.   Proceedings for offences

(1)  Unless otherwise specified, proceedings for an offence –

(a) are to be dealt with summarily; and

(b) may be instituted by any one of the following persons:

(i) the Secretary;

(ii) the Commissioner;

(iii) the Senior Practitioner;

(iv) a prescribed person or class of persons; and

(c) must be instituted within 3 years after the day on which the offence is alleged to have been committed.

(2)  A court of competent jurisdiction may permit proceedings to be instituted outside of the period specified in subsection (1)(c) .

PART 15 - Miscellaneous

82.   Sharing of information

(1)  In this section –

information-sharing entity means –

(a) a specified person; or

(b) a defined entity; or

(c) a controlling authority of an approved hospital, approved assessment centre or secure mental health unit, each within the meaning of the Mental Health Act 2013 ; or

(d) the person in charge of a disability services provider; or

(e) the person in charge of an organisation that receives a referral from the Senior Practitioner or a Community-Based Intake Service, within the meaning of the Children, Young Persons and Their Families Act 1997 ; or

(f) the Chief Psychiatrist, within the meaning of the Mental Health Act 2013 ; or

(g) the NDIS Quality and Safeguards Commission; or

(h) the NDIS Commissioner; or

(i) the National Disability Insurance Agency established as the National Disability Insurance Scheme Launch Transition Agency by section 117 of the National Disability Insurance Scheme Act 2013 of the Commonwealth; or

(j) the Health Complaints Commissioner; or

(k) the Anti-Discrimination Commissioner appointed under the Anti-Discrimination Act 1998 ; or

(l) the Ombudsman; or

(m) Tasmania Police; or

(n) the Independent Regulator appointed under the Child and Youth Safe Organisations Act 2023 ; or

(o) the Commissioner for Children and Young People; or

(p) any other prescribed person or prescribed organisation;

specified person means –

(a) a person registered under the Health Practitioner Regulation National Law (Tasmania); or

(b) an allied health professional who –

(i) is engaged in providing services or support to a person with disability; and

(ii) is accredited by, or registered with, a professional association of allied health professionals; or

(c) an appointed program officer; or

(d) an independent person for a person with disability; or

(e) a community visitor; or

(f) a police officer; or

(g) a probation officer appointed or employed under section 5 of the Corrections Act 1997 ; or

(h) a principal or a teacher in any educational institution (including a kindergarten); or

(i) a person who provides child care, or a child care service, for fee or reward; or

(j) a person concerned in the management of a child care service licensed under the Child Care Act 2001 ; or

(k) any other person who is employed or engaged as an employee for, of or in, or who is a volunteer in –

(i) an Agency, within the meaning of the State Service Act 2000 , that provides health, welfare, education, child care or residential services wholly or partly for children; or

(ii) an organisation that receives any funding from the Crown for the provision of such services.

(2)  Subject to subsection (3) , the Commissioner or the Senior Practitioner may –

(a) provide information to an information-sharing entity; or

(b) require an information-sharing entity to provide information to the Commissioner or the Senior Practitioner.

(3)  The Commissioner or the Senior Practitioner may only provide information in relation to a person with disability, or require information in relation to a person with disability to be provided to the Commissioner or the Senior Practitioner, if the Commissioner or the Senior Practitioner is satisfied that –

(a) the information is necessary –

(i) to enable an appropriate assessment of the needs of the person to be made; or

(ii) to determine whether any goods or services provided, or to be provided, to the person are appropriate; or

(iii) for the safety, welfare or wellbeing of the person or the safety of other persons; and

(b) where the person with disability is capable of giving their consent to the provision of the information to another person and the information is not required for the safety of the person with disability or other persons, the person with disability has given that consent.

(4)  An information-sharing entity required to provide information to the Commissioner or the Senior Practitioner under subsection (2) must, within the period specified by the Commissioner or the Senior Practitioner –

(a) provide the information; or

(b) if the information-sharing entity does not have the information, provide the Commissioner or the Senior Practitioner with notice in writing that it cannot provide the information for that reason.

Penalty:  Fine not exceeding 5 penalty units.

(5)  An information-sharing entity may do either or both of the following in relation to information in its possession in relation to a person with disability:

(a) provide the Commissioner or the Senior Practitioner with the information, whether or not the Commissioner or the Senior Practitioner has required the information to be provided;

(b) provide another information-sharing entity with the information if that entity is involved with, or is likely to be involved with, the person with disability or a person who is related to the person.

(6)  An information-sharing entity may only provide information in relation to a person with disability under subsection (5) to an information-sharing entity if –

(a) it is satisfied that it is necessary to do so –

(i) to enable an appropriate assessment of the needs of the person to be made; or

(ii) to determine whether any goods or services provided, or to be provided, to the person are appropriate; or

(iii) for the safety, welfare or wellbeing of the person or the safety of other persons; and

(b) where the person with disability is capable of giving their consent to the provision of the information to another person and the information is not required for the safety of the person with disability or other persons, the person with disability has given that consent.

(7)  A person providing information under this Act –

(a) cannot, by virtue of providing the information, be held to have breached any code of professional etiquette or ethics, to have departed from any accepted standards of professional conduct or to have contravened any Act; and

(b) to the extent that the person has acted in good faith, incurs no civil or criminal liability in respect of providing the information.

83.   Confidentiality

(1)  In this section –

protected information means personal information in any recorded format about a natural person from which the identity of the natural person is apparent or is reasonably ascertainable.

(2)  A person who performs or has performed functions under this Act must not disclose protected information to another person except in a circumstance specified in subsection (3) .

Penalty:  Fine not exceeding 50 penalty units.

(3)  A person may disclose protected information in one or more of the following circumstances:

(a) the information is disclosed in the performance of a function under, or for the purposes of, this Act;

(b) the disclosure is for a purpose authorised, or is required, by this Act or any other Act;

(c) the disclosure is otherwise required or permitted by law;

(d) for the purposes of legal proceedings;

(e) the disclosure is made for or in connection with the reporting or lawful investigation of a crime or unlawful act (whether actual or prospective);

(f) the disclosure is –

(i) discussed with the person to whom the information relates in a language and form that the person can understand; and

(ii) made with the agreement of the person without coercion, pressure or undue influence being used to obtain the agreement;

(g) there are reasonable grounds to suspect that there is a risk of significant harm to a person with disability, or to a child or other vulnerable person, and the disclosure is reasonably necessary to prevent that harm;

(h) the disclosure is in a form that does not enable the identification of the person to whom the information relates;

(i) in prescribed circumstances.

84.   Protection from liability

(1)  This section applies to the following persons:

(a) the Minister;

(b) the Secretary;

(c) the Commissioner;

(d) the Senior Practitioner;

(e) an authorised officer;

(f) a member of the Disability Inclusion Advisory Council;

(g) an appointed program officer;

(h) an independent person for a person with disability;

(i) a community visitor;

(j) any other person performing a function or exercising a power under this Act.

(2)  An action does not lie against any person to whom this section applies, or to any person acting under the direction of any person to whom this section applies, in respect of any act done in good faith and in the performance, or purported performance, of a function imposed, or the exercise, or purported exercise, of a power conferred, by or under this Act.

85.   Protection of employees or contractors who assist Commissioner or Senior Practitioner

(1)  In this section –

employer includes –

(a) a person who engages a person as a contractor for services; and

(b) a person acting on behalf of an employer.

(2)  An employer must not take or threaten to take detrimental action against an employee or contractor because the employee or contractor assists, or proposes to assist, the Commissioner or the Senior Practitioner with any function in relation to a report or investigation relating to the abuse, neglect, coercion or exploitation of a person with disability.

Penalty:  Fine not exceeding 50 penalty units.

86.   Delegation by Secretary

The Secretary may delegate any of the Secretary’s powers or functions under this Act other than this power of delegation.

87.   Regulations

(1)  The Governor may make regulations for the purposes of this Act.

(2)  Without limiting the generality of subsection (1) , the regulations may –

(a) prescribe fees and charges for the purposes of this Act; and

(b) prescribe standards in accordance with section 42 .

(3)  The regulations may –

(a) provide that a contravention of, or a failure to comply with, any of the regulations is an offence; and

(b) in respect of such an offence, provide for the imposition of a fine not exceeding 10 penalty units.

(4)  The regulations may apply, adopt or incorporate all or any of the provisions of a code or guidelines published by any organisation or body for the regulation of any matter to which this Act applies and the provisions may be applied, adopted or incorporated as they currently exist, as amended by the regulations or as amended from time to time.

(5)  The regulations may –

(a) be of limited or general application; and

(b) be made so as to apply differently according to matters, limitations or restrictions, whether as to time, circumstance, location or otherwise, specified in the regulations; and

(c) authorise any matter to be determined, applied or regulated by any specified person or entity.

(6)  The regulations may –

(a) provide for savings and transitional matters that are necessary or expedient as a consequence of the commencement of any provision of this Act; and

(b) provide for any of those savings or transitional matters to take effect when this Act commences or on a later day specified in the regulations, whether the day so specified is before, on or after the day on which the regulations are made.

88.   Review of Act

(1)  In this section –

independent review means a review carried out by persons who –

(a) in the Minister's opinion, are appropriately qualified for that task; and

(b) comprise one or more persons who are not employees of the State or Commonwealth or of any agency of the State or Commonwealth.

(2)  The Minister is to cause an independent review of the operation of this Act to –

(a) commence no sooner than 18 months after the commencement of this Act; and

(b) be completed within 3 years after the commencement of this Act.

(3)  The persons who carry out the review are to give the Minister a written report on the review’s outcome.

(4)  The Minister is to cause a copy of the report to be tabled in each House of Parliament within 10 sitting-days of that House after the Minister receives the report under subsection (3) subsection (3).

89.   Administration of Act

Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990  –

(a) the administration of this Act is assigned to the Minister for Disability Services; and

(b) the department responsible to that Minister in relation to the administration of this Act is the Department of Premier and Cabinet.

90.   Legislation repealed

The legislation specified in Schedule 3 is repealed.

91.   Legislation rescinded

The legislation specified in Schedule 4 is rescinded.

SCHEDULE 1 - Membership and Meetings of Disability Inclusion Advisory Council

Section 23

PART 1 - Preliminary

1.   Interpretation of Schedule 1

In this Schedule –

chairperson means the chairperson of the Disability Inclusion Advisory Council;

deputy chairperson means the deputy chairperson of the Disability Inclusion Advisory Council;

member means a member of the Disability Inclusion Advisory Council.

PART 2 - Membership of Disability Inclusion Advisory Council

1.   Term of office

(1) A member is appointed for a period, not exceeding 3 years, specified in the member's instrument of appointment and, if eligible, may be reappointed.

(2) A member may serve any number of terms but not more than 2 terms, of whatever duration, in succession.

2.   Holding other office

The holder of an office who is required under the terms of the holder’s employment to devote the whole of the holder’s time to the duties of that office is not disqualified from –

(a) holding that office and also the office of member; or

(b) accepting any remuneration payable to a member.

3.   State Service Act 2000

(1) The State Service Act 2000 does not apply in relation to a person in the person’s capacity as a member.

(2) A person may hold the office of member in conjunction with State Service employment.

4.   Remuneration and conditions of appointment

(1) A member is entitled to be paid such remuneration and allowances as the Minister determines.

(2) A member who is a State Service officer or State Service employee is not entitled to remuneration or allowances under this clause except with the approval of the Minister administering the State Service Act 2000 .

(3) A member holds office on such conditions, in relation to matters not provided for by this Act, as are specified in the member's instrument of appointment.

5.   Vacation of office

(1) A member vacates office if the member –

(a) dies; or

(b) resigns; or

(c) is removed from office under subclause (2) .

(2) The Minister may remove a member from office if –

(a) the Minister is of the opinion that the member is unable to perform the functions of the office; or

(b) the Minister is of the opinion that the member neglected the functions of the office or is negligent in the carrying out of those functions; or

(c) the member is absent from 3 consecutive meetings of the Disability Inclusion Advisory Council without the permission of the Disability Inclusion Advisory Council; or

(d) the member becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with the member's creditors or makes an assignment of the member's remuneration or estate for their benefit; or

(e) the Minister is of the opinion that any other act or omission of the member has adversely affected the operation of the Disability Inclusion Advisory Council.

6.   Filling of vacancies

If the office of a member becomes vacant, the Minister may appoint a person to the vacant office for the remainder of that member's term of office.

7.   Validation of proceedings

(1) An act or proceeding of the Disability Inclusion Advisory Council, or of a person acting under the direction of the Disability Inclusion Advisory Council, is not invalidated by reason only that at the time when the act or proceeding was done, taken or commenced there was a vacancy in the office of a member.

(2) All acts or proceedings of the Disability Inclusion Advisory Council, or of a person acting under the direction of the Disability Inclusion Advisory Council, are, despite any subsequent discovery of a defect in the appointment of a member or that any other person was disqualified from acting as, or capable of being, a member, as valid as if the member had been duly appointed and was qualified to act as, or capable of being, a member, and as if the Disability Inclusion Advisory Council had been fully constituted.

8.   Presumptions

In any proceedings by or against the Disability Inclusion Advisory Council, unless evidence is given to the contrary, proof is not required of –

(a) the constitution of the Disability Inclusion Advisory Council; or

(b) the appointment of any member.

PART 3 - Meetings of Disability Inclusion Advisory Council

1.   Convening of meetings

(1) The chairperson, after giving each member reasonable notice of a meeting –

(a) may convene a meeting at any time; and

(b) must convene a meeting when requested to do so by 3 or more other members.

(2) If the chairperson is absent from duty or otherwise unable to perform the duties of the office, a meeting may be convened, after reasonable notice of the meeting has been given, by –

(a) 3 or more other members; or

(b) a person authorised by the Disability Inclusion Advisory Council to do so.

(3) For the purposes of subclauses (1) and (2) , what constitutes reasonable notice is to be determined by the Disability Inclusion Advisory Council.

(4) The Disability Inclusion Advisory Council must hold no fewer than 4 meetings in each calendar year.

2.   Presiding at meetings

(1) The chairperson or, in the absence of the chairperson, the deputy chairperson shall preside at any meeting of the Disability Inclusion Advisory Council at which the chairperson or, as the case may require, the deputy chairperson is present.

(2) If the chairperson and deputy chairperson are not present at a meeting of the Disability Inclusion Advisory Council, the members present shall appoint a member to preside at the meeting.

3.   Quorum and voting at meetings

(1) At a meeting of the Disability Inclusion Advisory Council, a quorum is constituted by a majority of the total number of members appointed.

(2) A meeting of the Disability Inclusion Advisory Council at which a quorum is present is competent to transact any business of the Disability Inclusion Advisory Council.

(3) At a meeting of the Disability Inclusion Advisory Council –

(a) a question is decided by a majority of votes of the members present and voting; and

(b) the member presiding has a deliberative vote and, in the event of an equality of votes, also a casting vote.

4.   Conduct of meetings

(1) Subject to this Act, the Disability Inclusion Advisory Council may regulate the calling of, and the conduct of business at, its meetings as it considers appropriate.

(2) The Disability Inclusion Advisory Council may permit members to participate in a particular meeting, or all meetings, by –

(a) telephone; or

(b) video conference; or

(c) any other means of communication approved by the Council.

(3) A member who participates in a meeting under a permission granted under subclause (2) is taken to be present at the meeting.

(4) Without limiting subclause (1) , the Disability Inclusion Advisory Council may allow a person to attend a meeting for the purpose of advising or informing it on any matter.

5.   Minutes

The Disability Inclusion Advisory Council is to keep minutes of its proceedings and is to distribute the minutes to members of the Disability Inclusion Advisory Council and to the Commissioner.

6.   Resolutions without meetings

(1) If all members sign a document containing a statement that they are in favour of a resolution in the terms set out in the document, a resolution in those terms is taken to have been passed at a meeting of the Disability Inclusion Advisory Council held on the day on which the document is signed or, if the members do not sign it on the same day, on the day on which the last of the members signs the document.

(2) If a resolution is taken to have been passed under subclause (1) , each member is to be –

(a) advised immediately of the matter; and

(b) given a copy of the terms of the resolution.

(3) For the purposes of subclause (1) , 2 or more separate documents containing a statement in identical terms, each of which is signed by one or more members, are taken to constitute one document.

7.   General procedure

Except as provided by this Act, the Disability Inclusion Advisory Council may regulate its own proceedings.

8.   Presumption

In any proceedings by or against the Disability Inclusion Advisory Council, unless evidence is given to the contrary, proof is not required of –

(a) any resolution of the Disability Inclusion Advisory Council; or

(b) the presence of a quorum at any meeting of the Disability Inclusion Advisory Council.

SCHEDULE 2 - Terms of appointment of Commissioner

Section 27

1.   Duration of appointment

(1) The Commissioner holds office for such term, not exceeding 5 years, as is specified in the instrument of appointment.

(2) A person who has been appointed to the office of Commissioner may from time to time be reappointed for a single further term, not exceeding 5 years, as may be specified in the instrument of appointment.

2.   Terms of appointment

(1) The Commissioner is entitled to the remuneration and allowances, and holds office subject to the terms and conditions, as specified in the instrument of appointment.

(2) The State Service Act 2000 does not apply in relation to the Commissioner.

(3) A person appointed as the Commissioner may hold that office in conjunction with State Service employment.

(4) The Commissioner is an employee for the purposes of the Public Sector Superannuation Reform Act 2016 .

3.   Vacation of office

A person appointed as the Commissioner vacates that office if the person –

(a) dies; or

(b) resigns; or

(c) is removed from office under clause 4 .

4.   Removal from office

(1) The Minister may remove the Commissioner from office if the Commissioner –

(a) is, without good reason, absent from the office of Commissioner for an extended period of time; or

(b) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors or makes an assignment of any remuneration or estate for their benefit; or

(c) is convicted in Tasmania of any crime or offence punishable by imprisonment for a term of 12 months or longer or elsewhere of any crime or offence which if committed in Tasmania would be punishable by imprisonment for a term of 12 months or longer; or

(d) is convicted of an offence against this Act.

(2) The Minister may remove the Commissioner from office if satisfied that the Commissioner –

(a) is unable to perform the duties of office adequately or competently; or

(b) has neglected to perform those duties; or

(c) is guilty of misconduct of such a nature that makes the Commissioner unsuitable to hold that office.

5.   Acting Commissioner

(1) In this section –

acting Commissioner means the person appointed to act as the Commissioner under subclause (2) .

(2) The Minister may appoint a person to act as the Commissioner for a term, of not more than 12 months, specified in the instrument of appointment, if –

(a) there is a vacancy in the office of Commissioner; or

(b) the Commissioner is absent from the State or unable to perform the duties of the office.

(3) A person appointed under subclause (2) is to be a person with disability.

(4) A person appointed as acting Commissioner is, for the term of the person’s appointment as acting Commissioner, entitled to be paid such remuneration and allowances as the Minister determines.

(5) A person appointed as acting Commissioner, while so acting, may perform the functions and exercise the powers of the Commissioner as fully and effectively as the Commissioner.

6.   Defect does not invalidate appointment

An appointment of a person as Commissioner is not invalid merely because of a defect or irregularity in relation to that appointment.

SCHEDULE 3 - Legislation repealed

Section 90

SCHEDULE 4 - Legislation rescinded

Section 91